Outfront Media, Inc.

Read the official release (oshrc.gov)

Plain-English summary

An OSHA compliance officer observed four Outfront Media employees working more than four feet above ground on a billboard without fall protection. OSHA cited fall protection, fall-hazard training, and workplace hazard-assessment requirements, with a proposed grouped penalty of $12,675. The judge found that Outfront had a clear 100-percent tie-off policy, provided initial and recurring fall-protection training, supplied appropriate equipment, and monitored and enforced its rules. The Secretary did not prove that reasonable diligence would have disclosed the crew's conduct or that a reasonably prudent employer would have provided different training. The employees had also assessed the billboard during an earlier site visit and determined the protective equipment needed for the job. Because the Secretary failed to prove the three alleged violations, all items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.28(b)(1)(i); 29 C.F.R. § 1910.30(a)(3)(i); 29 C.F.R. § 1910.132(d)(1)
• Outcome: All three serious items and the proposed $12,675 grouped penalty were vacated.
• Key point: A crew's failure to follow fall-protection rules does not establish employer liability when the Secretary cannot prove deficient training, hazard assessment, or reasonable diligence.

Full text (OSHRC public release)

OUTFRONT MEDIA, INC., OSHRC Docket No. 17-2202

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 D ocket No . 17- 2202

OUTFRONT MEDIA, INC.,

Respondent .

APPEARANCES:

For the Complainant:

R.
Peter Nessen, Esq.

Senior Trial Attorney

U.S. Department of Labor

Boston, Massachusetts

For the Respondent:

Richard J. Antonelli, Esq.

Brian D. Lipkin, Esq.

Babst, Calland, Clements and Zomnir, P.C.

Pittsburgh, Pennsylvania

BEFORE:
   William S. Coleman

Administrative Law Judge

The Respondent,
Outfront
Media, Inc. (Outfront), is a
corporation
in
the
business of
outdoor advertising.

One of the thousands of
billboards
that Outfront owns and maintains
nationwide is
located
on N. Main Street
in Waterbury, Connecticut. On October 5, 2017,
a compliance
safety and health
officer (CO) from the Occupational Safety and Health Administration (OSHA) observed
Outfront
employees working
on that
billboard
while
more than four feet above ground
level
without
any means or method of
fall protection. (T. 24). An
OSHA
inspection and investigation
ensued that
resulted in
OSHA
issuing
to
Outfront
a serious citation
(Citation)
that
alleged
three grouped
violations
(designated citation items 1a, 1b & 1c)
and
that
proposed
a
penalty of
$12,675.

Item 1a alleges
a violation of
29 C.F.R. § 1910.28(b)(1)(i) for failing to
ensure that employees
repairing
the
billboard
on October 5, 2017
“were protected from the hazard of falling more than
four
feet to the ground”
by
using
appropriate means or
methods
of fall protection.

Item 1b alleges
a violation of 29 C.F.R.
§
1910.30(a)(3)(i)
for failing to ensure that employees
repairing
billboards
“were trained in fall hazards
and how to avoid such hazards.”

Item 1c alleges
a violation of 29 C.F.R.
§
1910.132(d)(1) for failing to
“ensure that a
Workplace
Hazard
Assessment
in ‘tasks and sites’ specifics
was conducted to determine necessary and appropriate types of personal protective equipment (PPE) for the employees”
who would be
repairing
the billboard
on October 5, 2017.

Outfront
timely contested the
Citation
and proposed penalty
and thereby brought the matter before the
independent
Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act (Act). 29 U.S.C. § 659(c). The Commission docketed the matter on December 21, 2017. The Secretary
of Labor (Secretary)
thereafter filed his formal complaint
that
re-alleged
the allegations and proposed penalty
set forth in the
Citation. The Commission’s Chief Judge assigned the matter to the undersigned
for hearing and decision. The hearing was conducted in Hartford, Connecticut, on November 8–9, 2018. Post-hearing briefing was completed on May 10, 2019.

The principal issues for decision are as follows:

· Did the Secretary prove by a preponderance of the evidence that Outfront
failed to exercise reasonable diligence to discover the fall protection violations? (Item 1a;
29 C.F.R.
§
1910.28(b)(1)(i)).

Decision : No. The Secretary did not prove
Outfront
had constructive
knowledge of the
violative conduct.

· Did the Secretary prove by a preponderance of the evidence that
a reasonably prudent employer
in Outfront’s circumstances
would have provided different training than
Outfront
provided on
the nature of fall hazards
in the work area
and how to
recognize
them?

(Item 1b;
29 C.F.R.
§ 1910.30(a)(3)(i)).

Decision : No. The evidence is insufficient to establish that a reasonably prudent employer would have provided different training.

· Did the Secretary prove by a preponderance of the evidence that
Outfront
failed to
assess
the
Waterbury
billboard
to determine
whether
hazards were present, or likely to be present,
that would
necessitate the use of
fall protection equipment
and other PPE? (Item 1c;
29 C.F.R.
§ 1910.132(d)(1)).

Decision : No. Outfront conducted a hazard assessment that met the requirements of the cited standard.

Because
the Secretary did not meet his burden of proof
on
these issues, all three citation items must be vacated.

FINDINGS OF FACT

The following facts were established by at least a preponderance of the evidence:

1. Outfront
   is a corporation
   that
   constructs, installs, and maintains billboards
   for the
   display
   of
   advertising
   along
   roads and
   highways. (T.
   101-102, 155-57, 287). Outfront
   employs
   approximately 2,000
   workers
   in approximately 35 markets
   nationwide. (Answer, ¶ 2; T.
   163,
   263,
   270). Outfront is an employer and is engaged in a business affecting interstate commerce. (Answer, ¶ 3).

2. The
   operations office
   for
   Outfront’s
   designated
   “Hartford/New Haven” Connecticut market
   is
   in
   North Haven,
   Connecticut,
   and is
   staffed by approximately nine employees.

(T. 163; Ex. R-5). The North Haven office is responsible for about 1,000 billboard displays in its market area. (T. 230-31).

3. Outfront
   maintains
   two basic types of
   billboards:
   “bulletin”
   billboards and
   “poster”
   billboards. Bulletin billboards are generally higher above ground level than poster billboards.

(T. 233-34).

The
display area of bulletin
billboards
is generally 14x48 feet, while the display area of
the
poster
billboards
is generally 10x22
feet. (T. 220-21). All the bulletin billboards
in Outfront’s Hartford/New Haven market
have integrated engineered anchor points
or cable-based horizontal and vertical lifeline systems, either as part of their original construction or
by
subsequent modification. (T.
171,
221, 233-34, 362-63). Outfront is in the process of retrofitting the
poster
billboards
in the Hartford/New Haven market
with
integrated
engineered
anchorage points
or cable-based
engineered
lifeline systems, but
some of the poster billboards
in that
market have not yet been retrofitted with
such engineered
systems. (T.
38, 101-102, 220-221,
277-80,
233-34,
362-63).

4. A small
   proportion
   of
   the
   bulletin
   billboards
   in the Hartford/New Haven market
   have
   what are sometimes described as “passive” fall protection systems, which are
   systems
   integrated into the structure of the billboard
   that
   require no additional fall protection equipment to be donned by
   a
   worker. (T.
   212-213, 264,
   392-94,
   418-19).

5. Despite the
   differences between the
   bulletin
   billboards
   and poster billboards, work
   performed on
   either type involves similar hazards.

(T.
63-64,
145,
241-243,
273,
355-56, 363).

Work on both
bulletin
billboards and poster
billboards
is generally
performed
well
above ground
level
and
thus
gives
rise to fall hazards. (T. 145, 243, 273, 355, 363).

Fall Protection Training

6. Outfront provides all employees who work on its billboards fall protection training. (T.
   124, 157-58, 239, 287, 373-74). All employees receive the same training, regardless
   of
   whether a
   particular employee
   works predominately on poster billboards or bulletin billboards. (T. 124-25, 164).

7. As part of this training, employees are
   instructed on Outfront’s
   “Personal Protective Equipment
   &
   Fall Protection Policy”
   (Policy). Upon successful completion of training,
   each employee
   reviews a one-page document that sets forth the
   Policy and
   upon
   signing the document
   expressly certifies
   the following:

“MY SIGNATURE BELOW CERTIFIES THAT I UNDERSTAND AND WILL COMPLY WITH [OUTFRONT’S] POLICY AS STATED.” (T. 114, 182, 293; Ex. R-9). The
Policy states in relevant part:

In any situation where an employee is exposed
to
a potential fall hazard of greater than four (4) feet for general industry activities … fall protection equipment shall be
used to limit all free fall hazards to six (6) feet or less in accordance with applicable OSHA requirements, OUTFRONT safety rules, and jobsite condition s . All employees performing services on sign structures
MUST
wear a full body harness with shock-absorbing lanyards and double pelican hooks, and/or a
self-retracting
lifeline as necessary or required, provided by management. Management’s intent is for each employee to be tied off 100
% while working on the billboard. Employees
MUST BE AT ALL TIMES
attached to permanent safety cables or other appropriate anchorages while working on [Outfront’s] sign structures. If permanent safety cables are not in place, alternative fall protection equipment and methods MUST be used.

(Ex. R-9 (emphases in original)).

8. The
   Policy further states as follows:

Any employee who observes or suspects an unsafe condition is obligated to terminate any further activity on the jobsite, and immediately report the condition to the [Outfront] Operations Manager who will immediately
RED TAG
that jobsite as out-of-service until such time that proper repairs and/or corrections can be made to ensure a safe and healthy workplace.

( Id.
(emphasis in original)).

9. Each of
   the
   employees
   that the CO
   observed
   on the Waterbury billboard on October 5, 2017
   had
   undergone Outfront’s fall protection training,
   and
   each had
   certified in writing that
   he
   understood and would comply with the
   Policy. (Ex. R-9).

10. Outfront issues to each employee fall protection PPE for use on both bulletin billboards and poster billboards. The PPE provided
    includes
    a
    full body harness,
    connectors,
    lanyards,
    and
    tie-off adapters. (T.
    125-26,
    172-76,
    244,
    313,
    365-66; Exs.
    C-10,
    R-4
    & R-9). Employees
    travel to their job locations with
    their provided
    fall protection PPE. (T.
    27, 49, 87, 180-81, 217,
    230). Outfront
    provides appropriate
    training to
    its
    employees
    on how
    to identify, inspect, maintain,
    and
    wear
    all
    provided
    fall protection
    PPE. (Stipulation at
    T. 176).

11. As part of initial fall protection training for new employees,
    Outfront
    provides
    each employee
    a copy of
    its
    “Fall Protection Training Manual”
    (Manual).

(T. 36, 132,
181, 239, 292, 375-76; Ex. C-20).

12. The Manual provides
    general information about
    the
    fall hazards associated with elevated work. (Ex. C-20, p. 11). The Manual emphasizes that fall hazards
    are “one of the most common workplace hazards” and “one of the highest causes of death in the workplace.” ( Id. ). The Manual further
    informs
    that “complacency,” “horseplay,” and lack of housekeeping
    at a
    worksite can contribute to creating a fall hazard. ( Id. , p.
    19).

13. The Manual also provides
    information and instructions regarding
    the use and maintenance of
    the following:

a. three types of
fall protection systems – fall restraint, work positioning, and fall arrest
(Ex. C-20, pp.
23-25);

b. two types of
anchors
– certified and improvised
(Ex. C-20, pp. 29-33);

c. connectors (snap hooks, carabiners, 1
lanyards, and shock absorbers) (Ex. C-20, pp. 39-47);

d. body holding devices (harnesses) (Ex. C-20, pp. 51-56);

e. lifelines (vertical, horizontal, and self-retracting) (Ex. C-20, pp. 61-69);

f. ladders and other climbing systems (Ex. C-20, pp. 73-78); and

g. information on the calculation of fall distances. (Ex. C-20, pp. 80-81).

14. Outfront provides
    new employees initial fall protection
    training
    in a group setting.

(T.
109-110,
124,
162-63,
184-86, 283-84;
Exs. R-4 &
R-8).

15. The Operations Manager at Outfront’s
    North Haven
    office is Mr. Richard Bourne, and he is responsible for conducting
    fall protection training
    for
    the
    employees
    of
    that office. (T. 110, 158, 245).

16. The
    fall protection
    training
    that
    Mr. Bourne
    conducts at the North Haven office
    consists of
    the following:

a. Giving
a “pre-test”
to
assess
trainee
competency prior to training.
(T.
164-65,
288,
296; Ex. R-13);

b. Showing
fall protection
videos.

(T. 58, 184, 239, 288, 296, 374);

c. Making
a
PowerPoint
presentation titled “The ABCDs of Fall Protection.”

(T.
139-40, 165-68,
360; Ex. C-21);

d. Giving
a post-test to determine
post-training
competency.

(T.
186,
288,
291-92, 296; Ex.
R-13);

e. Demonstrating
how to use PPE
with the use of
a “prop kit.”

(T.
174,
244); and

f. Providing
practical instruction in
fall protection
and fall rescue
on an actual billboard.

(T.
158,
296).

17. The
    PowerPoint
    presentation addresses the following subjects:

a. Three types of anchor points:

(1) improvised anchors, which must be
capable of supporting
5,000 pounds
as determined
by a competent person;
(2) certified anchor points, which must be rated at 3,600 pounds by
a qualified person such as
an engineer; and
(3) engineered systems. (Ex. C-21, pp. 3-4).

b. A description of the “truck test,”
which pertains to identifying improvised anchors, as
is
described
in
¶
19,
infra . ( Id. , p. 3).

c. Examples of “bad” anchor points such as platforms, platform supports, and wooden stringers. ( Id. , pp. 4-5).

d. Examples of “good” anchor points such as engineered lifelines, engineered anchor points, and “significant structural components” like “vertical foundation beams” or “horizontal cross-members.” ( Id. , p. 5).

e. Examples of anchor adapters.

( Id. , p. 6).

f. The use of a rated ladder or a portable horizontal lifeline kit as an “alternative anchor point.” ( Id. , pp. 6-7).

g. The use and
inspection of body harnesses. ( Id. , pp. 7-9).

h. The use and inspection of connectors, including examples of
“good”
and
“bad”
connectors. ( Id. , pp. 10-12).

i. The use and inspection of lanyards. ( Id. , pp. 12-13).

j. Instructions on
the “threshold level”
of fall distance
when employees “must start to tie off.” ( Id. , p. 12).

k. Instructions on how to calculate a fall distance. ( Id. , pp. 13-14).

l. The use and inspection of self-retracting lifelines. ( Id. , p. 14-15).

18. Mr. Bourne
    presents
    the
    PowerPoint
    “slide by slide,”
    explaining
    the content of
    each
    slide,
    and
    invites
    questions. (T. 166, 283-84).

19. During the presentation,
    Mr. Bourne explains that an improvised anchor point must be rated to
    support
    5,000 pounds. (T. 168). Because “nobody knows what it weighs to pick up 5,000 pounds,” Mr. Bourne instructs his employees
    on a
    commonly used
    rule of thumb that is known as
    the “truck test.” (T. 168; Ex. R-7, pp. 7-8).

The
“truck test” entails a competent person assessing
whether
a potential
anchor point could
support
the weight of a
full-sized
pickup truck
such as a Ford F-150. (T. 168, 383-84). A
potential
anchor point
would be deemed unsuitable for use as an improvised anchor point if it were assessed to be
incapable of
supporting
such a load. (T. 168).

20. Mr. Bourne also discusses
    unsuitable
    (“bad”)
    anchor points
    with his employees,
    such as
    railings,
    wood members, or platforms. (T. 169-70).

21. Throughout the course of training, Mr. Bourne
    emphasizes
    Outfront’s
    requirement
    that employees
    always use fall protection when working at height.

Outfront
nominally refers
to
this
as
its
“100% tie-off”
policy,
which is
described in more detail
in
¶¶
38-40,
infra .

(T.
210-11, 297-98).

22. Outfront
    has a company-wide policy to
    provide employees
    “refresher training” in fall protection
    once a year,
    but Mr. Bourne’s practice in the North Haven office has been to conduct that refresher training twice a year. (T. 124, 158, 296; Ex. R-4). The
    semi-annual
    refresher training
    is substantially similar to the initial fall protection training. (T. 124, 158, 296; Ex. R-4).

23. Outfront’s fall protection
    training
    addresses the
    nature and recognition of
    fall
    hazards
    associated with
    working on
    any Outfront
    billboard.

24. Outfront’s fall protection training addresses the
    identification of suitable anchor points and
    the
    PPE necessary to provide fall protection while working on
    any Outfront
    billboard,
    including
    training to
    refrain from
    working
    on a billboard
    that lacks suitable anchorages or alternative means of providing required fall protection.

25. Outfront’s fall protection training addresses
    fall hazards associated with both bulletin
    billboards
    and poster
    billboards. (T. 124-25,
    164,
    168).

26. All
    Outfront’s employees, including
    all
    the
    employees
    whose
    conduct
    on October 5, 2017
    resulted in the Citation being issued,
    have
    received the fall protection training described above.

(T.
124-25,
131, 160-62,
164,
185, 287-89; Ex. R-8).

27. Each of
    the
    four employees
    who the CO observed working on the Waterbury billboard on October 5, 2017
    understood
    the nature of fall hazards associated with working on billboards. Each of those employees
    possessed the knowledge, training,
    and experience
    both (a)
    to
    recognize
    when the construction, configuration,
    and condition of any
    Outfront
    billboard
    required the use of fall protection
    PPE, and
    (b)
    to refrain from working
    at height
    on a billboard
    that lacked suitable anchorages or alternative means of providing required fall protection.

Workplace Hazard Assessment s

General
Hazard
Assessment s

28. In 2007,
    Outfront’s Vice President of Environmental Health and Safety,
    Robert Chesonis,
    who is
    based
    in Fairfield, New Jersey,
    conducted
    a general assessment of the hazards associated with working on
    Outfront’s
    billboards
    nationwide. (T.
    240-45). In conducting his assessment, Mr. Chesonis traveled to multiple markets around the country,
    spoke
    with fall
    protection consultants, observed workers in the field, and interviewed workers and managers. (T. 240-41).

29. As a result of
    that
    2007
    general
    hazard
    assessment, Mr. Chesonis
    updated
    Outfront’s fall protection training
    program, including the
    training manual and
    PowerPoint
    presentation
    used in
    training. (T. 243-44). Mr. Chesonis also
    developed a “prop kit,”
    which contained
    the
    fall protection
    PPE
    that
    Outfront
    provides employees, for
    demonstrative
    use in
    formal training.

(T. 244).

30. Based on the 2007 hazard
    assessment,
    Mr. Chesonis
    reasonably concluded
    that the PPE supplied to its crews for work on billboards
    was “generally appropriate
    for the various applications for the poster [billboards].” (T. 243).

31. In 2016,
    Mr. Chesonis
    performed another
    general assessment of the hazards associated with working on
    Outfront’s
    billboards
    nationwide. (T. 245-47). As a result of that 2016
    effort, Mr. Chesonis
    “slightly updated” Outfront’s fall protection training
    for conformance with OSHA’s new
    safety
    standard pertaining to walking-working surfaces, which
    was
    published as a final rule in
    November

32. (T. 247-48).

33. While conducting
    these
    general hazard
    assessments, Mr. Chesonis observed workers working on bulletin
    billboards
    and poster
    billboards. (T. 242,
    246,
    271-73). Mr. Chesonis
    reasonably determined that
    the hazards associated with
    the
    two
    types of
    billboards
    were similar
    and that fall hazards
    existed
    with
    respect to
    both. (T. 243,
    246,
    271-73).

As part of his assessments, Mr. Chesonis evaluated whether the
fall protection
PPE
that Outfront
provided
to
its
employees
was sufficient,
and
he reasonably
concluded that it
was. (T. 243, 247).

33. In addition to the “formal” assessments
    performed
    in 2007 and 2016, Mr. Chesonis
    monitors
    developments pertaining to
    fall
    hazard protection
    for
    billboards, such as
    regulatory
    changes
    like the OSHA general industry standard pertaining to walking-working surfaces that was promulgated in November 2016. (T.
    247-48).

Site-specific
Hazard
Assessment s

34.
Outfront does not
ordinarily
send
a manager
to conduct a site-specific hazard assessment
of a particular billboard
before a crew begins work on
that
billboard. (T. 219, 263-64). Rather,
Outfront requires
the assigned crew to assess a specific
billboard and determine,
before any worker ascends the billboard,
whether the required work can be performed in conformance with
Outfront policies.

(T.
171,
232, 263-64, 281, 401; Ex. R-17, pp. 4
& 11).

35.
Every
billboard
has unique characteristics, such as the presence or absence of certified anchor points,
that
bear on
what fall protection PPE to use. (T. 171,
217,
401). Billboards that
lack
certified anchor points
may or may not have points that are
suitable
for use as
improvised
anchor points. (T. 217). Employees are required to assess such billboards
and identify any
suitable
improvised anchor points
before ascending
such a
billboard. (T.
151-52,
171-72, 410).

36.
If an employee
determines that
PPE
other than what has been taken to the worksite
is necessary
to provide
required
fall protection, that PPE is provided
before any employee ascends the billboard. (T. 180-81, 217, 317).

37. Employees must
    refrain from
    performing
    assigned work
    when
    the work
    cannot be
    performed
    in compliance with
    Outfront policies. (T. 117-119, 183-84, 217, 227-28; Ex. R-9).

So, in circumstances in which a billboard has no certified or appropriate improvised anchor points, and no other means or methods of fall protection are available to perform the assigned work, employees must not
perform
any
work
at height. (T.
126-27,
151-52,
183-84,
217).

Reasonable Diligence in Discovering
Fall Protection Violation s

Outfront ’s Fall Protection Policies

38. Outfront
    requires employees to utilize fall protection
    at all times while working at heights
    of
    four feet
    or more. Compliance with this requirement
    almost always
    entails
    an employee
    wearing and using
    fall protection
    PPE to “tie off” to an
    appropriate
    anchorage.

(T.
126,
171,
183-84,
213,
264-66, 297-98, 419; Exs. R-4 & R-9). Employees are instructed not to ascend a billboard if
it
has
no suitable anchorages, and
if
no
alternative means
of
fall protection is available. (T. 126-27, 183-84; Exs. R-4,
R-9, C-21 at p. 5).

39. Outfront refers to this
    policy
    with
    the vernacular
    term
    “100% tie-off” policy. (T.
    126, 183-84, 264-66, 297-98). That vernacular
    term
    is a misnomer, because employees are not required to “tie-off” when
    there is available
    some other
    appropriate
    method or means
    of
    fall
    protection
    that does not involve actually “tying off”
    with
    fall protection
    PPE. (T. 213-15,
    264).

40. Outfront’s fall protection training orients employees to so-called “passive”
    fall protection
    systems, such as guardrail systems,
    even though
    very few of Outfront’s billboards
    are constructed with engineered “passive” systems. 2 (T.
    149, 212-213, 264,
    310,
    418-19).

41. Outfront’s
    nominal
    “100% tie-off”
    policy
    is embodied in the
    Policy described in
    ¶¶
    7 & 8,
    supra . The final sentence
    of the block quote
    in ¶
    7
    contemplates that employees are not required to tie off
    where
    all the required work can be accomplished while using an existing
    “passive”
    fall protection
    system.

(T. 149). Nevertheless, the
Policy
does not prohibit an employee
from
taking a “belt and suspenders” approach to fall protection
by
both tying off to appropriate anchorages
while also taking advantage of any “passive” fall protection features engineered into the billboard. ( E.g. , T.
310).

42. All
    Outfront employees who work at height, including the
    employees
    the CO observed
    working on the Waterbury billboard
    on October 5, 2017, review and
    sign
    the Policy
    in which
    the
    nominal
    “100% tie-off”
    policy
    is described. (Ex. R-9). Outfront’s fall protection training
    entails review of the Policy. (T.
    210-11,
    266,
    297-98). At
    Outfront’s
    North Haven office,
    Mr. Bourne
    also
    frequently
    reinforces this training by reminding
    employees of the
    “100% tie-off” rule
    before they
    depart for
    their worksites.

(T. 158-59, 297-98).

43. Mr. Bourne
    orients employees
    at the North Haven office, including the employees that the CO observed on October 5, 2017, to
    “passive”
    fall
    protection
    systems, and communicates that such systems are not prevalent on Outdoor’s billboards. (T. 110-11, 213-14; Ex. C-20, p. 23). The
    vast majority
    of the training relates to
    personal fall
    protection
    systems 3
    that
    by their nature
    entail the
    wear and
    use of fall protection PPE. (Ex. C-21).

44. Any Outfront employee
    who successfully completes
    fall protection training
    understands
    the
    import of Outfront’s fall protection rule and Outfront’s “100% tie-off”
    policy.

45. Outfront had a work rule in place to address fall hazards.

46. Outfront
    adequately
    communicated its work rule to its employees. Outfront’s employees had the knowledge, training, and experience (a) to recognize circumstances to which the work rule applied, and (b) to identify
    the
    means or methods
    required
    to comply with the work rule under those circumstances.

Progressive
Disciplin e for Fall Protection Violations

47. Outfront’s
    fall protection
    Policy
    contains
    a progressive disciplinary
    protocol that
    is
    applicable to violations of the Policy. Under that protocol,
    the sanction for an employee’s first violation is a five-day suspension,
    and the sanction for
    a
    second violation is termination of employment. (T. 54,
    120,
    253, 293, 367-68;
    Ex. R-9).

Comparing
Outfront’s
progressive discipline protocol
to the protocols
of two other major companies in the outdoor advertising industry, one
is
stricter and
the other is
more lenient. (T. 368-73).

48. Outfront consistently
    and uniformly
    applies
    the
    Policy’s
    progressive discipline protocol whenever it
    determines
    that an employee
    has
    violated the policy.

(T. 103-06, 111-12, 127-28, 191-93, 199-200, 207-08, 252-53, 257-62, 304; Exs. R-3, R-4, & R-12).

Outfront effectively enforces
its work rule regarding fall protection.

Random ,
Unannounced
Works ite
Observations

49. Outfront
    managers
    are required to
    conduct unannounced
    worksite observations of
    employees in the field
    for compliance with company safety policies
    at least four times a month. (T.
    187-88). The
    operations manager
    for
    each office
    is
    generally responsible for
    conducting
    the field observations, and at
    least once monthly the general manager
    of
    each office (who is the immediate supervisor of the operations manager)
    is required to accompany
    the
    operations manager
    on
    those
    field observations. (T. 188).

50. Worksites
    are
    randomly
    selected for field observations, and typically more than
    a single
    worksite
    is observed on
    days
    when field
    observations are conducted. (T. 188, 228-30; Ex. R-5).

51. Mr. Bourne, as
    Operations
    Manager
    of
    the
    North Haven
    office, conducts field observations
    at least
    four times a month. (T.
    187-188). Following each field observation, Mr. Bourne
    documents the observation by completing
    a “Field Observation Survey”
    form, which
    identifies
    the location of the
    billboard, the
    identity of the
    employees
    observed, and
    states
    whether the
    employees
    were wearing PPE and
    complying with
    safety procedures. (T. 188-89;
    Ex. R-5).

52. Between
    January 21, 2014
    and November 29, 2017, 4
    Mr. Bourne or other
    staff 5
    in Outfront’s North Haven office
    conducted
    field observations
    of
    more than 230
    worksites
    and
    completed
    a
    Field Observation Survey for each. (Ex. R-5).

53. In conducting field observations
    from 2014 through 2017, Mr. Bourne observed
    one or more
    of the
    four workers
    who the CO had observed
    on October 5, 2017
    on approximately 90
    different
    occasions, including some
    observations at worksites involving
    poster
    type billboards. (T. 192-94; Ex. R-5, Bates pp. 254 & 319).

Every
time the four workers
were observed, they were properly utilizing PPE
for
fall protection. (T. 192-94; Ex. R-5).

54. Whenever
    any
    Outfront employee, whether based in the North Haven office or elsewhere,
    is
    discovered in the course of a field observation to be violating Outfront’s fall protection policy,
    Outfront imposes progressive discipline in accordance with its
    Policy. (T. 190-92, 252-53; Ex. R-5,
    Bates
    p. 178;
    Ex. R-12).

55. Outfront exercised reasonable diligence
    by conducting regular and random field observations of its work crews as a means of
    (a)
    supervising employees,
    (b)
    taking measures to prevent violations from occurring, and
    (c)
    discovering
    violations that do occur.

Events
Preceding
the Issuance of the Citation

Employee
Discipline
for
Violation of
Fall Protection
Policy
in
March 2017

56. On March 31, 2017,
    an official from OSHA’s area office in Hartford
    telephoned Outfront’s North Haven office and spoke with
    Mr. Bourne. The official
    informed Mr. Bourne
    that
    OSHA had received a report
    from
    some third-party
    that Outfront employees had been seen that day working on a certain billboard
    in Hartford
    without fall protection equipment. 6

(T.
103-04,
195-97,
301-03).

57. Outfront
    investigated the
    report
    and
    identified the employees assigned to work on
    the identified
    billboard. Those employees were the same
    four
    employees
    that
    six months later, on October 5, 2017,
    the CO observed
    repairing the Waterbury billboard. (T.
    195-99, 254-56, 302-03). Mr. Bourne had most recently conducted a field observation of these same
    four
    employees 11 days
    earlier, on March 20, 2017, when he had observed them
    properly
    using fall protection
    PPE
    and following safety procedures. (Ex. R-5, Bates p. 24).

58. As a result of that
    internal
    investigation, all four employees
    acknowledged in writing that
    they “did not maintain 100% continuous tie-off while working at height”
    on March 31, and that
    “[t]his action was in direct conflict with [Outfront’s]
    initial/refresher training … regarding fall protection and working at heights.” (Ex. R-3).

59. All four employees
    executed sworn
    affidavits
    that
    on March 31, 2017
    they
    had
    violated Outfront’s “fall protection policy to maintain 100% tie-off at all times or not to climb and work on structures where continuous tie-off could not be achieved.” (Ex. R-4).

60. As a result
    of their
    March 31, 2017
    violations of
    the
    Policy, all four employees were suspended for five days without pay,
    in accordance with
    Outfront’s progressive discipline
    protocol
    that is
    contained in the
    Policy. (T.
    127, 199, 257-58,
    303-04; Exs. R-3 & R-4).

61. Between March 31 and October 5, 2017, all or some of the four employees who
    had been
    disciplined
    for the violation on March 31
    were observed in random,
    unannounced field observations
    of at
    least
    thirteen
    different worksites, and they were complying with Outfront safety policies for each observation. (Ex. R-5, Bates pp. 158, 160, 343-44, 346, 355-56, 358, 361-63, 372-73). The two field observations
    closest in time to
    October 5, 2017, were on September 19, when all four
    employees
    were observed, and on September 27, when two of the
    employees
    were
    observed. (Ex. R-5, Bates pp.
    158 & 160).

The
Crew’s
September
2017
Site Visit

62. On September 20, 2017,
    Mr. Bourne directed the four employees who would later be tasked to repair the Waterbury billboard to “stop by and look at” the
    billboard because it had been reported to have some sections “sliding down.” (T.
    201-02; Ex. R-1).

This poster
billboard was about 40 years old, had no engineered anchor points or other integrated fall protection features,
and was
in
visible
disrepair. (T.
109,
202, 221-22). The purpose of the site
visit
was
for the crew to
assess the
billboard and
determine
“what was needed to fix” it. (T. 203, 209-10). As part of that assessment, each of the employees had been trained to
evaluate
the structure of the billboard
for
the method and means of providing fall protection to complete
needed
work. (T. 135-36,
146-47,
171,
209-10,
281).

63. The
    four
    employees understood that part of
    the
    site
    visit
    would
    entail
    assessing the
    billboard for potential safety hazards and
    determining
    whether
    PPE
    would be required to complete the job in accordance with
    the
    Policy. (T.
    135-36,
    146-47, 171,
    202-04, 209-10,
    232,
    281, 410-12; Ex. R-17, p. 11).

64. Each of
    the four employees
    had sufficient training, knowledge and experience to
    identify what repairs were required on any particular
    billboard and whether making those repairs
    would
    expose a worker to a fall hazard that would
    require the
    worker to use
    certain
    fall protection
    PPE. (T.
    78, 135-36,
    146-47,
    232, 281, 315-16, 410-12; Ex. R-17, p. 11).

65. Each of the
    employees
    knew
    that
    if
    any
    additional
    equipment
    were needed to conduct the repairs to the
    billboard, that equipment
    was available and
    would be provided. (T. 181, 216-17, 230).

66. Following the site
    visit
    on September 20, 2017, the employees
    reported that “the wood stringers in the back”
    of the
    billboard
    were rotted out and needed to be replaced. (T.
    204; Ex. R-1). The employees
    did not
    report
    that
    performing this repair
    presented
    any safety-related obstacles
    that they were not equipped to
    address. (T.
    209).

The
Crew’s Failure to Use Fall Protection PPE
on
October
5,
2017

67. On October 5, 2017,
    around 7 to 8 a.m.,
    the
    same
    four employees
    who had evaluated the Waterbury
    billboard
    about two weeks before
    on September 20
    —
    Messrs. Anderson, Martin, Symmes, and
    Trudel —
    were directed to travel to the billboard to
    make the needed
    repairs they had identified during their site visit on September 20. (T.
    24, 107-08,
    305-06). Each of those employees
    had
    the same job title –
    “Sign Installer.”

(T. 77, 287). Outfront had not designated any of them
to be the lead
person
or
to
have
any
supervisory
role. (T. 108).

68. The
    CO
    was driving past the billboard at about 9:30 a.m. while on his way to conduct another inspection. He saw
    the
    crew
    working on the
    billboard
    and suspected that workers were working at height without required fall protection, so he stopped
    his vehicle
    and approached the crew on foot. (T.
    24).

69. One of the employees
    (Mr. Symmes)
    was
    doing carpentry
    work on the ground, but the other three
    —
    Messrs.
    Anderson, Martin, and
    Trudel
    —
    were
    working
    on the
    billboard
    at heights greater than four feet, and none were
    wearing a harness or otherwise
    using
    any
    fall protection
    equipment. (T.
    25-26, 121-22;
    Exs.
    C-1
    through C-9,
    C-18 &
    C-19).

70. Mr. Trudel
    and Mr. Anderson
    were
    standing on a
    makeshift work platform that the crew had created by placing
    a 2x8 inch
    board
    on top of
    three cross
    supports
    that were part of the billboard’s structure, so
    that the
    2x8
    ran about
    two-thirds
    the length of the billboard. (T. 259-60). This makeshift platform was visibly bowed downward from the weight of the two men. ( Compare
    photos at
    Exs. C-7 & C-8 with
    photo at
    Ex. C-4). While standing
    on this
    makeshift platform,
    Messrs. Trudel and Anderson
    were situated
    in between
    two
    parallel
    horizontal pieces of the billboard’s frame
    that were
    about two feet apart and
    at about pelvis
    height
    on the men. The horizontal piece in front of them
    was
    a
    wood board
    (likely a 2x6
    inch
    board) that ran the length of the billboard and was situated in between
    the upper front and the upper rear
    parallel and
    horizontal angle irons
    that were part of the billboard’s frame
    (T. 206), both of which also ran the length of the billboard. The horizontal piece behind the two workers was the
    described
    upper rear horizontal angle iron. (T.
    34;
    photos at
    Exs. C-1
    through
    C-16; videos at
    C-18
    &
    C-19).

71. Mr.
    Martin
    was standing on a horizontal board that was
    part of the billboard’s structure that was situated
    at about the mid-point of what would be the display area
    of the billboard. Mr. Martin was
    maintaining his balance by grasping
    the horizontal upper front
    angle iron
    (described
    in the preceding paragraph)
    that was
    slightly
    above his head. (Exs.
    C-1,
    C-6 through
    C-9, C-18, C-19).

72. The two horizontal pieces of the billboard’s structure that
    Messrs. Trudel and Anderson
    were standing in between were not part of any engineered fall protection system. Neither was the horizontal board that Mr. Martin was standing on. These pieces were part of the billboard’s frame. (T. 38, 206). All the employees had the training, knowledge, and experience to recognize that these horizontal members of the billboard were part of the billboard’s frame and not part of
    any “passive” fall protection involving platforms and railings. (T.
    225-26, 233, 259-60,
    306-07).

73. The billboard had no engineered fall protection system. (T. 217, 221-23, 233;
    Exs. C-4
    & C-13). All the employees present
    had the knowledge, training, and experience
    to recognize that the billboard did not have any engineered fall protection system.

(T.
109,
314).

74. The CO accurately determined that Mr. Martin had been working at a height of approximately 12 feet above ground level and Messrs. Anderson and Trudel at a height of approximately 15 feet above ground level. (T. 31).

75. Neither
    Mr.
    Trudel,
    Mr.
    Anderson, nor
    Mr.
    Martin was
    wearing a harness or otherwise
    using
    any
    fall protection PPE
    while working at height on the billboard.

(T. 121-22).

With
their
training, knowledge and
experience, each of those
employees
knew
that
he was
violating Outfront’s Fall Protection Policy. (T. 307, 314).

76. Upon approaching the crew on foot,
    the CO first
    spoke
    briefly with Mr. Symmes, who was doing carpentry work while on the ground. When Mr. Trudel noticed the CO speaking to Mr. Symmes,
    Mr. Trudel dismounted
    the billboard and approached
    the CO. (T. 29;
    video at
    Ex. C-19). In response to the CO’s questions,
    Mr. Trudel stated he was not the foreman
    but that he was the most senior worker present. Mr. Trudel
    stated
    further
    that
    none of the four workers
    was “in charge,”
    and
    he identified
    the project manager
    to be
    Mr. Bourne in the North Haven office.

(T. 29, 108; Ex. C-19). The CO
did not speak with
either
Messrs. Martin or Anderson. (T. 31).

77. In response to the CO’s questions,
    Mr.
    Trudel
    said that
    he
    believed he
    was not required to use fall protection
    PPE
    because the
    horizontal members of the billboard that he was standing in between
    were
    sufficient
    as a “passive restraint.” (T.
    34, 109). In stating this to the CO,
    Mr. Trudel was
    engaging in
    prevarication
    in
    an attempt
    to justify and excuse his failure to wear fall protection
    PPE while working at height on the billboard. In actuality, Mr.
    Trudel knew that he should have been using fall protection PPE to comply with both Outfront’s policy and OSHA standards. (T.
    314). Mr. Trudel
    knew
    that
    he, along with
    Messrs.
    Anderson and Martin,
    had been caught in the act of not using that PPE
    when required. (T. 302). He knew that if Outfront discovered he had violated the
    Policy a second time that he would be fired.

(T. 120).

Mr.
Trudel contrived this
explanation
in
an
attempt
to convince the CO that he had not violated fall protection standards,
and to
avoid
being fired for having committed a
second
violation of
the
Policy.

78. The billboard on which the CO observed the employees working had neither certified anchor points nor locations that would serve as suitable improvised anchor points, and the employees knew this. (T.
    109, 137,
    217, 307). The employees should not have commenced work on the billboard under
    the
    Policy, and the employees knew this. (T.
    109, 137,
    151-52,
    217, 317).

79. The CO contacted Mr. Bourne
    and Mr. Chesonis separately
    and
    reported
    details of his inspection
    to each. (T.
    34-35, 205-206).

80. Messrs. Bourne and Chesonis
    then
    investigated the
    crew’s conduct
    at the Waterbury
    billboard
    and concluded
    that
    Messrs.
    Anderson, Martin, and Trudel
    had been working
    more than
    four feet
    above ground level
    without utilizing fall protection
    equipment
    in violation of
    the
    Policy. (T. 207-08, 258-62; Exs. R-3 & R-4).

Because this was
the second
Policy violation of
each of those three employees,
on October 10, 2017,
Outfront terminated the employment of each of them. (T. 111-12, 207-08, 258-62; Ex. R-2).

81.
On November 14, 2017,
OSHA issued
Outfront
the three-item serious Citation.

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon Outfront’s timely filing of a notice of contest. 29 U.S.C. § 659(c). Outfront has employees and is engaged in a business affecting commerce, and thus meets the Act’s definition of “employer.” 29 U.S.C. § 652(5).

All items in the
Citation
allege violations of
safety standards promulgated
pursuant to section
6(b)
of the Act. 29 U.S.C. § 655(b). To establish a violation of
such a standard, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) employees were exposed to or had access to the violative condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Atl. Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994);
Astra Pharm. Prods. , 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part , 681 F.2d 69 (1st Cir. 1982).

The
three alleged violations, which the Secretary has
grouped
and proposed a single penalty for all three, 7
are addressed
below
in the following
sequence: the
training violation (Item 1b);
the hazard assessment violation
(Item 1c);
the fall protection violation
(Item
1a). 8

Item 1b – Section 1910.30(a)(3)(i ) –
Fall hazard training

Citation
Item
1b alleges a violation of 29 C.F.R.
§ 1910.30(a)(3)(i),
which
provides that
“[t]he employer must train each employee in
… : (i) The nature of the fall hazards in the work
area and how to recognize them.” 9

Item 1b
alleges that Outfront
violated this standard
on October 5, 2017
in that
it
“did not ensure that the employees exposed to fall hazards while performing ‘tasks’ from the vertically structured billboards were trained in fall hazards and how to avoid such hazards.”

To establish non-compliance with a training standard, the Secretary must show the cited employer failed to provide the instructions that a reasonably prudent employer would have given in the
same
circumstances. N&N Contractors, Inc. , 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000),
aff’d ,
255 F.3d
122
(4th Cir. 2001) ,
citing
Archer-W .
Contractors, Ltd . , 15 BNA OSHC 1013, 1019-20 (No. 87-1067, 1991)
aff’d , 978 F.2d 744 (D.C. Cir. 1992), and
El Paso Crane & Rigging Co., Inc. , 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993). Where an employer
has provided the type of training at issue, the Secretary
must
“show some deficiency in the training provided.” Id. , quoting
Am. Sterilizer Co. , 18 BNA OSHC 1082, 1086 (No. 91-2494, 1997).

As discussed below, the
Secretary
failed to
prove
that
a reasonably prudent employer would have
provided
any different or additional training
than Outfront provided
in the nature of the fall hazards associated with working on billboards ,
and how to recognize t hose fall hazards .

The
Secretary stipulated
that Outfront provided employees
certain
fall protection training (Stipulation at T. 176)
and does not
claim
that Outfront provided no training
at all
on
the nature of
fall hazards and how to
recognize
them. Rather,
t he Secretary
argues that Outfront’s fall protection training was deficient in the following three particulars : ( 1)
that the
training did not address the
fall hazard s
associated with working on poster
billboards
(Sec’y Br. 8-9) ;
( 2)
that the
“100% tie-off ”
policy was “contradictory and confusing”
(Sec’y Br. 9-12) ; and
( 3)
that the
training on anchorage points was
vague and
confusing. (Sec’y Br. 12-13).

T he Secretary’s
contention
that
Outfront’s
training was inadequate must be considered
within the context of
Outfront’s
training
program as a whole. Accordingly,
Outfront’s
actual
training program is
reviewed
first, followed by consideration of
the
Secretary’s
asserted
deficiencies in that
training.

The Policy
on which Outfront employees are trained states that
“[i]n any situation where an employee is exposed to a potential fall hazard of greater than four (4) feet … fall protection equipment shall be used … . ” (Ex.
R-9). Likewise, the Manual
provided
to
each employee
emphasize s
that fall hazards
are
“one of the most common hazards” in the workplace
when working at height . (Ex. C-20, p. 11). Outfront’s
fall protection rule, nominally
called the
“ 100% tie-off ”
policy ,
served to emphasize
the
presence
of fall hazard s
associated with working at height on billboard s
and that
the use or presence of adequate
fall protection was
an imperative . (Findings of Fact ,
¶ ¶
38 -4 0 ).
Mr. Bourne frequently reminded
the
employees
at the North Haven office
of the
existence of fall hazards
on billboards
and the
imperative of
complying with
the fall protection rule . (T.
158-59 ).
O ne member of the
four- person
crew
that the CO observed working on the Waterbury billboard
corroborated the frequency of Bourne’s exhortations, remarking
that
the
fall protection
policy
was “beaten into our heads.” (T. 298). The existence of a written work rule to address the fall hazard s associated with work on billboards ,
and frequent reinforcement of that work rule from management ,
have been recognized as components of an adequate training program . See
Thomas Indus. Coatings, Inc. , 23 BNA OSHC
208 2 , 2087 (No. 06-1542, 2012) (noting safety handbook and “100-percent tie off” rule as aspects of an adequate fall protection
training program);
N&N Contractors ,
18 BNA OSHC
at
2127 (employer’s “written work rule” and meetings to
“ reinforce company safety policy ”
were evidence of the adequacy of fall protection training under
the
construction
industry
fall protection training
standard
at
29 C.F.R.
§   1926.503(a)(1)) . 10

Outfront
provide s
both initial training in fall protection and
annual
refresher training
(semi-annual refresher training at the North Haven office)
in a group setting .
(Findings of Fact ,
¶ ¶
14 &
22 ).
Each
of the employees
the CO observed on the Waterbury billboard
received initial training
in fall protection a nd
semi-annual
refresher training , with Mr. Trudel having received
this formal
training twelve separate times
during his tenure with Outfront . (Findings of Fact, ¶
2 6 ; T. 140 ).
The
written tests and
PowerPoint
presentation utilized during this training
identified the fall hazard s
inherent in
working at height on billboard s
and
emphasized the
imperative
of
adequate
fall protection. ( Ex s . C-21
& R-13 ).
Mr. Bourne
delivered
the
PowerPoint
presentation
“slide by slide” and
solicited employee
questions. (Finding s
of Fact , ¶
1 7 ).
The e mployees
also
received practical instruction
o n the use of
fall protection
equipment, both
in a classroom setting
and
a field setting
on a n actual
bill board . (Finding s
of Fact , ¶
1 6 (e), (f) ).
These elements of Outfront’s training have been recognized as elements of an adequate training program. See
S.J. Louis Constr. of Tex. , 25 BNA OSHC 1892,
1898-99 (No. 12-1045, 2016) (finding a
PowerPoint
presentation which served as a “discussion guide” and the use of “performance tests” were aspects of an
effective training program);
Thomas Indus. , 23 BNA OSHC
at 2087 (fall protection training
received during employee orientation or
“ a comparable
refresher course” and “‘hands-on’ training”
were
aspects of an adequate fall protection training program);
N&N
Contractors , 18 BNA OSHC at 2127 -28
(training received at the employer’s corporate office and at the work site were evidence of the adequacy
of fall protection training under
the
construction
industry
fall protection training
standard).

Outfront’s
billboard s
have varying configurations respecting the presence of certified or improvised anchorages, and
Outfront’s training instructed employees on the recognition of suitable improvised anchor points. (Findings of Fact, ¶ ¶ 13(b), 17(a)-(d), 19, 20,
35) . Outfront’s training on anchorages included real world examples of “good” (i.e., suitable) and “bad” (i.e., unsuitable) improvised anchor points. (Findings of Fact, ¶¶ 1 7 (c)
&
(d),
20 ) .
See
El Paso Crane & Rigging Co. , 16 BNA OSHC
at
1426 (observing that where appropriate fall protection must be selected
on a “situation-by-situation basis,” and that “a company that tells its employees what fall protective equipment is available and describes its use, or the circumstances in which it must be used, may quite conceivably be doing all that anyone could reasonably do.”). With respect to identifying suitable improvised anchorages, Outfront instructed its employees to employ
a widely known
rule of thumb known as the “truck test” in assessing whether an improvised anchor point will withstand a 5,000-pound load. (Findings of Fact, ¶ 1 9 ).
See
29 C.F.R. § 1910.140(c)(13)(i) (providing that anchorages be “[c]apable of supporting at least 5,000 pounds … for each employee attached”). 11

As described below, the Secretary has not established that a reasonably prudent employer would have provided substantially different
or additional
training under the circumstances than Outfront provided, and thus has not shown that Outfront’s training was inadequate.

(1) Bulletin v. poster
bill boards

First, the Secretary argues Outfront’s training
did not address fall hazards that are peculiar
to poster
bill boards like the
Waterbury
bill board
involved
here . (Sec ’ y Br. 8). This argument is rejected. T he great er
weight of the evidence is that
the hazards associated with working on bulletin
bill boards and poster
bill boards
are
similar, if not
substantially
identical. (Finding s
of Fact, ¶
5 ) .
The fact that bulletin
bill board s
are generally
more recently constructed, are more likely to have certified anchorages, and are
higher off the ground than poster
billboards
does not
alter the fact that fall hazards exist with either type of
bill board involving
employees
work ing
a t
heights
of
four feet and higher.

(Findings of Fact, ¶
5 ) . Outfront’s training was reasonably geared to address fall hazards present on both types of billboards, as
is
corroborated by
evidence that employees at the North Haven office routinely worked on poster billboards and
demonstrated proficiency in
co mplying with
Outfront’s fall protection policy
in doing so . (T.
243,
271-73 , 297, 367 ;
Ex. R-5,
Bates
pp. 254, 319 ).

In support of
the
argument that the training was inadequate with respect to
fall hazards unique to
poster
bill boards, t he
Secretary
relies on
Mr. Trudel ’s testimony
that he was not trained in fall protection for poster
bill boards .

(T. 109-10) .

Mr. Trudel’s testimony
in this regard
was
conclusory and
unconvincing . Mr. Trudel did not
describe how the training he received was somehow not apt
to poster
bill boards
generally, or the Waterbury poster
bill board
specifically .

(T. 110) .
To the contrary,
Mr. Trudel had been observed at least twice before this incident working on poster
billboards
while
properly
using
PPE for fall protection. (T. 188, 193-94; Ex. R-5,
Bates
pp. 254 & 319). The
preponderant
evidence
establishes that
Outfront’s employees
at the North
Haven location , including
Mr. Trudel ,
had been trained in recognizing
and addressing
the fall hazard s
associated with working on a poster
bill board ,
Mr. Trudel’s
unconvincing ,
conclusory
testimony to the contrary
notwithstanding .

The Secretary also
argues that the testimony of the expert witness for Outfront
that “some equipment”
is appropriate for
use
on bulletin
billboards
but not poster
billboards
demonstrates
that Outfront’s training was deficient
with respect to working at heights on
poster
billboards .

(T. 401-402).
That testimony does not diminish
the expert’s
stated
and reasonably supported
conclusion
that Outfront’s fall protection training
address ed
appropriate
PPE to be used under
varying
circumstances ,
including the type of billboard involved . (T. 375, 380-81 , 386-87 ; Ex. R-17, p .
6 ).

See El Paso Crane
& Rigging Co. , 16 BNA OSHC at 1426 (“[a]n employer's instructions are not necessarily deficient just because they allow the employees discretion as to how to proceed, particularly where the working circumstances are such that no one form of protection is capable of being used every time”) .

Moreover, t he cited standard
simply
requires training on
the
“ nature of the fall hazard s
in the work area
and how to recognize them . ”
29 C.F.R. §
1910.30(a)(3)(i).
Even though
some
fall protection PPE may be apt
only
for
bulletin
bill board s , this
does not establish that Outfront’s training was deficient with respect to
recogniz ing
the nature of fall hazard s
common to both bulletin and poster
bill boards .

(Findings of Fact, ¶
5 ).
The Secretary simply did not adduce evidence that specifically identified how the training Outfront provided was
in apt
or deficient with respect to work on
poster billboards .

The Secretary has not established that a reasonably prudent employer would have
provided different o r
additional training
to what Outfront provided
relating to
poster
bill boards .

(2) “ 100% tie-off ”
policy

The Secretary next argues Outfront’s “100% tie-off” policy
was “contradictory and confusing”
because Outfront acknowledged that tying off was not required in circumstances
where a billboard was constructed with an engineered “passive” fall protection system such as a guardrail system .

(Sec ’y
Br. 9-12). The Secretary
notes
that Outfront trained employees that fall protection PPE was not required where adequate “passive” systems were in place, so that the
“100% tie-off” policy was in actuality a “ 100% fall protection” policy . (Sec’y Reply Br. 2).

While this characterization of Outfront’s
nominal
“100% tie-off” policy is accurate, t he evidence is insufficient to support the conclusion that employees were confused or misunderstood the import of
Outfront’s fall protection rule . See
Danis Shook Joint Venture XXV , 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001)
(a work rule is
sufficiently precise where it
“ requires or proscribes certain conduct and
…
is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood .”)
(quoting
J.K. Butler Builders, Inc. , 5 BNA OSHC 1075, 1076 (No. 12345, 1977)
aff’d , 319 F.3d 805 (6th
Cir. 2003)). The term
“100% tie-off”
is a
vernacular
expression to
epitomize
a
policy
that
required
the use of some form of appropriate fall protection whenever working at height on a billboard. (Findings of Fact, ¶ 38
& 39).

In Outfront’s work environment,
the use of appropriate
fall protection almost always entailed the use of fall protection PPE
because
very few
of
Outfront
billboards
were
constructed with engineered
“passive”
fall protection
systems
that obviated the need
for workers
to
wear and
use
(by
“tying-off”) fall protection PPE. (Findings of Fact, ¶ 40). The Secretary’s
parsing and
deconstruction of phrases and sentences in
Outfront’s
Policy
(Sec’y Br. 10-11; Ex. R-9), though showing that the
Policy
probably
could have been
stated with greater precision and clarity, does not establish that the language employed was
insufficiently
precise or
clear to communicate
to
Outfront’s employees
the
Policy’s
main idea
—
that the
use of appropriate fall protection was an imperative at all times
when working at height.

Further, the evidence
established
that Outfront’s training imparted
the knowledge and understanding
that enabled employees
to
recognize
whether any given billboard was configured with
an
engineered
“passive” fall protection system. (Findings of Fact, ¶¶ 40
& 43). It is
apparent
that the Waterbury
billboard, an aging poster
billboard
that was
in visible disrepair (T. 202, 221-22), had no such
engineered
fall protection
system
(T.
109,
217),
and that any employee
who had completed
Outfront’s training would have recognized
this. (Findings of Fact, ¶ 43 & 73).

Mr. Trudel recognized “that there were no safety cables designed or on this board to utilize” on the Waterbury billboard. (T. 109).

Mr. Trudel
was not credible in testifying that
he
regarded
the
two horizontal members of the billboard structure
that
he was standing in between (the
angle iron
behind him
and
a
2x6 inch
board
in front of him, both at about pelvis height), in combination with the
makeshift
work
platform
on which he was
standing
(that the crew had created by placing an unsecured
2x8 inch
board across three supports),
constituted an adequate
passive
rail
system
that negated the need to tie-off with fall protection PPE.

(T. 109-11, 226, 260;
Exs. C-1,
C-4,
C-8, C-12 through C-16).

Instruction
provided
to
Mr. Trudel
and the other employees
regarding
guardrail
systems
included
instruction that
such systems
are engineered into the billboard. (T. 215). Mr. Trudel understood
this. (T.
109-110).

Given Mr. Trudel’s training and his approximate 10 years of experience working on billboards with both Outfront and with two other outdoor advertising companies (T. 100), his stated belief that
the
makeshift
2x8
wood platform
he stood on, the horizontal angle iron
behind him, and the horizontal 2x6
in front of him, provided fall protection that was an appropriate
alternative
means
of
fall protection on a billboard that was about 40 years old and falling apart, strains credulity and is simply beyond belief. ( See
T. 396-97).

While the
CO apparently accepted Trudel’s explanation at face value (T. 93-94), the undersigned
as the finder of fact
is obliged to
evaluate
his
testimony in light of other evidence in the record to which
the testimony
can be compared and
to
examine
the testimony
for internal consistency and intuitive plausibility. See Anderson v. Bessemer City, N.C. , 470 U.S. 564, 575 (1985) (“[F]actors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’s story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).

Contrary to the Secretary’s contention, the evidence is insufficient to establish that the nominal “100% tie-off” policy lacked sufficient clarity or generated confusion among Outfront workers regarding the imperative to
be protected by some form of adequate fall protection,
whether “active”
or
“passive,”
at all times
while working at height. The evidence is further insufficient to establish that an employee receiving Outfront’s training would not be
competent to
recognize
what forms
of fall protection were
available on a given
billboard. The
Secretary has
thus
failed to identify any deficiency in Outfront’s training with regard to its “100% tie-off” policy.

Cf.
Paul Betty , 9 BNA OSHC 1379, 1383 (No. 76-4271, 1981) (finding that
work rule had not been adequately communicated
where
the senior
employee
at the jobsite
did not
recognize
that a situation called for the
work rule to be implemented).

(3) Anchor points

Finally, the Secretary argues that Outfront’s training regarding anchor points is
vague and
confusing
in that (1)
“Outfront
fails to explain how ”
the
topics
of
“ ‘ good ’
anchorage points, and approved load of anchorage points, work together ,” and (2)
Outfront’s training on the
“truck test”
(for
assess ing
whether a potential improvised anchorage is suitable )
was flawed because one employee’s testimony suggested that
he
did not
accurately
comprehend the
test.
(Sec’y Br. 12-13).

Outfront’s training materials are sufficiently explanatory to defeat the
Secretary’s first criticism. The training materials
and the training provided employees
make sufficiently clear that anchor
points
must be suitable ,
and
that suitable (i.e., “good”) anchor points include
engineered anchorages and
suitable improvised anchorages.
(Findings of Fact, ¶ ¶ 13(b), 17(a)-(d), 19, 20 ).

In support of
his
second criticism , the Secretary
cites
to testimony from
an Outfront employee
in which
t he
employee
misstated the
minimum rating for an improvised anchor point,
which is
5,000 pounds .

See
29 C.F.R. § 1910.140(c)(13)(i). It is apparent from the cited
testimony
that
t he
employee
confused
the
approximate
weight of a full-size pickup truck
with
its load capacity, which is less than its weight .

(T.
290,
311). This apparent confusion notwithstanding , the totality of
the employee’s
testimony
established that
he understood the “truck test” and how
to apply
it
in identifying appropriate
improvised anchor point s . (T.
168, 289-90,
383). The witness’s
confusion
on the nomenclature used to describe a truck’s load capacity
does not
establish that it
is
inappropriate for a reasonably prudent employer to instruct
employees
on using
the “truck test” in identifying appropriate
improvised anchor points.
Cf.
Paul Betty , 9 BNA OSHC
at
1383 (employee was inadequately trained where he had only a “general awareness of the cited standards’ requirements”) .

The Secretary failed to
prove
that the fall protection training Outfront provided was
deficient. Accordingly, Item 1b of the
Citation
must be
vacated.

Item 1c – Section 1910.132(d)(1) – Hazard assessment

Item 1c alleges a violation of
section
1910.132(d)(1),
which
provides
in relevant part
that
“[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].”

Item 1b
alleges that Outfront
violated
this
standard
with respect to the Waterbury billboard
in that
Outfront
“did not ensure that a Workplace Hazard
Assessment in ‘tasks and sites’ specifics was conducted to determine necessary and appropriate types of [PPE] for the employees who were assigned to perform ‘tasks’ from vertically structured billboards.”

In 2007
and
again in
2016,
Outfront
conducted
formal
general
companywide hazard assessments.

(Findings of Fact,
¶¶
28-32). These general assessments are insufficient by themselves to meet the requirements of section 1910.132(d)(1), because they lacked
an assessment of the
particularities of
any specific billboard, including
the Waterbury billboard.

See
Wal-Mart Distrib. Ctr. #6016 , 25 BNA OSHC 1396, 1398-1400 (No. 08-1292, 2015) (affirming violation of section
1910.132(d)(1)
upon concluding that
a hazard assessment conducted at one facility was
insufficient
to meet requirement to conduct a hazard assessment for a different facility, in part
because
the employer
“never
verified the equivalency of the conditions between the two facilities”),
aff’d
in relevant part ,
819 F.3d 200 (5th Cir. 2016).

The
preponderant
evidence established that Outfront
conducted
a site-specific hazard assessment of the Waterbury billboard on September 20, 2017
in conjunction with the
site
inspection that the four employees conducted before
the start of work on
that billboard on
October 5, 2017. (Findings of Fact,
¶¶ 62-66). Implicit in
Mr.
Bourne’s instruction that the
employees
“check board” (Ex. R-1, p. 2)
and “stop by and look at”
the
billboard (T. 201-02)
was
a directive
to conduct a hazard assessment
for possible safety hazards, including fall hazards, and determine what safety equipment was necessary
to complete the work. (Findings of Fact, ¶ 62). All four employees understood this
to be an implied task
as a result of their knowledge, training,
and experience. (Findings of Fact, ¶ 63). Moreover, all four employees
were competent persons capable of assessing the
billboard for hazards and determining what PPE would be necessary to address those hazards
in the course of making needed repairs to the
billboard.

(Findings of Fact,
¶
64; T. 203, 209-10; Ex. R-17, p. 11).

S ee
section 1910.140(b) (defining the term “competent person” to mean “a person who is capable of identifying existing and predictable hazards in any personal fall protection system or any component of it, as well as their application and uses with related equipment ….”). Mr. Trudel confirmed this
to be his
implicit understanding when he acknowledged that
he knew that among the reasons for inspecting the
billboard before beginning work on it was to make sure that the crew could work safely, notwithstanding that the crew was not explicitly instructed to do so. (T.
135-36).

The Secretary argues that a provision
in the Policy
precluded delegating the task of conducting a site-specific hazard assessment to
non-managerial
employees. (Sec’y Br. 14-15). The provision to which the Secretary points
provides as follows: “Management, with employee participation, will make a hazard assessment and determine the [PPE] required for the task assigned.” (Ex. R-9).

The cited standard does not prohibit an employer
from
delegating the task of conducting a hazard assessment to non-managerial employees. See N&N Contractors , 18 BNA OSHC
at
2127
(employer may
allow
properly trained employees
discretion
in how to proceed with work and
determining the PPE that is required in view of the work process selected);
El Paso Crane & Rigging Co. , 16 BNA OSHC
at
1426 (where necessary PPE will vary on a “situation-by-situation basis … a company that tells its employees what fall protective equipment is available and describes its use, or the circumstances in which it must be used, may quite conceivably be doing all that anyone could reasonably do.”).
Even if the delegation of this task to the work crew is regarded as being contrary to the recital in
the Policy
quoted above,
that variance
does not equate
to a violation of the cited standard. See Gen. Motors Corp., GM Parts Div. , 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) (consolidated) (“An employer’s safety recommendations do not
establish that such precautions were necessary in order to comply with a standard.”),
aff’d , 764 F.2d 32 (1st Cir. 1985). The employees’
site visit
met the requirement of section
1910.132(d)(1)
to conduct a hazard assessment. See
Wal-Mart Distrib. Ctr. #6016 , 25 BNA OSHC at 1399;
El Paso Crane & Rigging Co. , 16 BNA OSHC at 1426;
Infra-Red Bldg. & Power Svc., Inc. ,
No. 17-1511,
2019 WL 5893218 at *13-14 (O.S.H.R.C.A.L.J,
Oct. 7,
2019) (finding that training employees to assess a job site and determine what type of PPE should be worn was “consistent with” 29 C.F.R. §
1910.132(d)(1));
see also
Nonmandatory Compliance Guidelines for Hazard Assessment and Personal Protective Equipment Selection,
App’x B to Subpart I of
29 C.F.R. pt.
1910 (indicating that
a “walk-through” survey
of a worksite
conducted by a “safety officer”
is a component of
an
adequate hazard assessment).

The Secretary
further
argues that
because Outfront’s training was deficient,
the employees
could not be regarded to be “competent persons”
to
assess what fall protection PPE would be required to work on the Waterbury board, so that any hazard assessment the
employees’
conducted
was inadequate. However, as
found in
discussing Item 1b
of the Citation, the Secretary
failed to establish
that
Outfront’s training
was deficient.

The employees, as competent persons in the area of identifying and recognizing fall hazards, were capable of conducting a hazard assessment of the Waterbury
billboard
and determining what
fall protection measures
were
necessary to safely complete the work. See
El Paso Crane & Rigging Co. , 16 BNA OSHC at 1426;
c f.
Baker Tank Co. , 17
BNA OSHC
1177, 1179
(No. 90-1786-S,
1995) (recognizing
that
properly
instructed employees can
carry out
an employer’s duties under the Act).

Finally,
the Secretary
points to uncontroverted evidence that
Outfront did not prepare a written certification
that
documented
the
site-specific hazard assessment that the employees
conducted. (Sec’y Br. 16). Such a written certification
is required by
section
1910.132(d)(2). 12 However,
the citation item alleges that Outfront failed to conduct a hazard assessment, not that Outfront failed to properly document that it had done
so. See Jake’s Fireworks, Inc. , 26 BNA OSHC 1738, 1750 n.10 (No. 15-0260, 2017) (ALJ) (finding that,
although lack of a written certification was “strong evidence” that no hazard assessment occurred,
it was not sufficient to prove a violation of
sec.
1910.132(d)(1))
aff’d , 893 F.3d 1248 (10th
Cir. 2018). As
previously
described, Outfront conducted a hazard assessment that met the requirements of the cited standard, section 1910.132(d)(1).

The
Secretary has not proven that
Outfront’s site-specific hazard assessment of the Waterbury billboard did not meet the requirements of section 1910.132(d)(1).

Accordingly,
Item 1c
of the Citation is vacated.

Item 1a
– Section 1910.28(b)(1)(i) –
Protection from fall hazards

Item 1a alleges a violation of
section
1910.28(b)(1)(i),
which
provides:

(b)
Protection from fall hazards-- (1)
Unprotected sides and edges. (i) Except as provided elsewhere in this section, the employer must ensure that each employee on a walking-working surface with an unprotected side or edge that is 4 feet (1.2 m) or more above a lower level is protected from falling by one or more of the following:

(A)
Guardrail systems;

(B)
Safety net systems; or

(C) Personal fall protection systems, such as personal fall arrest, travel restraint, or positioning systems.

The
Citation alleges that Outfront
violated the standard because it
“did not ensure that the employees who were performing ‘tasks’ from the vertically structured billboards were protected
from the hazard of falling more than 4 feet to the ground by the use of appropriate personal fall arrest systems/devices or utilizing other means [or] methods.”

Outfront
contests only the “knowledge” element of the Secretary’s burden of proof, contending
that the evidence is insufficient to establish that
Outfront knew, or with the exercise of reasonable diligence could have known, of the violative
conduct. The
Secretary
does not contend that Outfront had
actual
knowledge of the employees’ violative conduct, arguing
only that
he proved
constructive knowledge. 13 (Sec’y Br.
17-19). As described below,
the Secretary has failed to
carry his burden to
prove constructive knowledge.

To prove constructive knowledge, the Secretary must show that Outfront’s
lack of actual knowledge of
a violative condition was due to
a
failure to exercise
reasonable diligence. See Ragnar Benson, Inc. , 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). “In assessing reasonable diligence, the Commission considers several factors, including an employer’s obligations to implement adequate work rules and training programs, adequately supervise employees, anticipate hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr. , 25 BNA OSHC
at
1894. The regular enforcement of disciplinary procedures also bears on
whether an
employer
exercised
reasonable diligence. See
Thomas Indus. Coatings , 23 BNA OSHC
at
2088-89. Whether an employer has exercised reasonable diligence is a question of fact that will “vary with the facts of each case.” Martin v. OSHRC , 947 F.2d 1483, 1485 (11th Cir. 1991).

The Secretary argues Outfront
failed to exercise reasonable diligence
because: (1) it lacked adequate work rules and training (Sec’y Br. 19);
(2) it failed to adequately supervise employees ( Id.
at
18-19); and
(3) it failed to adequately assess the Waterbury
billboard work site for potential hazards ( Id.
at
18). Each of these arguments is addressed in turn.

(1) Adequate
training and
work rules

In arguing that
Outfront’s employees lacked adequate training
and work rules, the Secretary relies on
his arguments
made in connection with
the alleged training violation (Item 1b)
that
Outfront’s fall protection training
was inadequate.

As
the discussion above
rejecting those arguments
concluded,
the Secretary failed to prove that a reasonably prudent employer would have provided fall protection training
that was substantially different
than the training Outfront provided, including training
respecting the nature of fall hazards on poster billboards and how to recognize them.

The Secretary similarly failed to establish that Outfront’s
work rule, nominally identified as the
“100% tie-off”
policy,
lacked sufficient clarity or generated confusion among Outfront workers regarding the imperative to be protected by some form of adequate fall protection at all times while working at height.

(2) Adequate supervision
of employees

The Secretary argues Outfront failed to adequately supervise its employees. In support of this argument, the
Secretary
faults Outfront for having no managerial or supervisory employee
in charge of the crew, and
propounds
the
following
rhetorical question:
“If an employer can avoid responsibility by placing no one in charge, then why would the employer ever do so?” (Sec’y Reply. Br. 4).

Longstanding precedent holds that the
presence of supervisory personnel at a worksite is
not a
sine qua non
of
adequate supervision.

See
N. Y.
State Elec. & Gas Corp. v. Sec ’y , 88 F.3d 98, 109 (2d Cir. 1996)
(“Insisting that each employee be under continual supervisor surveillance is a patently unworkable burden on employers.”);
Stahl Roofing, Inc. ,
19 BNA OSHC 2179, 2182
(No. 02-1024, 2003) (employer
whose
practice was not to assign supervisory personnel
to be present fulltime
at
widespread worksite
locations determined not
to
have had constructive knowledge of employee’s violative conduct). Rather,
in assessing the adequacy of employee supervision,
the Commission looks to the whole of an employer’s monitoring,
compliance, and disciplinary
efforts, viewed in light of
any
past violative conduct of employees. See Stahl Roofing Inc. , 19 BNA OSHC
at 2182-83;
Hackensack Steel Corp. , 20 BNA OSHC 1387 (No. 97-0755, 2003);
S w.
Bell Tel. Co. , 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000);
Michael Barr , No. 19-0258, 2019 WL 7176889, at *9-10 (O.S.H.R.C.A.L.J.,
Nov. 18, 2019).

The Secretary has not established that Outfront failed to exercise reasonable diligence in the supervision and monitoring of its work crews. Outfront
supervisors
conduct
random
field observations of employees
working on various billboards
at
least
four times a month. (Findings
of Fact,
¶¶
49
& 50). Employees who fail to comply
with Outfront’s
Fall Protection Policy
receive significant
discipline for both
a
first and
a
second violation,
with the sanction for the
second violation
being
termination of
employment. (Findings of Fact,
¶
47). These
are
attributes
of an effective monitoring
and enforcement
program. Cf.
Thomas Indus. Coatings, Inc. , 23 BNA OSHC
at
2087-88
(disciplinary program where the entire crew could be suspended without pay if one member violated fall protection policies);
Stahl Roofin g, Inc. ,
19 BNA OSHC at 2182
(progressive disciplinary program ranging from oral reprimand to termination);
N.Y. State Elec. & Gas Corp ., 19 BNA OSHC
at
1229
(enforcement program calling for random site inspections).

Outfront supervisors had
observed one or more of the
three
employees
who were violating the fall protection policy on
October 5, 2017
at
about
90
different worksites between
January 2014
and October 2017,
and
at
each
of those
worksites
the employees
had
been following
Outfront’s
fall protection work rules. (Findings of Fact, ¶
53). In
the two
instances
in which
the employees were
determined
to have violated
Outfront’s Fall Protection Policy, they
were disciplined
according
to Outfront’s progressive discipline policy. (Findings of Fact,
¶¶ 60, 80).

The
Secretary argues the
absence
of a foreman or other supervisor
on the four-person crew
is particularly “jarring given … Outfront’s understanding of these employees’ safety history.” (Sec’y Br. 18). The record is silent with respect to whether
Outfront increased
monitoring of these employees following their violation
of the fall protection rule in March 2017. Cf.
Hackensack Steel Corp. ,
20 BNA OSHC at 1389 (noting
that multiple
previous OSHA violations should have led the foreman to do “more to discover safety violations than he did.”). Nevertheless, the record does show that all or some of the four employees on that crew were subject to site observations at least 13 times from April through September 2017, and that each time they
were following
safety
rules. (Findings
of Fact,
¶
61).

Given the overall positive record of employee compliance with the fall protection rule, and the incentives in place for employees to follow that policy in order to avoid the severe discipline mandated by Outfront’s progressive discipline policy,
the Secretary has not established that Outfront
failed
to exercise reasonable diligence
in
its
supervision
and
monitoring of its employees working in the field. See Stahl Roofing ,
Inc. , 19 BNA OSHC at 2182 (“Where the evidence fails to show that the employer should have perceived a need for additional monitoring or that such an effort would have led to the discovery of instances of employee misconduct, increased supervisory efforts to monitor employee compliance are not required.”)
(quoting
Dover Elevator Co. , 16 BNA OSHC 1281, 1287 (No. 91-862, 1993)). The evidence
also
demonstrated that
Outfront disciplined
its
employees in every instance where a violation of its Fall Protection Policy was found to have occurred. (Findings of Fact,
¶¶
48,
60,
80). Indeed, the four employees here had been disciplined in connection with
a Policy violation
just
six
months prior to this one,
and
they knew their employment would be terminated if they violated the policy a second time. (T. 120, 293;
Exs. R-3 & R-4). These
circumstances
weigh against a
finding that Outfront
failed to
exercise
reasonable diligence in monitoring its worksites, despite the
employees’ first
known
violation
six months
earlier. See
Thomas Indus. Coatings, Inc. , 19 BNA OSHC at 2088-89 (uniformity of discipline weighs in favor of a finding of reasonable diligence);
F.A. Gray, Inc. , 12 BNA OSHC 1311, 1314 (No. 83-517, 1985) (finding no
lack of reasonable diligence, in part,
where employees were “experienced”
and knew they would be fired for breaking the employer’s safety rule)
(view of Commissioner Cleary).

The Secretary
compares the instant matter to
Public Utils. Mgmt. v. Sec’y of Labor , 417 F.
App’x 58 (2d Cir. 2011)
(unpublished),
and argues
that the
court
there
found lack of adequate supervision even where a foreman had been designated to look for safety violations. 14

The Secretary argues that
in
contrast, “Outfront’s ‘supervision’ is … far worse; it is absent.” (Sec’y Br. 19). This argument is rejected.

The
court in
Public Utils. Mgmt . noted, “[d]epending on the circumstances, close supervision
may or may not
be reasonably necessary to attain compliance
with safety rules.” 417 Fed.App’x at 63, quoting
N.Y. State Elec. & Gas Corp. ,
88 F.3d
at
109 (emphasis added). The
Second Circuit
in
Public Utils. Mgmt.
thus
did
not rule that the
existence of a designated
foreman
or other supervisor
at
the
worksite is dispositive of adequate supervision.

The Secretary did not demonstrate a lack of reasonable diligence in Outfront’s monitoring of its worksites or enforcement of its work rules.

(3) Hazard assessment
of the workplace

Reiterating
his arguments made
in support of the alleged hazard assessment violation (Item 1c), the Secretary argues Outfront “took no action to inspect the [Waterbury
billboard] for potential hazards.” (Sec’y Br. 18). However, as previously discussed
in vacating Item
1c, Outfront demonstrated that the four employees understood that part of their site visit
on September
20, 2017,
would involve assessing the
billboard for potential hazards and
determining
what
PPE would be required to complete the job in accordance with Outfront’s Fall Protection Policy,
and
that each was competent to make such an assessment. (Findings of Fact,
¶¶
62-64).

The employees performed
a hazard assessment that met the requirements of section 1910.132(d)(1).

Based on the foregoing, the Secretary
did not
demonstrate that Outfront
failed to exercise reasonable diligence
to discover the violations
and therefore
did not demonstrate that
Outfront
had constructive knowledge of its employees’
violative conduct. 15 Accordingly, Item 1a of the Citation is vacated.

ORDER

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). If any finding of fact is in actuality a conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 1a of the Citation, alleging a
   serious
   violation of 29 C.F.R. § 1910.28(b)(1)(i), having not been proven, is VACATED.

2. Item 1b of the Citation, alleging a serious violation of 29 C.F.R. § 1910. 30(a)(3)(i), having not been proven, is VACATED.

3. Item 1c of the Citation, alleging a serious violation of 29 C.F.R. § 1910.132(d)(1), having not been proven, is VACATED.

__ /s/ _______

WILLIAM S. COLEMAN

Administrative Law Judge

Dated:
May 4, 2020

"

1
See
29 C.F.R. § 1910.140(b) (defining “carabiner”);
see also
Ex. C-20, p. 42.

2
The term “guardrail system” is defined in section
1910.21(b)
and the requirements for such systems are set forth in section 1910.29(b). S ee also
Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494,
82649
(Nov. 18, 2016) (to be codified at 29 C.F.R. pt. 1910), (describing guardrails as “passive fall protection devices”).

The term
“passive”
fall
protection connotes measures that
“require[]
no additional fall protection equipment to be donned by the worker.” (T.
392-393). In contrast,
“active”
fall protection “requires the climber to do something to attach and utilize the [fall protection] system.” (T. 394).

3
The term “personal fall protection system” is defined in section
1910.2 1 (b).

4
Th ese are the inclusive dates of
the Field Observation Surveys
presented in evidence . (Ex. R-5,
Bates
p p . 196
& 376 ). M any of the survey
form s
contain a header
for “CBS Outdoor , ”
which is the predecessor company to Outfront.

( E.g. ,
Ex.
R-5,
Bates
p. 170 ;
T. 113, 294, 332).

5
While most of t he Field Observation Surveys
submitted by Outfront were completed by Mr. Bourne, some
were completed by an individual with initials A.P., whose job title the record does not disclose, and who perhaps was responsible for conducting required field observations when Mr. Bourne was not available. ( E.g. , Ex. R-5, Bates p. 324).

6
There is no evidence whether OSHA’s receipt of this third-party report and subsequent phone call to Outfront resulted in any other official action on the report.

7
Cf.
Hackensack Steel Corp. , 20 BNA OSHC 1387, 1394 (No. 97-0755, 2003) ( noting that the
Commission
has the discretion to
assess a single penalty for distinct but potentially overlapping violations) .

8
The safety standards cited for Items 1a and 1b are part of the standard pertaining to “walking-working surfaces” that was promulgated as a final rule in November 2016. Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494 (Nov. 18, 2016) (to be codified
at
29 C.F.R. pt. 1910). Section 1910.28(b)(1)(i), cited in item 1a, was effective on January 17, 2017. Section 1910.30, “Training Requirements,” cited in item 1b, was effective May 17, 2017. 81 Fed. Reg. at 82890;
29 C.F.R. §
1910.30(a)(1).

9
The term “fall hazard” is defined to be “ any condition on a walking-working surface that exposes an employee to a risk of harm from a fall on the same level or to a
lower level .”
29 C.F.R. § 1910.21(b). The term “walking-working surface” is defined to be “ any
horizontal or vertical surface on or
through which an employee walks,
works, or gains access to a work area or
workplace location. ” Id.

The term
“lower level” is defined
in pertinent part
as
follows: “ Lower level
means
a surface or area to which an
employee
could fall.

Such surfaces or areas include, but are not limited to, ground levels … .”
Id.

10
The cited training standard is largely derived from the fall protection training standard contained in the construction industry standards at section 1926.503(a)(1). See
Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82,494, 82,638 (Nov .
18, 2016) (to be codified in 29 C.F.R. Part 1910)
( “OSHA drew most of the training requirements [of
section
1910.30] from the construction fall protection standard.” ) . Commission precedent
applying
that
corresponding
construction
industry fall protection training
standard
constitutes at least persuasive authority with respect to the derivative standard in part 1910 that was cited here .

11
Subparagraph (ii) of 29 C.F.R. § 1910.140(c)(13) provides an alternative method for assuring an anchorage has adequate load bearing capacity and entails the involvement of a “qualified person” as defined in § 1910.140(b), such as a professional engineer. 29 C.F.R. § 1910.140.

12
S ection
1910.132(d)(2) provide s: “ The
employer
shall verify that the required
workplace
hazard assessment has been performed through a written
certification
that identifies the
workplace
evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a
certification
of hazard assessment.”

13
The Secretary did not attempt to prove, and does not argue, that any of the four crew members working on the Waterbury billboard had sufficient authority to be deemed a supervisor for purposes of imputing their actual knowledge of the violative conduct to Outfront. See e.g. ,
Pa.
Power & Light Co. v. OSHRC ,
737 F.2d
350,
352, 355 (3d Cir. 1984)
(finding that
the crew leader of a three-person electrical utility crew at a remote worksite
was a
supervisor
whose actual knowledge of a violative condition could be imputed to the
employer ) . Attempting to establish imputed actual knowledge would have been inconsistent with the Secretary’s
theory of the case that the employees did not know that they were violating Outfront’s fall protection work rule because their fall protection training had been inadequate. (Sec’y Br. 7-13).

C f. Paul Betty , 9 BNA OSHC
at
1383 (finding that work rule had not been adequately communicated where the senior employee at the jobsite did not recognize that a situation called for the work rule to be implemented).

14
It is likely that the only court of appeals to which the Secretary could seek review of a final order of the Commission in this matter is the Second Circuit, because the alleged violations arose in Connecticut, and there is evidence that Outfront’s principal office is in New York. (T. 280).
See
29 U.S.C. § 660 (b);
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000)
( “Where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has
…
applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.” ).
It should be noted that the
Second Circuit
has determined not to accord its decision in
Public Util ities
M anagement
precedent ial effect within the circuit because it was issued as a “summary order . ”
See
2d. Cir. R. 32.1.1(a)
(“ Rulings by summary order do not have precedential effect.”) ;
Public Utils. Mgmt. v. Sec’y of Labor , Docket No. 10-0123-ag (2d. Cir. 2011) (summary order).

15
In view of the Secretary’s failure to prove the alleged fall protection violation, Outfront’s affirmative defense that the violation was the result of unforeseeable
employee misconduct need not be
addressed. Cf.
Burford’s Tree, Inc. , 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) (“The Commission has considered these same factors in evaluating both an employer’s constructive knowledge and the merits of an employer’s unpreventable conduct affirmative defense.”),
aff’d , 413 F.
App’x 222 (11th Cir. 2011) (unpublished).