Magnum Contracting, Inc.

Plain-English summary

Two Magnum Contracting foremen used a rough-terrain forklift to raise an employee on a work platform for welding. They did not secure the platform with the provided chain and moved the occupied forklift horizontally, causing the platform to slide off the forks and fall about 12 feet. The judge held that the platform was a scaffold platform covered by the cited rule and imputed both supervisors’ actual knowledge to the company. The employee-misconduct defense failed because Magnum did not show that a clear and consistently communicated work rule prevented the conduct. The serious citation was affirmed with a $9,054 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(c)(2)(v)
• Outcome: Serious unsecured forklift-supported scaffold violation affirmed; penalty of $9,054.
• Key point: A forklift-supported work platform must be attached to the forks, and the forklift cannot move horizontally while the platform is occupied.

Full text (OSHRC public release)

Franz, Daniel
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EN-US
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Some personal
identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION

SECRETARY
OF LABOR,

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��������������������������������������
Complainant,

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���������������������������������������������
v. ���

MAGNUM
CONTRACTING INC.,

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���������������������������������������
Respondent.

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�����

���� OSHRC
DOCKET NO. �� 18-0311 �

Appearances:

Timothy Williams, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado

������������������������������� For
Complainant

��������������� David Enget ., Magnum Contracting Inc., Fargo, North Dakota

������������������������������� For
Respondent

Before: � Judge Patrick B.
Augustine � United States Administrative Law Judge

DECISION AND ORDER

I.             
Procedural History

This proceeding is before the Occupational Safety and Health Review
Commission (�the Commission�) pursuant to Section 10(c) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651 et seq. (�the Act�). The Occupational Safety and Health
Administration (�OSHA�) conducted an inspection of a Magnum Contracting, Inc.
(�Respondent�) worksite in Fargo, North Dakota on January 24, 2018. (Stip. No.
17). As a result of the inspection, OSHA issued a Citation and Notification of
Penalty (�Citation�) to Respondent alleging one serious violation of the Act. Respondent
timely contested the Citation. (Notice of Context �NOC�). The Court held pre-trial
telephone conferences on April 25, 2018 and July 31, 2018. (Order, April 25,
2018); (Order, Aug. 1, 2018). Complainant requested summary judgment via a
motion which contained Joint Stipulations of material and relevant facts. While
Respondent agreed to the Joint Stipulations of material and relevant facts, it argued
the Joint Stipulations and its responses entitled it to judgment in its favor. ( Compl�t Motion for Summary Judgment); ( Resp�t
Response to Motion for Summary Judgment). The Court gave both parties the
opportunity to reply to the opposing party�s arguments on this issue of summary
judgment. (Order, Aug. 1, 2018).

Although the motion and the parties� responses are framed within the summary
judgment context, the motion and responses are mischaracterized. Both parties
agreed that Commission Rule 61 applied to this case. (Order, April 25, 2018).
Commission Rule 61 states, in part, �[A] case may be fully stipulated by the
parties and submitted to the Commission or Judge for a decision at any time.�
29 C.F.R. � 2200.61 (2018). The parties fully stipulated to all material and relevant
facts. As such, the Court will treat the request as one for a decision based on
stipulated record under Commission Rule 61. [1] �

II.          
Jurisdiction

The parties stipulated the Act applies and the Commission has
jurisdiction over this proceeding pursuant to � 10(c) of the Act, 29 U.S.C. �
659(c). (Stip. No. 1); (Order, April 25, 2018). Respondent further stipulated, at all times relevant to this matter, it was an employer engaged
in a business affecting commerce within the meaning of � 3(5) of the Act, 29
U.S.C. � 652(5). (Stip. No. 3); See Slingluff v. OSHRC , 425 F.3d 861 (10th Cir.
2005).

III.       
Stipulations

The parties
submitted Joint Stipulations to the Court, which are set forth below:

The Administrative
Law Judge has subject matter and personal jurisdiction over the dispute in
this case.

The
Secretary employs Casey Bedingfield as a Compliance Safety and Health
Officer for the Occupational Safety and Health Administration (�OSHA�),
assigned to OSHA�s Bismarck, North Dakota, Area Office. He served in that
position at all pertinent times.

Magnum
is, and was at all pertinent times, a North Dakota corporation engaged in
construction activities specializing in steel erection. Magnum is an
employer and its activities affect interstate commerce.

On
January 17, 2018, Magnum was engaged in construction work, erecting a
steel building at 3270 Veterans Boulevard, Fargo, North Dakota, 58104 as
part of new commercial office space called Eagle Ridge Plaza.

[redacted]
and Austin Brown were employed by Magnum as supervisors on the project.
Both had responsibility for performing specific construction tasks as well
as managing the work of other employees.

Toward
the end of the work shift, [redacted] and Brown decided to try to weld one
additional area on the building before work ceased for the day. Magnum�s
two personnel lifts were in use. [redacted] and Brown had been using a
forklift for a couple of days to lift both materials and personnel. They
decided to utilize the forklift to raise [redacted] up to the second floor
of the building so that [redacted] could perform welding.

[redacted]
and Brown attached a Haugen work platform to the forks of the JLG G9-43A
telehandler they had been using. The platform has a screened floor and
removable sides, which were properly attached at the time. It is a
temporary structure which can be taken apart and moved from job site to
job site. This platform is rarely used, which has been only once or twice
a year. The use is very limited due to the fact it requires two employees,
rather than one employee on a boom lift. The telehandler is known as a
rough terrain forklift; it has a boom with forks attached and large knobby
tires for use on uneven ground. Attached to these stipulations are pages
from Haugen�s website regarding its platforms, and accurate photos of the
platform and forklift involved in the accident.

[redacted]
and Brown attached the platform by placing the forks inside two pieces of
channel iron attached under the platform designed for that purpose. The
platform had been manufactured with pins designed to secure the platform
to the forks but had been modified to accept a variety of fork lengths and
eliminate the pins. Instead, Magnum always provided a chain with the
platform so that the platform could be chained to the forklift�s mast. But
[redacted] and Brown did not use it. They did not secure the platform to
the forklift in any other manner either. The platform was supported only by
the forks.

[redacted]
then climbed onto the platform with welding equipment. Brown raised the
platform approximately twelve feet (12�) into the air and drove the
forklift toward the building.

While
the forklift was in motion, the platform slid off the forks and crashed to
the ground below. [redacted] fell out of the platform and onto the ground.
He suffered injuries including three broken ribs and a partially collapsed
lung.

Magnum
does not have a work rule prohibiting driving forklifts while employees are
in work platforms or requiring the platforms to be secured to the
forklifts. [redacted]�s signature appears on a February 20, 2015 sign-in
sheet for a toolbox talk entitled �Elevating Personnel with Forklifts.�
Items in the written material which [redacted] signed include �The
platform must be securely attached to the forks or mast� and �The platform
must not travel from point to point with the work platform elevated at a
height greater than 4 feet while workers are on the platform.� There is no
evidence that Brown had ever received any such training.

Both [redacted]
and Brown completed a national Safety Council forklift operator�s course,
but it did not address the issue of forklifts transporting employees in
work platforms which are not secured to the forklifts. [redacted] and
Brown both completed an OSHA approved 10-hour course on construction
topics, but the topic is not addressed there either.

The
operations and safety manual for the JLG G9-43A telehandler, as well as a
sticker inside the cab, state that that forklift should not be driven
while personnel are on a work platform. The operations and safety manual
for the telehandler was available for review for all operators and was
stored in the telehandler.

Magnum�s
Safety and Risk Manager frequently visits worksites to provide safety
training, distribute safety gear, check equipment and observe workers to
ensure they are working safely. He had visited the Eagle Ridge site twelve
times prior to the accident. The platform had been delivered to the site
just prior to the accident and was not in use through the Safety and Risk Manager�s
visits.

During
2016 and 2017 Magnum had disciplined four employees for infractions of
safety rules, by issuing three written disciplinary actions and one verbal
reprimand. Magnum issued verbal reprimands to [redacted] and Brown for the
actions leading up to the accident.

Moving
a forklift horizontally while supporting an unattached occupied work
platform creates a hazard of falling. If an accident occurs, there is a
substantial probability that death or serious physical harm could result,
as happened to [redacted].

After
receiving notice of the accident, OSHA assigned Mr. Bedingfield to conduct
an inspection, which he did on January 24, 2018 (Inspection No. 1290271).

On
February 8, 2018, OSHA timely issued the citation that is at issue in this
case, which alleges a violation of 29 C.F.R. � 1926.451(c)(2)(v). On
February 23, 2017 [sic] Magnum timely contested the citation.

The
proposed penalty is gravity-based and assessed properly pursuant to OSHA�s
Field Operations manual and is appropriate for the violation within the
meaning of � 17(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. � 651, et eq., (the �Act�). The gravity-based penalty was
originally $12,934.00. The severity was considered high given the serious
injuries that can occur from falling at heights and the injuries which [redacted]
suffered. The probability was considered greater given the uneven icy
terrain, the fact that the employees were rushing, and the serious
injuries received. Magnum received a 30% reduction for its size. No good
faith reduction was given since Magnum received OSHA citations in 2014 and
2016. The proposed penalty is $9,054.00.

IV.       
Factual Background

Respondent is a steel erection company based out of North Dakota. (Stip.
No. 3). For the Eagle Ridge Plaza project, Respondent was responsible for
erecting the steel frame of an office building. (Stip. No. 4).

Austin Brown is a foreman for Respondent and served as leadman for
the Eagle Ridge Plaza project from December 10, 2017 through January 6th, 2018.
(Austin Brown�s Written Statements of Fact � 1-2) [hereinafter Brown Aff .]. [redacted] is also a foreman for Magnum Contracting
Inc. and was assigned to the Eagle Ridge Plaza project on January 8, 2018. ([redacted]�s
Written Statements of Fact � 1) [hereinafter [redacted] Aff .].
Brown and [redacted] were both in supervisory roles and oversaw the activities
of other employees on the project. (Brown Aff . �
2-3); ([redacted] Aff . � 2); (Stip. No. 5).

On January 17, 2018, [redacted] and Brown decided to use a
telehandler and platform to perform last-minute welding work before the end of
the work day. (Stip. No. 6). [redacted] and Brown attached a Haugen work
platform to a JLG G9-43A telehandler by sliding the forks into the appropriate
pieces of channel iron under the platform. (Stip. No. 7 and 8). Respondent
provided a chain with the work platform to secure the platform to the
telehandler. (Stip. No. 8); (Tim Warren�s Written Statements of Fact � 2)
[hereinafter Warren Aff .]. Brown forgot to apply the
chain and [redacted] failed to check whether the chain was in place. (Brown Aff . � 6); ([redacted] Aff . � 5).
The platform was not secured in any other manner. (Stip. No. 8).

While [redacted] was on the platform, Brown raised it to the
height of the second floor�approximately twelve feet�and moved forward toward
the building. (Stip. No. 9 and 10). The horizontal movement caused the platform
to slide off the forks and fall to the ground along with [redacted]. (Stip. No.
10). [redacted] suffered three broken ribs and a partially collapsed lung. Id .

Complainant responded to the injury and conducted an inspection of
the Eagle Ridge Plaza site. (Stip. No. 17). Complainant alleged a serious
violation of 29 C.F.R. � 1926.451(c)(2)(v) for using a forklift to support an
unsecured platform and moving a forklift horizontally while it was occupied. Id .

V.          
Controlling Case Law

To
establish a prima facie violation of
Section 5(a)(2) of the Act, Complainant must prove that: ( 1) the standard applies; (2) the terms of the standard
were violated; (3) employees were exposed 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)

� ���������� Complainant has the burden of
establishing each element by a preponderance of the evidence. See Hartford Roofing Co. , 17 BNA OSHC
1361 (No. 92-3855, 1995). �Preponderance of the evidence� has been defined as:

The greater weight of the evidence, not necessarily
established by the greater number of witnesses testifying to a fact but by
evidence that has the most convincing force; superior evidentiary weight that,
though not sufficient to free the mind wholly from all reasonable doubt, is
still sufficient to incline a fair and impartial mind to one side of the issue
rather than the other.

����������� Black�s
Law Dictionary, �Preponderance of the Evidence� (10th ed. 2014) �����������

VI.             
� Discussion

Following the accident, Complainant inspected the Eagle Ridge
Plaza worksite and alleged
a serious violation of the Act in Citation 1, Item 1
as follows:

29 CFR
1926.451(c)(2)(v): Fork-lifts were used to support scaffold platforms while the
entire platform was not attached to the fork and the fork-lift was moved
horizontally while the platform was occupied:

(a)   
On or
about January 17, 2018 an employee suffered a fall of approximately twelve feet
when the Haugen work platform he was to perform welding activities from slid
off the forks of a JLG G9-43A telehandler at 3270 Veterans Boulevard in Fargo,
North Dakota.

The cited standard states �[f] ork -lifts
shall not be used to support scaffold platforms unless the entire platform is
attached to the fork and the fork-lift is not moved horizontally while the
platform is occupied.� 29 C.F.R. � 1926.451(c)(2)(v) (2018).

A.    
The standard applies to the cited condition.

The parties stipulated the JLG G9-43A telehandler is a �rough
terrain forklift�. (Stip. No. 7). The telehandler had a boom with forks
attached. Id . Generally, OSHA and the
Commission consider telehandlers using fork attachments to be forklifts. Salco Construction, Inc. , 21 BNA OSHC 1662
(No. 05-1145, 2006) (A.L.J.) (classifying a telehandler as a forklift regulated
under 29 C.F.R. � 1926.451 rather than an aerial lift regulated under 29 C.F.R.
� 1926.453 when a fork attachment was used). Both parties consistently referred
to the telehandler as a forklift, and it is therefore subject to the
requirements of 29 C.F.R. � 1926.451.

To determine whether a surface is a �scaffold platform,� the
characteristics of the surface must be compared to the regulatory definition of
�scaffold� and �platform.� Armstrong
Steel Erectors, Inc. , 17 BNA OSHC 1385 (No. 92-262, 1995). The regulatory
definition of scaffold is �any temporary elevated platform (supported or
suspended) and its supporting structure (including points of anchorage), used
for supporting employees or materials or both.� 29 C.F.R. � 1926.450(b). The
definition of platform is �a work surface elevated above lower levels.
Platforms can be constructed using individual wood planks, fabricated planks,
fabricated decks, and fabricated platforms.� Id . The parties stipulated the Haugen work platform was a
�temporary surface� that was supported by a forklift. (Stip. No. 7). The Haugen
work platform was described as a �screened floor with removable sides� and was
elevated to the second story. (Stip. No. 7 and 9). The platform was �above lower
levels� and is descriptively consistent with a fabricated deck or platform. The
Haugen work platform meets the plain language definition [2]
of scaffold platform.

The classification of the Haugen work platform as a scaffold
platform is supported by Commission case law. The court in Salco Construction, Inc. characterized a platform similar
to the Haugen work platform as a scaffold platform when supported by a
telehandler. 21 BNA OSHC 1662. Where the Commission considered whether
painters� picks were a scaffold platform, it focused on the �elevated� and
�temporary� parts of the regulatory definition. Armstrong Steel Erectors, Inc. , 17 BNA OSHC 1385. The Commission
found that painters� picks were a scaffold platform because they were work
surfaces above the ground that were moved around the job site. Id . Similarly, the work platform
supported by a telehandler in this case is an elevated work surface that could
be moved around the job site. Applying the Commission�s reasoning in Armstrong Steel Erectors, Inc. , the
Haugen work platform meets the regulatory definition of a scaffold platform. �

The JLG G9-43A telehandler is a forklift that lifted a scaffold
platform. � Accordingly, 29 C.F.R. �
1926.451(c)(2)(v) applies to the cited condition.

B.     
The terms of the standard were
violated.

A forklift may only be used to support a scaffold platform if it
is secured and the forklift is not moved horizontally. Here, the platform was
not secured properly while employees moved the scaffold horizontally. The
platform was not secured in any way and was solely supported by the fork
attachment. (Stip. No. 8). Respondent did not use the provided chain to secure
the platform. Id . Brown moved the
telehandler horizontally when he drove towards the building. (Stip. No. 9). The
platform slid off the forklift because it was unsecured while the forklift was
moved in a horizontal direction. As such, the Court finds Respondent violated
the terms of 29 C.F.R. � 1926.451(c)(2)(v).

C.    
Employees were exposed
to the hazard covered by the standard.

�The Secretary may prove employee exposure to a hazard by showing
that, during the course of their assigned working duties, their personal
comfort activities on the job, or their normal ingress-egress to and from their
assigned workplaces, employees have been in a zone of danger or that it is
reasonably predictable that they will be in a zone of danger.� RGM Construction, Co. , 17 BNA OSHC 1229
(No. 91-2107, 1995). Actual exposure to a hazard demonstrates that an employee
was in the zone of danger and proves employee exposure. See Gilles & Cotting , Inc. , 3 BNA OSHC 2002, 2003 (No. 504,
1976). �

In this case, employees were actually exposed
to the hazard covered by the standard, which addresses fall hazards associated
with work performed on scaffolding. The Commission has found that when an
employee falls and is injured, �actual exposure to the fall hazard�is
unquestioned.� Phoenix Roofing, Inc. ,
17 BNA OSHC 1076 (No. 90-2148, 1995). Here, [redacted] fell from a scaffold
platform and was injured because the platform was moved horizontally and was
not secured in violation of 29 C.F.R. � 1926.451(c)(2)(v). Because [redacted]
was actually exposed to the fall hazard covered by the
standard, the Court finds Complainant proved this element of its prima facie case.

D.    
The employer had actual knowledge of
the violation

To prove knowledge, the Secretary can show a supervisor had either
actual or constructive knowledge of the violation and such knowledge is
generally imputed to the employer. Revoli Const. Co .,
19 � BNA OSHC
1682 (No. 00-0315, 2001). �� Actual
knowledge is established when a supervisor directly sees a subordinate�s
misconduct. See, e.g., Secretary of Labor
v. Kansas Power & Light Co. , 5 BNA OSHC 1202 (No. 11015, 1977) (holding
that because the supervisor directly saw the violative conduct without stating
any objection, �his knowledge and approval of the work methods employed will be
imputed to the respondent�). Actual knowledge can also be established when a
supervisor participates in misconduct themselves . See Dover Elevator Co. , 16 BNA OSHC 1281 (No. 91-862, 1993)
(holding that the misconduct of a supervisor was imputed to the employer); Dana Container, Inc. , 25 BNA OSHC 1776
(No. 09-1184, 2015) (following Dover
Elevator and imputing employee knowledge of their own misconduct to the
employer). Knowledge may be imputed to the employer through its supervisory
employee. Am. Eng�g & Dev. Corp. ,
23 BNA OSHC 2093 (No. 10-0359, 2012) (quoting Access Equip. Sys. , 21 BNA OSHC 1400 (No. 03-1351, 2006)).

It is well-settled an employee who has been delegated authority
over other employees, even if only temporarily, is a supervisor for the
purposes of imputing knowledge to an employer. Access Equipment Systems. Inc. , 18 BNA OSHC 1718, 1726 (No.
95-1449, 1999) (employee who was �in charge of� or �the lead person for� one or
two employees who erected scaffolds �can be considered a supervisor). Both
Brown and [redacted] were Foremen with supervisory roles on the Eagle Ridge
Plaza project. (Stip. No. 5). They were both aware they did not secure the
platform to the telehandler and Brown knew he was moving the forklift
horizontally towards the building. (Stip. No. 8-10). When Brown and [redacted]
violated 29 C.F.R. � 1926.451(c)(2)(v) they had actual knowledge of their own actions
and the violation. Under Commission precedent, that knowledge is imputed to
Respondent. Dover Elevator Co. , 16
BNA OSHC 1281 (finding that a supervisor who connected an extension cord to an
operable but unprotected circuit was aware that he violated a safety standard
and knowledge was imputed to the employer); Dana
Container, Inc. , 25 BNA OSHC 1776 (No. 09-1184, 2015) (finding that a
supervisor who entered a trailer tank without performing required atmospheric testing
had knowledge of his own misconduct which was imputed to the employer).

The Court finds that ( 1) the standard applies; (2) the terms of the
standard were violated; (3) employees were exposed to the hazard covered by the
standard; and (4) the employer had actual knowledge of the violation. Complainant
established Respondent�s prima facie violation of Section 5(a)(2) of the Act, and the
Court AFFIRMS Citation 1, Item 1.

E.     
The violation was serious.

A violation is �serious� if there was a substantial probability that
death or serious physical harm could have resulted from the violative condition.
29 U.S.C. � 666(k). Complainant need not show that there was a substantial
probability that an accident would occur; he need only show if an accident
occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240 (9th Cir. 1984).
If the possible injury addressed by a regulation is death or serious physical
harm, a violation of the regulation is serious. Mosser Construction , 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp. , 15 BNA OSHC 2072 (No.
88-0523, 1993). �

The cited standard addresses the hazards associated with falling
from a platform that is elevated above lower levels. Both parties stipulated that
a fall resulting from a violation of the cited standard could potentially cause
death or serious physical harm. (Stip. No. 16). In this case an injury actually occurred , and [redacted] suffered a punctured lung
and multiple broken ribs from falling. (Stip. No. 10). See e.g. , Usery v. Marquette Cement Mfg. Co. , 568 F.2d
902, 910 (2d Cir. 1977) (holding that injuries to employees constitute at least
prima facie evidence that the hazard was likely to cause death or serious
injury). The Citation was properly classified as serious.

F.     
The Court rejects the affirmative
defense of unpreventable employee misconduct.

To establish the affirmative defense of �unpreventable employee misconduct�, Respondent must
show that: (1) it has established work rules designed to prevent the violation,
(2) it has adequately communicated those rules to its employees, (3) it has
taken steps to discover violations, and (4) it has effectively enforced the
rules when violations have been discovered. Jensesn Construction Co. , 7 BNA OSHC 1477 (No. 76-1538, 1979). Respondent
bears the burden of proof to establish the defense. Id .

When the alleged misconduct is that of a
supervisor, the proof of �unpreventable
employee misconduct� is more rigorous and more difficult to establish since it
is the supervisor�s duty to protect the safety of
employees under his supervision. Archer-Western
Contractors Ltd. , 15 BNA OSHC 1013 (No. 87-1067, 1991). Involvement by a
supervisor in a violation is �strong evidence that the employer�s safety
program was lax.� Daniel Constr. Co. ,
10 BNA OSHC 1549 (No. 16265, 1982).

An effective work rule must be designed to prevent the violation
or �be clear enough to eliminate employee exposure to the hazard covered by the
standard.� Beta Construction Co. , 16
BNA OSHC 1435 (No. 91-102, 1993). The Commission has specifically defined a
work rule as �an employer directive that requires or proscribes certain
conduct, and that is communicated to employees in such a manner that its
mandatory nature is made explicit and its scope clearly understood.� J. K. Butler Builders, Inc. , 5 BNA OSHC 1075
(No. 12354, 1977). Work rules are not required to be written; the only
requirement is that they are clearly communicated to employees. Aquatek Systems, Inc. , 21 BNA OSHC 1400 (No.
03-1351, 2006). Clear communication depends on adequate training and
instructions designed to prevent the violation. J. K. Butler Builders, Inc. , 5 BNA OSHC 1075.

Respondent stipulated it did not have a work rule that required
securing a platform on a forklift or prohibited moving a forklift horizontally
while supporting a platform with an employee on it. (Stip. No. 11). However,
Respondent later provided, in its Response opposing the entry of summary
judgment, written statements by [redacted] and Brown, which state that they
were both familiar with relevant safety rules in Respondent�s Safety Manual.
(Brown Aff . � 4); ([redacted] Aff .
� 3). Brown asserted the Safety Manual was on site and available to employees.
(Brown Aff . � 4). The provided Safety Manual states:

The entire platform must be attached to
the fork, and the forklift is not to be moved horizontally while the platform
is occupied. The forks must be placed in the scaffold sleeves and the platform
secured to the mast. (Ex. 1).

There is also a section of the Safety Manual titled Elevating
Personnel, which requires an employee to �[s] ecurely
attach the platform to the lifting carriage or forks.� (Ex. 1.) Complainant
points to a requirement in the Safety Manual to �[a] lert
elevated personnel before moving the platform,� as proof that the safety rules
violate the standard and therefore cannot be a work rule. ( Compl�t Reply
to Resp�t Response to Motion for Summary Judgment). However, this requirement does not specify horizontal or
vertical movement, and Complainant�s assumption that it refers to horizontal
movement is unsupported. Vertical movement is a normal and expected part of
elevating employees and it stands to reason that safety standards about
�movement� would refer to vertical movement. Notwithstanding the stipulation that
no work rule existed, there is evidence Respondent had written safety rules
designed to prevent the violation of 29 C.F.R. � 1926.451(c)(2)(v). [3]

����������� Although there may be a work rule,
it is only considered an effective work rule if it is clearly communicated to
employees. Jensesn Construction Co. , 7 BNA OSHC 1477.
Respondent originally stipulated that there was no work rule. (Stip. No. 11). Respondent
later presented a �recently discovered� Safety Manual that contained a safety
rule prohibiting [redacted] and Brown�s actions. ( Resp�t
Response to Motion for Summary Judgment). The Safety Manual was �discovered� almost
eight months after the accident and seven months after filing the NOC. Id . [4]
The manner and timing in which the safety rules were discussed and produced
gives the impression the rules were a recently remembered written formality
rather than a clearly communicated and practiced work rule. Respondent�s seeming
unfamiliarity with its own alleged work rule creates a reasonable inference
that the work rule was not effective or clearly communicated. Ultimate Distribution Systems, Inc. , 10
BNA OSHC 1568 (No. 79-1269, 1982) (stating that the Court may draw reasonable
inferences based on circumstantial evidence).

Furthermore, Respondent bears the burden of proof the work rule
was clearly communicated. Jensen
Construction Co. , 7 BNA OSHC 1477 (No. 76-1538, 1979). Where the Commission
has found that this element is satisfied, the employer provided evidence beyond
the mere existence of the rules. United
Contractors Midwest, Inc. , 26 BNA OSHC 1049 (No. 10-2096, 2016) (finding
effective work rule communication based on evidence that a work rule was
communicated during orientation for all employees, regular trainings, annual
supervisory trainings, and directly to the offending employee the day before
the inspection); Westar Energy , 20
BNA OSHC 1736 (No. 03-0752, 2004) (finding effective work rule communication
based on evidence that a Safety Manual was discussed with every employee upon
hiring and during other trainings). Here, Respondent offers no evidence the
rules contained in the Safety Manual were communicated to employees. On the
contrary, the relevant sections of the Safety Manual seem to have been
forgotten at the time Respondent stipulated to their non-existence.

����������� Respondent attempted to provide
evidence that training on the subject was provided. Both parties stipulated
that [redacted] signed
into a toolbox talk entitled �Elevating Personnel with Forklifts� on February
20, 2015. (Stip. No. 11). The toolbox talk covered
requirements to securely attach a platform to a fork and to �not travel from
point to point with the work platform elevated at a height greater than 4 feet
while workers are on the platform.� Id .
Although both parties stipulated Brown had not received a similar training, Respondent
provides written statements by Brown and Warren that state otherwise. (Brown Aff . � 5); (Warren Aff . � 4). Brown signed into a Safety Toolbox Topic
discussion on �Personnel Work Platform Safety�, which states a platform must be
�securely attached to the lifting carriage or forks� and that forklifts �must
never be driven with occupants elevated in the platform.� (Ex. 3). Brown also asserts
he was trained to use the chain with the Haugen Personnel Platform, but no
supporting evidence is provided. (Brown Aff . � 5). [5]

Although there is evidence that suggests Respondent�s employees
have been exposed to relevant safety topics, the evidence does not demonstrate effective communication of a work rule.
The training materials are inconsistent with each other and the Safety Manual
on whether horizontal movement is prohibited when a platform is occupied at
all, occupied and elevated, or occupied and specifically �elevated at a height
greater than 4 feet.� (Stip. No. 11). Effective communication of a work rule is
undermined by a lack of consensus on what the rule is. PSP Monotech Industries , 22 BNA OSHC 1303
(No. 06-1201, 2008) (holding that where a work rule was communicated in an
inconsistent and confusing manner, the work rule was not adequately
communicated to employees). Additionally, Brown�s training in the area seems to
have been forgotten at the time stipulations were made. Although Respondent
offered the sign-in sheet as evidence of the training, the fact the training
was initially overlooked calls into question the effectiveness of that training
in communicating the rules.

����������� Although Respondent presents some
evidence to support a claim that a work rule existed and was communicated, the Court
finds Respondent did not communicate that rule effectively. An effectively
communicated work rule is supposed to be explicit, mandatory, and clear enough
that it eliminates employee exposure to a hazard. J. K. Butler Builders, Inc. , 5 BNA OSHC 1075; Beta Construction Co. , 16 BNA OSHC 1435. The standard of evidence
to demonstrate an effectively communicated work rule is higher in cases of
supervisor misconduct. Archer-Western
Contractors Ltd. , 15 BNA OSHC 1013. Here, both employees involved in the
violation were supervisors. The Safety Manual and toolbox talks demonstrate
inconsistencies in the safety rules and policies. The assertion the work rule
was adequately communicated was undermined by Respondent�s stipulations that no
work rule existed and that certain alleged trainings did not occur. The trainings
offered by Respondent are not as frequent or consistent as trainings seen in United Contractors Midwest, Inc. and Westar Energy where the safety rule was
covered in orientation, annual supervisory trainings, and regularly scheduled
trainings for all employees. 26 BNA OSHC 1049; 20 BNA OSHC 1736. The material
presented to the Court does not demonstrate a clear and explicit work rule
designed to prevent the violation of 29 C.F.R. � 1926.451(c)(2)(v). As such,
the Court rejects Respondent�s claim of unpreventable employee misconduct. [6]

VII.    
Penalty

In calculating appropriate penalties for affirmed violations, Section
17(j) of the Act requires the Commission give due consideration to four criteria:
(1) the size of the employer�s business, (2) the gravity of the violation, (3)
the good faith of the employer, and (4) the employer�s prior history of
violations. Gravity is the primary consideration and is determined by the
number of employees exposed, the duration of the exposure, the precautions
taken against injury, and the likelihood of an actual injury. J.A. Jones
Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well
established that the Commission and its judges conduct de novo penalty determinations and have full discretion to assess
penalties based on the facts of each case and the applicable statutory
criteria. Valdak Corp ., 17 BNA OSHC 1135 (No. 93-0239,
1995); Allied Structural Steel , 2 BNA
OSHC 1457 (No. 1681, 1975).

Complainant determined the gravity of the violation to be high based on
the higher severity and greater probability of injury. (Stip. No. 19). Injuries
resulting from a fall hazard above twelve feet are serious which justifies the
higher severity determination. Id . The
greater probability determination is justified because employees were rushing
and operating a forklift on uneven and icy terrain. Id . Complainant issued an initial penalty determination of $12,934 based
on the gravity and then reduced the penalty to $9,054 by applying a 30% size
reduction in line with OSHA�s Field Operation Manual. Respondent received
previous OSHA citations in 2014 and 2016. Id .
As such, reductions for good faith and history were not applied. Id . Respondent stipulated to all factors
relevant to penalty determination and did not offer any arguments contesting
the amount of the proposed penalty. (Stip. No. 19); ( See Resp�t Response to Motion for Summary
Judgment). Complainant�s determination and justification for each of the penalty
factors is appropriate. Based on the totality of the circumstances introduced
in the record for this violation, the Court adopts the proposed penalty of
$9,054.

ORDER

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.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
that:

1. Citation 1, Item 1 is AFFIRMED as a
   SERIOUS citation and a penalty of $9,054 is ASSESSED.

Date: �� November
21, 2018 ��������������������������� /s/
Patrick B. Augustine

Denver, CO ���������������������������������������������������� Patrick
B. Augustine

����������������������������������������������������������������������� JUDGE

• OSHRC

1. Furthermore,
   applying the standards for summary judgment is inappropriate for a stipulated
   record. The judge�s function on a motion for summary judgment is to determine
   whether there are genuine, material, disputed issues for trial; it is not to
   weigh the evidence . Anderson v. Liberty Lobby,
   Inc. , 477 U.S. 242, 249 (2005). H ere all the relevant and
   material facts were stipulated and are undisputed.

[2] When
determining the meaning of a standard, the Commission first looks to its text
and structure. Superior Masonry Builders,
Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003). �If the meaning of the
[regulatory] language is �sufficiently clear,� the inquiry ends there.� Beverly Healthcare-Hillview, 21 BNA OSHC
1684, 1685 (No. 04-1091, 2006) (consolidated) (citing Unarco Commercial Prods ., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993)), aff�d in relevant part , 541 F.3d 193 (3d
Cir. 2008).

[3] � The Court gives Respondent the benefit of the
doubt the work rule set forth in the Safety Manual was in existence at the time
of the inspection. � Even though the Court
has concluded a very late produced and recently discovered work rule was in
existence at the time of the inspection which contradicts the Joint Stipulation
it agreed to on this point, Respondent�s affirmative defense fails as it has
not carried its burden on the second element of the defense as set forth in the
narrative of the Decision. �� �

[4]
Respondent offered no reason for the late discovery and submission of the work
rules. � These proceedings were conducted
under the adopted Rules for Simplified Proceedings . See Subpart M of 29 C.F.R. Part 2200 (29 C.F.R. �� 2200.200 -
2200.211). Where Respondent raises an affirmative defense, the Judge, under
Commission Rule 206(b) shall order the employer to disclose to the Secretary
such documents relevant to the affirmative defense. � In this case, the Judge, pursuant to an Order
dated April 25, 2018 directed Respondent to produce to the Secretary all
documentation in its possession and control to support its alleged affirmative
defense of employee misconduct within twenty (20) days of the Order. � Respondent did not comply with this Order since
the first time such evidence was produced was in Respondent�s Response to the
Motion for Summary Judgment dated August 6, 2018. The Secretary did not lodge
an objection to the late submission of such evidence and has not been
prejudiced by such late submission and consideration in that it was provided an
opportunity to reply to such late submission of documents. See Court�s Order dated August 1, 2018. � The Secretary did address these documents and
Respondent�s arguments as to the affirmative defense in a Reply brief dated
August 17, 2018. ��� ��

[5] .
Additional trainings are discussed in the stipulated facts. Both parties agree
that relevant safety standards were not covered in the trainings and they are
therefore not considered when examining whether a work rule was effectively
communicated.

[6] It
is not necessary to analyze the further requirements of the affirmative defense
since Respondent has failed to carry its burden on this element. ���