Miller Insulation Co., Inc.

Plain-English summary

A Miller Insulation employee fell from an unprotected mezzanine edge onto the floor below and later died. OSHA cited the company under a general-industry fall standard and, in the alternative, a construction fall-protection standard. The judge found that the general-industry standard did not apply because the company was performing construction repair work, while the construction standard did apply and the employees worked near an unprotected edge without fall protection. The citation was still vacated because neither the foreman nor superintendent knew of the particular hazard, the work was not expected in the area where the employee fell, and the Secretary did not prove constructive knowledge. The company also established unpreventable supervisory misconduct through specific fall rules, repeated training, frequent audits, extensive documented discipline, and termination of the foreman who failed to complete the required job-hazard analysis.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.28(b)(1)(i), with 29 C.F.R. § 1926.501(b)(1) alleged in the alternative.
• Outcome: Serious citation item vacated; proposed $13,260 penalty removed.
• Key point: Proof of a fall-protection violation and exposure does not establish liability without employer knowledge, especially when the employer proves a well-enforced safety program and unforeseeable supervisory misconduct.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

MILLER INSULATION CO. ,
INC. ,

Respondent.

OSHRC Docket No .
19-1431

Appearances:

Bryan Kaufman , Esq. , Department of Labor, Office of Solicitor,
D enver ,
Colorado

For Complainant

Thomas R.
Revnew , Esq. ,
Peters,
Revnew ,
Kappenman
& Anderson ,
Minneapolis ,
Minnesota

F or Respondent   

Be fore: Judge
Christopher D. Helms – U. S. Administrative Law Judge

DECISION AND ORDER

I. Procedural History

On
April
19 , 201 9 ,
Miller Insulation Co., Inc., (“Respondent”) performed work at a jobsite located at 605 Fourth Avenue SE, Crosby, North Dakota (“ w orksite”
or “site” ). On
that
date, three of Respondent’s employees, Francisco Andrade (“Andrade”),
[redacted]
( “victim” ) , and
[redacted],
entered a mezzanine on the
site
in order to
perform warranty
maintenance repair insulation work. (Ex. J-25). On April 19 ,
2019,
Respondent’s
employee,
the
victim ,
fell from the edge of the mezzanine where its wooden floor met a drop ceiling made of thin tiles placed on a
thin metal grid. (Ex. J-17, J-25, J-26). The
victim
fell onto his head and neck area and later passed away at a hospital. (Ex. J-16, J-18, J-25). In response to the employee’s worksite injury ,
the Occupational Safety and Health Administration (“OSHA”) began an inspection of the Divide County High School
site
on April 23, 2019. As a result of OSHA’s inspection, the Secretary of Labor (“Secretary”) issued a one-item serious citation to
Respondent . The citation, as amended, 1
alleged a serious violation of
the
general industry standard
29 C.F.R. § 1910.28(b)(1)( i ) , or in the alternative,
the
construction standard
1926.501(b)(1) . 2 The citation
proposed a penalty of $13,260.

Miller Insulation
filed a timely notice of contest bringing the matter before the Occupational Safety and Health Review Commission (the
“ Commission ” ). 3
The matter was designated for Simplified Proceedings by the Chief Administrative Law Judge and assigned to this Court on
September 23 , 201 9 . On or about
October 2 , 2019,
the parties jointly
moved to discontinue simplified proceedings in favor of conventional proceedings, which was granted on
October 3 , 2019. A trial was held on
May 25-27, 2021,
and
June 2 , 20 21 ,
via videoconference . The following individuals testified: (1)
Glen Alexander,
a superintendent for
Respondent ; (2)
Francisco Andrade ,
a former
employee
for Respondent ; (3)
Jerome
Ralph ,
a safety coordinator for Respondent ; (4)
Ernest
Barnhard ,
a safety manager for Respondent ;
and
(5)
Compliance Safety and Health Officer (“CSHO”) Kari
Thorsteinson . Both parties submitted timely post-trial briefs. Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order as its findings of fact and conclusions of law.

For the reasons discussed, citation 1, item 1,
as originally issued
and
as amended
in the alternative , is
VACATED.

II. Stipulations
& Jurisdiction

The parties
stipulated to
various facts, including several jurisdictional details . 4

( Joint Stipulation Statement ).
Based on the
Joint
S tipulations, the Court finds
the
Commission has jurisdiction over th is
action
pursuant to Section 10(c) of the Act , 29 U.S.C.
§
659(c).

Further, the Court obtained jurisdiction over this matter under section 10(c) of the Act upon Respondent’s timely filing of a notice of contest. 29 U.S.C. § 659(c).

T he Court
also
finds Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of section s
3(3) and
3(5) of the Act,
29 U.S.C. §§ 652(3), (5).

III. Factual Background 5

A. The Company

Respondent
provides insulation services to the industrial, commercial, oilfield, and residential markets. (Ex. J-14). It is an employee-owned construction company headquartered in Bismarck, North Dakota, with approximately 600 employees. (Tr. 818). In 2019,
Respondent
was engaged in
insulation
maintenance repair work
at
a
worksite
located in Crosby, North Dakota. (Tr. 48, 89, 599).

Respondent’s
w orksite management consisted of foreman Francisco Andrade. (Tr. 94, 111, 171, 256; Ex. J-1). On March 14, 2019,
Respondent’s
superintendent, Glen Alexander,
conducted a pre-job walk-through of the
w orksite with Robert Boyer, a superintendent with
the
general contractor, FCI Constructors (“FCI”). (Tr. 180). Both individuals reviewed FCI’s punch list of items to be completed at the
w orksite
in order to
determine the scope of work. (Tr. 180-183; Ex. J-8). The punch list referenced ,
inter alia,
work that had previously been performed at the worksite
and which areas required repair work . (Tr. 49-50 , 52, 180-183; Ex. J-8 ).
Respondent’s
main role was to repair insulation on piping and valves and replace stained ceiling tiles. (Tr. 186, 243-245; Ex. J-8). Mr. Alexander and Mr. Boyer
examined stain ed
ceiling tiles and then climbed a wall ladder to enter a mechanical room on a mezzanine above. (Tr. 55-56, 186-190, 245).

B. The
Mezzanine

Upon entry from the ladder, from left to the right, the room was roughly 5 0 -55 feet long, 12 feet wide, and 6-6 .5 feet tall. (Tr. 188-191; Ex. J-17). From the entrance, the end of the right side of the room was about 15 feet away, leaving about 35-40 feet to the left side of the room. (Tr.
190; Ex. C-6 ). Piping and an air handler immediately to the left of the room’s
entrance prevented
walking directly to the left end
and obscured
the view from one end to the other. (Tr. 193, 202-203, 406-407;
Exs . C-6, J-9). The
wood floor ing
did not extend all the way to the wall s at each end of the mezzanine. (Tr. 87, 220-221; Ex. J-17). Between the end of the wood floor and walls there were thin tiles placed on a metal grid, which served as the drop ceiling for the hallway below. (Tr. 45-49; Ex. J-17). In order to
get to this area, an individual would have to walk straight ahead of the entrance, turn left for about 6-8 feet, and climb over the air handlers in the middle
back of the room. (Tr. 202, 220-221).

Mr. Alexander spent about five minutes on the mezzanine and did not identify a clear hazard. (Tr. 62-63, 100). While on the mezzanine, Mr. Alexander used his cell phone’s flashlight and took pictures of each area where work was to be performed. ( Tr. 187-203, Ex. J-9 at 121, 127-129, 134-135). Given the relatively poor lighting, Mr. Alexander had asked Mr. Boyer to ensure the area was better illuminated before the work commenced. (Tr. 79).

C. The Incident

On April 19, 2019, Mr. Andrade,
the
victim , and
[redacted]
were scheduled to perform the insulation repairs at the
w orksite. (Tr. 94, 111, 171, 256, 273, 286; Ex. J-1). Mr. Alexander had planned on working at the
w orksite, but due to extenuating circumstances
informed Mr. Andrade that he would need to go in his place. (Tr. 203-205). On the morning of April 19, 2019, Mr. Andrade,
the
victim ,
[redacted] , and Mr. Alexander met to discuss the repairs to be made and load up supplies. (Tr. 205, 212-213). Mr. Alexander explained what work needed to be done at the
w orksite as he reviewed the item punch list and
photographs
he had taken
with the employees. (Tr. 212-213;
Exs . J-8, J-9). Mr. Alexander instructed Mr. Andrade to meet with Mr. Boyer to go over the work to be performed and to look after
[redacted]
and
the
victim . (Tr. 207, 215).

While on the way to the
w orksite, Mr. Alexander received a work emergency call, which required his attention. (Tr. 214-215). Mr. Alexander then got in contact with Mr. Andrade to inform him that he would need to continue to the worksite without him. (Tr. 203-205, 215). When Mr. Andrade arrived at the
w orksite, Mr. Boyer reviewed the item punch list with him and explained what worked needed to be completed. ( Tr. 286-290).

When
[redacted]
and
the
victim
arrived at the
w orksite, Mr. Andrade helped them bring work materials up to the mezzanine. (Tr. 293, 309-310). Mr. Andrade directed
[redacted]
and
the
victim
on the repair work that needed to be completed based on pictures Mr. Alexander had provided. (Tr. 288; Ex. J-9). Mr. Andrade informed them they were only to complete the insulation repair work depicted in the pictures. (Tr. 288). They were not to look for work outside this original scope and were to call a supervisor
for permission to conduct additional work outside their original assignment. (Tr. 236-237, 288).

Mr. Andrade testified that he had no difficulty with the lighting in the mezzanine and could see the floor and walls without the use of his hard hat headlamp. (Tr. 314-315, 320-321, 411-413). While working on the right side of the mezzanine,
[redacted]
yelled from downstairs that
the
victim
had fallen and was injured. (Tr. 330,
391- 394 ). Mr. Andrade immediately ran downstairs to find
the
victim
on the ground with paramedics. (Tr. 330).

After
receiving a call from
[redacted]
and
learning of the accident ,
Mr. Alexander headed to the
w orksite to investigate the incident. (Tr. 215-216). He completed an accident report and took photographs of the scene. (Tr. 225-226;
Exs . J-17, J-18). Mr. Alexander noted there was adequate lighting on the mezzanine, including in the area, where no work was
scheduled to be performed and
the victim
had been working. (Tr. 84, 199-200, 220, 226).

After his fall,
the victim
was air lifted to Trinity Hospital in Minot, North Dakota where he later unfortunately passed away on April 22, 2019. (Ex. J-25). Mr.
Barnhard
reported the incident to OSHA
and
completed an accident report of his own. (Tr. 540, 782-783; Ex. J-25).

D. The
Incident
Inspection

Following the incident, Mr.
Barnhard
discovered through his investigation that Mr. Andrade had only partially completed a job hazard assessment (“JHA”) before starting work. (Tr. 530, 540, 548;
Exs . J-25, J-21). Mr. Andrade testified he failed to complete a JHA before starting work because he “spaced out on it.” (Tr. 382-384, 400-401). A week after the incident, on April 26, 2019, Mr. Andrade was disciplined for failing to complete the JHA. (Tr. 408-410). He was suspended without pay for three days, demoted for thirty days, and placed on a
six-month
probation with any violation occurring during said time resulting in immediate termination. (Tr. 408-410 ; Ex. R-13). 6

On April 22, 2019, CSHO
Thorsteinson
received a call from Mr.
Barnhard
reporting an employee had been hospitalized. (Tr. 620-621). After receiving the call, CSHO
Thorsteinson
traveled to the
w orksite and conducted an inspection the following day. (Tr. 622-623). Through the course of
her
investigation,
s he
spoke with
various representatives
of Respondent
and FCI. (Tr. 623-624). As a result of the CSHO’s investigation, she determined
the victim
was exposed to a fall hazard next to an unprotected edge .

(Tr. 640-643). CSHO
Thorsteinson
found,
inter alia ,
that the height of the drop ceiling to the floor was approximately nine feet seven inches ,
employees were exposed to fall hazards for approximately forty-five minutes , and the probability of falling near an unprotected edge was greater because work was being performed near
the unprotected edge . (Tr. 634 , 640-644 ). Through her investigation, CSHO
Thorsteinson
determined
that
Respondent
had violated the requirements covered under 29 C.F.R Part 1910
and recommended OSHA issue a citation . (Tr. 635-636) .

IV. Discussion

A. Law Applicable to Alleged Violations

In order to establish a violation of a safety standard under the Act, in this case 29 C . F . R .
§19 10 . 28 ( b )(1) ( i ) or in the alternative 29 C.F.R. § 1926.501(b)(1) ,
Complainant
must prove by a preponderance of the evidence: (1) the cited standard applies; (2) the employer failed to comply with the terms of that standard; (3)
employees had access to the hazardous condition covered by the standard; and (4)
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);
Ormet
Corp. , 14 BNA OSHC 2134 (No. 85-531, 1991) (citation omitted);
Sal Masonry Contractors, Inc. , 15 BNA OSHC 1609 (No. 87-2007, 1992) (citation omitted).

The Secretary
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)
(emphasis added) .

1. Citation 1, Item
   1

Complainant alleged a serious violation of the Act in Citation
1 ,
Item
1
as follows:

29 CFR 19 10 . 28 ( b )(1) ( i ) : The employer did not 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 was protected from falling :

On
April 19, 2019, and at times prior for employees expose d
to a
10
foot
fall hazard through a drop ceiling while insulating pipes next to an unprotected edge at 605 Fourth Avenue SE in Crosby, North Dakota .

See
Citation.

In the alternative, pursuant to this Court’s Order granting l eave to amend the complaint and citation, Complainant alleges a serious violation of 29 C.F.R. § 1926.501(b)(1) :

29 CFR 1926.501(b)(1): The employer did not ensure that each employee on a walking/working surface with an unprotected side or edge which was 6 feet (1.8 m) or more above a lower level was protected from falling
by the use of
guardrail systems, safety net systems, or personal fall arrest systems.

a. The Standard
Applies

Under Commission precedent, “the focus of the Secretary ’ s burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.”

Ryder Transp. Servs. , 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014)
(concluding “that the Secretary has failed to establish that the cited general industry standard applies to the working conditions here”);
KS Energy Servs., Inc.,
22 BNA OSHC 1261, 1267 (No. 06-1416, 2008)
(finding “the cited ... provision was applicable to the conditions in KS Energy's traffic control zone”),
aff'd , 701 F.3d 367 (7th Cir. 2012);
Active Oil Serv., Inc.,
21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)
(finding “that the confined space standard applies to the cited conditions” because “the vault was a confined space”);
Arcon , Inc.,
20 BNA OSHC 1760, 1763 (No. 99-1707 , 2004)
(“In order
to establish a violation, the Secretary must show that the standards applied to the cited conditions.”)

The amended citation alleges
that
Respondent
violated a general industry standard, or in the alternative, a construction standard. Determining whether an activity is construction or maintenance requires consideration of whether a structure is altered, the project’s scale and
complexity, and whether it is a routine activity.

See Brand Energy Sols. LLC , 25 BNA OSHC 1386 (No. 09-1048, 2015). Pursuant to 29 C.F.R. § 1910.5(c)(1), if a more specific standard exists that is applicable to a “condition, practice, means, method, operation, or process,” such as a construction standard, the more specific standard applies over the general.

Respondent
is a construction company that was performing repair insulation work when the violation occurred. (Tr. 48, 89, 599, 818;
Exs . J-14, J-25).
Therefore, the
repair
work
Respondent
performed would fall under the purview of Part 1926, Subpart
M , Section
501
–
Duty to Have Fall Protection . Any hazards involving
construction work repair and fall protection
would fall within the scope of the
aforementioned Subpart
including its relevant sections.

Construction standards apply “to every employment and place of employment of every employee engaged in construction work.” 29 C.F.R.
§ 1910.12(a). Construction work is defined as “work for construction, alteration,
and/or repair , including painting and decorating.” 29 C.F.R.
§ 1910.12(b).

Because the work at the
school
was repair work, it fell under OSHA’s definition of “construction work,” which means the construction standards applied, not the general industry standards.
The Court finds 29 C.F.R. § 1926. 501 ( b )(1 ) applies
and consequently 29 C.F.R. § 1910.28(b)(1)( i ) does not .

b. The Standard was Violated .

Respondent
does not dispute that the cited standard applies to this case and was violated . ( See
Resp’t
Br.
at 13-14).

Here, the cited standard
required Respondent
to ensure that each of its employees on a walking/working surface with an unprotected side or edge, 6 feet or more above a lower
level,
was
protected from falling
by the use of
a guardrail systems, safety net systems, or personal fall arrest systems. See
29 C.F.R. § 1926.501(b)(1). The record reveals that Respondent violated the
standard by failing to use any fall protection system to protect its employees from falling off the mezzanine’s unprotected edge to the hallway fl oor which was at least nine feet below. (Tr. 634, 640-644; Ex. J-25).

Accordingly,
in light of
the abovementioned, this Court finds Respondent
violated
the terms of the standard.

c. Employees were Exposed to a Hazardous Condition .

“The Secretary always bears the burden of proving employee exposure to the violative conditions.”
Fabricated Metal Products, Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and footnotes omitted). The Commission’s
longstanding test
for hazard exposure requires the Secretary to “show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
Delek
Ref., Ltd. , 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) ( citing id. ).
See also Rockwell Intl. Corp. , 9 BNA OSHC 1092 (No. 12470, 1980);
Gilles &
Cotting , 3 BNA OSHC 2002 (No. 504, 1976). 7

The zone of danger is the “area surrounding the violative condition that presents the danger to employees.”
Boh
Bros. Constr . Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013)
( citing RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger is determined by the hazard presented by the violative
condition and
is normally th e
area surrounding the violative condition that presents the danger to employees which the standard is
intended to prevent. RGM Construction , Co., 17 BNA OSHC at
1234; Gilles
&
Cotting , Inc ., 3 BNA OSHC
at
2003.

Respondent’s
employees
were directly exposed to a hazardous condition when they worked in the
mezzanine near an unprotected edge without any fall protection system to protect them from falling to the hallway floor nine feet below. (Tr. 634, 640-644; Ex. J-25). Courts have long held that exposure is met by an employee’s mere access to a hazardous situation.

Gilles &
Cotting , Inc. , 3 BNA OSHC 2002, 2003 (No. 504, 1976);
Donovan v. Adams Steel Erection, Inc. , 766 F.2d 804, 812 (3d Cir. 1985);
S. Hens, Inc. v. Occupational Safety & Health Review Comm'n , 930 F.3d 667, 681 (5th Cir. 2019). Here it is undisputed ,
Respondent’s employees had access to and entered the mezzanine on
April 19, 2019, to perform insulation repair work. (Tr. 634, 640-644; Ex. J-25).

Furthermore, it is
undisputed
the
victim
fell
from the mezzanine’s unprotected edge and died as a result. (Tr. 47-49, 71, 85-87;
Exs . J-16, J-25). The victim’s
actual exposure, in falling from the mezzanine’s unprotected edge and passing away from his fall,
also establishes exposure.

See S & G Packaging, Co., LLC
( S&G ), 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (injuries establish actual exposure to the violative condition).
As such, this Court finds
that
the
victim
w as an
exposed
employee.

d. Knowledge

Respondent’s knowledge of the violation may be established
by showing
the employer knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. § 666(k) ;
Ormet
Corp. , 14 BNA OSHC 2134 (No. 85-531, 1991). When
determining
whether an employer has been reasonably diligent , the Commission considers
“ several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to
prevent the occurrence of violations.”

Precision Concrete Constr. , 19 BNA OSHC 1404 (No. 99-0707, 2001) . An employer’s awareness of the violation may be shown through actual or constructive knowledge of said violation . It is not necessary to show the employer knew or understood the condition was hazardous. Phoenix Roofing, Inc. , 17 BNA OSHC at 1079-1080 (citations omitted) .

“[An] employer’s duty is to take
reasonably
diligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard.”

Ragnar Benson, Inc. , No. 97-1676, 1999 WL 770809, at *3 (OSHRC Sept. 27, 1999).

An employer is not automatically aware of a hazard in plain view, especially if not observed by a supervisory employee.

Cranesville
Block Co., Inc./Clark Division , Nos. 08-0316 & 08-0317, 2012 WL 2365498, at *10 (OSHRC June 12, 2012).

The Secretary contends that
Respondent
failed to exercise reasonable diligence to discover and
to
prevent fall hazards and
that Respondent
therefore had constructive knowledge of the violative condition. According to the Secretary, Respondent did not have work rules designed to prevent the violation at issue, as its fall protection rules were insufficient with respect to preventing the cited violation.
( Sec’y Br.
at 12-15). The Secretary further argues that Respondent had failed to effectively communicate any works rules or effectively and consistently enforce said rules. (Sec’y Br. at 15-21). Additionally, the Secretary contends that Mr. Andrade’s involvement and inactions at the
w orksite
provide strong evidence of Respondent’s ineffective safety program and lax disciplinary policies. (Sec’y Br. at 17-21). Further, the Secretary makes the argument that Mr. Alexander’s and Mr. Andrade’s knowledge of the hazard should be imputed to Respondent. (Tr. 638-639). The Secretary claims that Mr. Alexander had knowledge of the hazard because “it is his job to look for hazards on the job site” and that he “failed to make sure all edges of the
mezzanine were safe while knowing the me zzanine was elevated.” (Tr. 638-639; Ex. J-27). The
Secretary additionally argues that Mr. Andrade had knowledge of the hazard because “[h]e noticed the edge of the mezzanine on the right side posed a fall hazard,” but did not stop to get fall protection, or see if the opposite side posed “the same hazard.” (Tr. 638-639; Ex. J-27).

In support of Respondent’s employee misconduct affirmative defense, Respondent claims that it met the reasonable diligence factors through
Respondent’s
safety program, maintaining adequate work rules, adequately training employees on the work rules, effectively discovering violations of the work rules, and effectively enforcing those rules. ( Resp’t
Br. at
19-30).

The credible record
evidence reveals that Respondent
did not
ha ve
actual or
constructive knowledge of the hazardous condition of
the victim
working
from the mezzanine’s unprotected edge
without fall protection . (Tr. 47-49, 71, 85-87;
Exs . J-16, J-25).

The Court first addresses whether Mr. Andrade is a supervisor whose knowledge can be imputed
to
Respondent . Although
Mr. Andrade testified
that he did not believe he was acting as a supervisor or foreman at the
w orksite, he was responsible for
many typical foreman duties, including properly completing a J H A form and directing other employees to which work needed to be completed. (Tr. 280-284, 288, 383;
Exs . C-6, J-9 ). Mr. Andrade testified that he became a foreman for
Respondent
in 2018 well before the date of the incident. (Tr. 256). Mr. Andrade further testified that he had been
the victim’s
foreman on prior jobs to the job at the
w orksite. (Tr. 379-380). Further, Mr. Andrade was routinely given oversight of other employees and would conduct safety training and toolbox talks with them. (Tr. 379-386). A preponderance of the evidence establishes that
Mr. Andrade
was responsible for the
work being completed at the
w orksite.
An employee who has been delegated authority over another employee, even if only temporarily,
is considered to be
a supervisor for purposes of imputing knowledge to an employer. American Engineering & Development Corp ., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012);
Diamond Installations, Inc ., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006);
Tampa Shipyards, Inc.,
15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). Mr. Andrade
as
foreman
had authority over
[redacted]
and
the
victim , and as such is a supervisor for purposes of imputing knowledge
to
Respondent .

According to the Commission, where a complainant shows that a supervisor 8
had actual knowledge of the violation,
“ such knowledge is generally imputed to the employer.” ComTran ,
722 F.3d at 1307–08. See also
Am. Eng’g & Dev. Corp. , 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) quoting
Access Equip. Sys. , 21 BNA OSHC 1400, 1401 (No. 03-1351, 2006) and
Regina Constr. Co. , 15 BNA OSHC 1044, 1046 (No. 87-1309, 1991).

However, neither Mr. Andrade nor Mr. Alexander had knowledge of the hazard which could be imputed to Respondent. The Secretary
failed to provide evidence that the hazard existed when Mr. Alexander conducted his walkthrough before the incident. The record shows that Mr. Alexander
spent about five minutes on the mezzanine and did not identify a clear hazard. (Tr. 62-63, 100). Similarly, Mr. Andrade did not identify a clear hazard
while working at the
w orksite or when he observed
where
the
victim
was working. (Tr. 288, 314-315, 319-321, 331).

While the Secretary has alluded to the establishment of constructive knowledge through Mr. Andrade ’s failure to
comple te
a JHA, this is mere speculation. ( Resp’t
Br. at 16-17, 20). The
record reveals that Mr. Andrade directed
[redacted]
and
the
victim
on the repair work that needed to be completed based on pictures Mr. Alexander had provided. (Tr. 288; Ex. J-9). Only the insulation repair work depicted in the pictures was to be completed. (Tr. 288). However, the area that
the victim
fell
from had no scheduled work to be performed and was 20 feet away, and partially barricaded by pipes, from the work he was instructed to complete. (Tr. 220 -221 , 226 , 288;
Exs . J-9, J-17 ). Mr.
Andrade
testified
he did not direct
the victim
to work in the fall area because there was no work to be completed there.

(Tr. 288) . The Secretary has not proven that Respondent
failed to take reasonably diligent measure s
to inspect the worksite and certainly has not established that Respondent
would have discovered the fall hazard through reasonable diligence in an area that Respondent never intended or anticipated performing work in.

e. Unpreventable
Supervisory
Misconduct

Under the Act,
Respondent raises the affirmative defense of unpreventable employee misconduct in its
A nswer and Post Hearing Brief. ( Resp’t
Br. 1 9 - 30).

The burden is on Respondent to prove the elements of this affirmative defense. To establish the affirmative defense of unpreventable employee misconduct, in cases that do not involve supervisor misconduct, the employer must prove that it
“ [(1)] has established work rules designed to prevent the violation [; (2)] has adequately communicated these rules to its employees [; (3)] has taken steps to discover violations and [; (4)] has effectively enforced the rules when violations have been discovered. ”
Western World, Inc. v. Sec’y of Labor,
604 F.
App’x
188, 191 (3d Cir. 2015) (unpublished), quoting
PP&L,
737 F.2d at 358 (emphasis omitted) (quoting
Marson Corp ., 10 BNA OSHC 1660 (No. 78-3491, 1982). “When the alleged misconduct is that of a supervisory employee, the employer must ... establish that it took all feasible steps to prevent the accident, including adequate ... supervision of its [supervisory] employee.”
See Archer- Western Contractors, Ltd. , 15 BNA
OSHC 1013 (No. 87-1067, 1991),
aff’d Archer-W. Contractors, Ltd. v. Occupational Safety & Health Rev. Comm'n , 978 F.2d 744 (D.C. Cir. 1992) (unpublished) (citations omitted).

When an employer’s unpreventable employee misconduct defense involves a supervisor, the “employer is excused from responsibility for acts of its supervisory employees only if it shows that the acts were contrary to a consistently enforced company policy, that the supervisors were adequately trained in safety matters, and that reasonable steps were taken to discover safety violations committed by its supervisors.”

W. Waterproofing Co. v. Marshall , 576 F.2d 139, 144 (8th Cir. 1978) (citations omitted).

The factors illustrating Respondent’s
lack of
constructive knowledge of the
w orksite hazardous condition also
support
Respondent’s unpreventable employee misconduct defense.

Burford’s Tree, Inc ., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) (the factors for evaluating constructive knowledge are the same factors for evaluating the unpreventable employee misconduct defense),
aff’d , 413 F.
App’x
222 (11th Cir. 2011) (unpublished).

The Secretary argues that Respondent cannot prove unpreventable supervisory misconduct because Mr. Andrade’s failure to complete a J H A on the day of the accident, and the resulting violation and accident were foreseeable. (Sec’y Br. at 27). Further, the Secretary argues that Respondent did not adequately communicate or enforce
its work rules and safety programs. (Sec’y Br. at 27-28).

Respondent argues that
all of
the elements of the defense are established, as it maintained adequate work rules, adequately trained employees on the work rules, had effective means of discovering violations of the work rules, and had effective enforcement of those rules. ( Resp’t
Br. at 20-30).

i. Work Rules

The record reveals that Respondent had a good safety program that was effectively communicated to its employees that specifically required the use of fall protection for employees working at or above heights of six feet. (Ex. J-2). Work rules are included in various safety policies distributed and available to employees, such as Respondent’s: (1) Safety Handbook; (2) Employee Handbook; (3) Workplace Accident and Injury Reduction Act (“AWAIR”) Program; (4) Risk and Hazard Assessment Program; and (5) Safety Manual.
( Ex s . J-2, J-13, J-14, J-15, R-8) .

Many of Respondent’s
toolbox
talks, employee orientation tests, and other handouts also
provide the framework for Respondent’s
safety and policy objectives. ( See
Exs . R-1; R-17) .

An employer’s work rule must be clear enough to eliminate employee exposure to the hazard covered by the standard, and thus it “must be ‘designed to prevent the cited violation.’”
Beta Construction , 16 O.S.H. Cas. (BNA) 1435 (O.S.H.R.C.), 1993 O.S.H.D. (CCH) P 30239, 1993 WL 406468 at *10 (O.S.H.R.C. 1993).
“Generally speaking, the
work rule must be sufficiently precise to implement the requirements of the standard or be functionally equivalent to it.”
Id . Here, Respondent’s Safety Handbook includes specific fall protection rules. (Ex. J-2). Respondent’s Handbook instructs employees that fall protection is required “as a minimum… [w]hen working higher than six feet up on a platform or other support.” (Ex. J-2 at 59). Respondent’s employees are instructed on the need to wear fall protection “[w]hen working adjacent to an unguarded floor opening… Floor openings should be covered or barricaded and marked.” (Ex. J-2 at 59). Additionally, Respondent’s Safety Manual specifically includes fall protection guidance and safety concerns when working around unprotected sides and edges. (Ex. J-13 at 6362-6370). Further, the
Safety
Manual’s Fall Protection Program require s
employees to

use guardrails and barricade warning tape, along with fall protection, while working near unprotected sides and edges. Id .

This Court finds that Respondent had adequate work rules which specifically address and are intended to prevent
the violation in this case.

ii. Communication

Respondent communicate d
its rules concerning fall protection to its employees in various ways. Respondent’s orientation video, which is shown to all employees, discusses fall protection and Respondent’s corresponding work rules. ( Tr. 156-157, 715-716;
Ex.
J-3 ). Not only is fall protection gear explained to employees through video, but Respondent specifically provides employees with fall protection equipment and training itself. (Tr. 168-169, 716-720; Ex. J-3). Respondent’s employees all receive a Safety Handbook, which includes fall protection
guidance, and have access to the Safety Manual’s fall protection program. (Tr. 147-148, 165-166, 742; Ex. J-13 at 6369-6370). Further, Respondent’s employees regularly receive additional fall protection training through toolbox chats, OSHA 10, and OSHA 30 trainings. ( Exs . J-12, R-7, R-8 at 6184). Respondent specifically conducted thirty toolbox chats, in the year prior to the incident, where they informed employees on fall protection alone. (Tr. 722-723; Ex. R-17).

Here, the record shows that Mr. Andrade
and
the
victim
were
well aware
of Respondent’s work rules concerning fall protection and unprotected edges. When both employees were hired, they reviewed the safety manual, employee handbook, safety orientation class, and successfully passed the safety test. (Tr. 164-167, 333-338;
Exs . J-2, J-3, J-11 J-13, J-14, R-1). Additionally, Mr. Andrade would not only attend many toolbox talks, but would lead them as well. (Tr. 385-387; Ex. R-7). Further, Mr. Alexander
provided
the victim
with hands-on training, which included direction to tie off any time he would be working 6 feet above the ground or away from a leading
edge. (Tr. 16 4 -170 ; Ex. J-10 ). Fall protection guidance had
actually been
communicated
to
the
victim
just a few days before the incident. (Tr. 176-178; Ex. J-12).

As a foreman, Mr. Andrade was also trained on Respondent’s requirement to complete JHAs at the beginning of jobs, which included inspecting worksites for potential hazards. (Tr.
383-384). The JHA process specifically references identifying and abating potential fall hazards. (Tr. 720-721; Ex. J-15 at 86-87).

This Court finds Respondent’s work rules were effectively communicated
to employees .

iii. Reasonable Steps to Discover Violations

The record shows that Respondent took reasonable steps to discover violations . Respondent employs 6 safety coordinators who conducted jobsite audits, with each coordinator auditing 5 to 8 jobsites per week. (Tr. 464-465, 699-701). The coordinators ’
duties included reviewing JHAs weekly to ensure accuracy and completeness. (Tr. 129-134; Ex. R-5). Additionally, superintendents, like Mr. Alexander, would visit jobsites at least once per week for safety audits. (Tr. 150-151, 154-155). During these visits, Mr. Alexander would ensure supervisors completed their JHAs before starting work and would take remedial action if they were not complete. (Tr. 159-160, 459-460; Ex. J-14 at 6194-6195). Lastly, Respondent encouraged and incentivized employees to identify safety violations through its “good catch” program. (Tr. 707-708).

iv. Enforcement

Respondent took reasonable steps to enforce violations of its work rules. In the year before the accident, the company issued 23 disciplinary write-ups for violations of the fall protection rules and 11 disciplinary write-ups for failure to complete or turn in J H As.

( Tr. 755– 7 77;
Ex.
J- 28). Respondent
also terminated two employees for repeated failure to practice proper
fall protection protocol. (Ex. J-28 at 253, 303). Between 2017 and the date of the accident, Respondent issued 77 disciplinary citations related to fall protection ,
17 related to JHA failures , and over 800 disciplinary write-ups all together. (Tr. 756; Ex. J-28).

Respondent
has
me t
its proof burden regarding this affirmative defense. Mr. Andrade’s actions and failure to complete a JHA before commencing work at the
w orksite
were counter to the work rules Respondent consistently communicated and enforced to its employees.

(Tr. 382-384, 400-401, 548; Ex. J-21 at 340-341). Respondent disciplined Mr. Andrade for his violation and ultimately let him go. (Tr. 409; Ex. R-13).

The Court finds the Secretary failed to establish his
prima facie
case and that Respondent has met its burden of proof regarding the affirmative defense of unpreventable employee misconduct.

O RDER

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 Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1 , and as amended in the alternative ,
   is VACATED, and no penalty is assessed.

SO
ORDERED.         

/s/ Christopher D. Helms

Dated:

January 24, 2022

Denver, Colorado

Christopher D. Helms

Judge, OSHRC

"

1
On July
29 , 20 20 , the Secretary’s
U nopposed Motion to
A mend the Citation and Complaint was granted. The amendment set forth the
citation item be amended to allege a violation of the construction standard of 29 C.F.R .
§ 1926.501(b)(1) in the alternative.

2
The Secretary originally
cited
Respondent
for a violation of
general industry standard 29 C.F.R. § 1910.28(b)(1)( i )
of the Occupational Safety and Health Act of 1970, (the
“ Act ” ),
29 U.S.C. §§ 651-678 .

Prior to the hearing, Respondent filed a Motion for Summary Judgment contending that the Complaint should be dismissed. Among other arguments, Respondent
argued that
no material disputed facts existed as to whether the violations
as
alleged
resulted from unpreventable employee misconduct by its supervisor at the time .

Following review and consideration of Respondent’s Summary Judgment Motion, the
undersigned denied the motion finding material facts existed which prevented summary judgment from being entered against the Secretary .

3
The Commission is an independent adjudicatory agency and is not part of the Department of Labor or OSHA. 29 U.S.C. § 661. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the OSH Act and has no regulatory functions. 29 U.S.C. § 659(c).

4
The Joint Stipulations were received and admitted as
a
Joint Stipulation Statement.

5
The factual background is based on the credible record evidence, as discussed below, and consideration of the
record as a whole . Contrary evidence is not credited.

6
On July 9, 2019, Mr. Andrade’s employment with Respondent was terminated for violating company policy while on his probationary period. (Tr. 410-411, 487-489; Ex. R-14).

7
In
Gilles &
Cotting , Inc ., the Commission rejected the “actual exposure” test, which required evidence that someone observed the violative conduct, in favor of the concept of “access”, which focuses on the possibility of exposure under the conditions. See Gilles &
Cotting , Inc ., 3 BNA OSHC at 2002 (holding “that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”).

8
It is well settled an employee who has been delegated authority over other employees, even if only temporarily,
is considered to be
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). The Commission has long held it is the substance of the delegation of authority not the formal title of the employee having the authority. Dover Elevator Co ., 16 BNA OSHC 1281 (No. 91-862, 1993). See Diamond Installations , 21 BNA OSHC 1688 (No. 02-2080, 2066 (permitting imputation of knowledge based on temporary delegation). A person not having the authority to hire or fire, such power is not “sine qua non” of supervisory status . Rawson Contractors, Inc ., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003).