Harvestland Constructors, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Harvestland Constructors was building a feed mill in Georgia when an experienced carpenter fell 38 feet through an uncovered floor opening and died from his injuries. The carpenter had been assigned to cover the openings and was not using the available personal fall-arrest system when he fell. The judge granted Harvestland summary judgment because the Secretary could not establish actual or constructive knowledge of the condition. Harvestland required fall protection above four feet, regularly trained and inspected employees, used an outside safety consultant, and had never observed this carpenter working at height without fall protection. The judge found that constant supervision was not required and that evidence concerning possible defects in an unused anchorage strap was not material to the cited failure-to-protect standard. The citation was vacated, and the proposed $13,494 penalty was not assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(4)(i).
• Outcome: Summary judgment granted to Harvestland; serious fall-protection citation vacated and no penalty assessed.
• Key point: An employer is not constructively aware of every isolated safety violation when it has reasonably diligent training, inspection, and enforcement measures and no reason to anticipate the employee's conduct.

Full text (OSHRC public release)


Harvestland 20-0691 ALJ Decision

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 20- 0691

Harvestland
Constructors, Inc.,

Respondent.

Representatives:

Kristin Murphy , Esq. , U.S. Department of Labor, Office of the Solicitor,
Atlanta, GA , for Complainant

Mark A.
Waschak , Esq.
and
J. Larry Stine, Esq. ,
WIMBERLY, LAWSON, STECKEL,

SCHNEIDER & STINE, P.C. , for Respondent

JUDGE: Administrative Law Judge
Sharon D. Calhoun

DECISION AND
ORDER GRANTING RESPONDENT’S

MOTION FOR SUMMARY JUDGMENT

On
October 9, 2019,
employees of
Harvest land
Constructors, Inc., ( Harvestland )
were constructing
a feed mill in
Crawfordville, Georgia .
A carpenter
(Carpenter
NM)
had been assigned the task of covering openings
in an upper floor
with plywood
where equipment
would be installed later.
While
working alone on the
upper
f loor in the afternoon,
Carpenter NM
fell through an uncovered opening
to
the concrete floor below
and died
as a result of
his injuries.
A
personal fall arrest system was available on the upper floor , but
Carpenter NM
was not using it when he fell.

A compliance safety and health officer (CSHO)
for the Occupational Safety and Health Administration investigated the fatality .
O n
April 8, 2020,
the Secretary issued a Citation and Notification of Penalty
to
Harvestland
for a serious violation of 29 C.F.R. § 1926. 501(b)(4)( i ) , for failing to
protect
Carpenter NM
from falling through holes more than 6 feet above the lower level .

Harvestland
timely contested the Citation . The Secretary filed a
Complaint , to which
Harvestland
filed its
Answer . Discovery ensued. Now before the Court is
Harvestland’s
Motion
and Memorandum for Summary Judgment
( Motion ) , filed in January 2021 .
Harvestland
seeks summary judgment because, it contends,
the Secretary cannot establish
Harvestland
had actual or constructive knowledge
of the alleged violative condition.
In February 2021, the Secretary
filed his
Response in Opposition to Respondent’s Motion for Summary Judgment
( Response ), arguing
there are genuine disputes of material fact regarding
the adequacy of
Harvestland’s
fall protection measures
and
its
supervision
of the worksite .
In March 2021,
Harvestland
filed
its
Reply to Complainant’s Opposition to Motion for Summary Judgment
( Reply ), in which it cont ends
the Secretary’s
Response
misstates facts and makes unfounded assertions.

Having reviewed the documents and exhibits filed by the parties, the Court
finds there is no genuine
dispute
regarding any material fact
in this proceeding
and
concludes
Harvestland
is entitled
to summary judgment. Accordingly,
Harvestland’s
Motion
is
GRANTED
and
Item
1 of the Citation is
VACATED.

JURISDICTION AND COVERAGE

Harvestland
timely contested the Citation on
April 23,
2020.
The parties
agree
the Commission has jurisdiction over this action and
Harvestl and
is a covered employer under the Act ( Complaint, ¶¶
I & II;
Answer ,
¶¶ I & II).
Based on the
agreements
and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the
Occupational and Safety
Act
of 1970,
29 U.S.C. §§ 651-678 (Act) ,
and
Harvestland
is a covered employer under § 3(5) of the Act.

BACKGROUND

Facts Not in Dispute

In its
Motion ,
Harvestland
provides a
Statement of Undisputed Material Facts
( Statement ), in which it lists twenty-two statements it regards as undisputed. In his
Response , the Secretary disputes seven of these statements. 1
The fifteen undisputed “undisputed material facts” are:

1 .
Harvestland
Constructors, Inc. (“ Harvestland ”) is engaged in the construction of feed mills.

2.
[Carpenter NM]
was a carpenter approximately 66 years of age and was very experienced, as he had been working for Respondent
Harvestland
for 5 years .
. .
.
During those 5 years, one of
[Carpenter NM’s]
assigned tasks was to cover penetrations in the floor.

3. Matthew Munson is an experienced certified safety and health officer (CSHO) employed by the Occupational Safety and Health Administration (OSHA) and conducted the investigation of
   [Carpenter NM’s]
   death. 2

4. On October 9, 2019,
   [Carpenter NM]
   had been assigned to cover openings or “penetrations” in the floor that were necessary to allow for the installation of equipment to pass from one level of the structure to another.

5.
[Carpenter NM]
was the only worker assigned this task and had been doing it at this worksite for approximately 3 weeks before the accident, and customarily worked alone.

6. The floor covers were full sheets (8 feet x 4 feet) of ¾ inch plywood and with cleats (2 x 4 lumber cut and nailed to the plywood) so they would be stable and not slip when placed over floor penetrations.

7. On October 9, 2019,
   [Carpenter NM]
   had successfully completed the hol e -covering task on 9 of the 13 floor penetrations on the work level before the accident occurred, at approximately 3:30 p.m.

. . .

9.
[Carpenter NM]
had been observed on a regular basis properly utilizing fall protection.

. . .

12.
Harvestland
had records of disciplinary actions that were taken in the past for violating safety rules to include fall protection infractions; however, the most recent disciplinary action was dated in 2012 and there had been no documented disciplinary action for the current worksite .
. . .
However, the employees understood that if they violate a safety rule, they would be disciplined.

13. All
    Harvestland
    workers are required to use fall protection when working 4 feet or more above ground level.

14.
[Carpenter NM]
was current on his training and had never received any disciplinary actions against him
in the course of
his five years of employment with
Harvestland .

. . .

16.
Harvestland
hired an outside consultant to conduct monthly safety inspections.

. . .

18. On the day of the accident,
    [Carpenter NM]
    had been overheard having a heated argument with his wife over the telephone.

. . .

21.
[Carpenter NM]
had been working in the basement that day and immediately after the afternoon break, he went to the second floor and was out of sight of other workers and managers for approximately 10 to 15 minutes before he fell.

22.
No one witnessed
[Carpenter NM’s]
fall.

( Motion , pp. 2-5) (citations to CSHO’s deposition and exhibits omitted)

Deposition of CSHO Matthew Munson

Counsel for
Harvestland
deposed
CSHO Matthew Munson
on November 17, 2020, regarding his fatality investigation. His deposition testimony is summarized here.

Carpenter NM
fell to his death at the construction site in Crawfordville, Georgia , on October 9, 2019. The next morning,
CSHO
Munson
arrived at the worksite to
conduct a fatality investigation. He met with
Harvestland
personnel, including
S uperintendent
AM,
who was
Carpenter NM ’s
nephew .
Superintendent AM was the “inside superintendent.” He spent eighty to ninety percent of his time in
Harvestland’s
job trailer “dealing with vendors, dealing with any other issues that may arise, but most of the time was spent in the trailer doing paperwork[.]” ( Munson Dep.,
Tr. 18) Superintendent DR was the “outside superintendent,” who spent most of his time supervising crews as they worked. Foreman FT was a working foreman ( Munson Dep.,
Tr. 18-19).

The CSHO held an opening conference
with the personnel . CSHO Munson learned from management and from employees that Superintendent DR and Foreman FT conducted “frequent and regular inspections throughout the day.” ( Munson Dep.,
Tr. 19-20)
He also learned
Harvestland
contracted with an outside consulting company who performed monthly safety inspections .
Harvestland
provided fall protection training .
Carpenter NM ’s training was current
( Munson Dep.,
Tr. 20).

After the opening conference ,
CSHO
Munson
went to the upper level
where
Carpenter NM
had been working
( Munson Dep.,
Tr. 10-11).
CSHO Munson observed thirteen openings in the
upper level
floor where formwork had been removed
from the ceiling
on the lower level. Nine of the openings had been covered
with plywood
attached to cleats
to hold the plywood in position . The other four openings were not covered
( Munson Dep.,
Tr. 13-1 6 ).

CSHO Munson observed two
safety harnesses
on the upper floor. He stated, “One was lying on a stack of plywood. And the other
was lying next to the stack of plywood. And then there was a strap that was attached to one of the machines that was on the second floor [.]”
( Munson Dep.,
Tr.
16)
Carpenter NM
was not wearing
a safety harness when he fell. CSHO Munson did not inspect the safety harnesses he
saw on the upper level ( Munson Dep.,
Tr. 17).

CSHO Munson stated
Harvestland’s
use of the strap anchored to the machine on the upper floor did not meet OSHA’s requirements for fall protection. The strap was tied around a section of the machine “in a choker-type configuration” and was not equipped with a clevis to which an employee could attach a lanyard for fall protection ( Munson Dep. , Tr. 60) CSHO identified “minimal damage to the strap” in the form of “some tears and some nicks” in the strap ( Munson Dep. , Tr. 61).

CSHO Munson learned the
Harvestland
employees took an afternoon break from
3:00 to 3:15, and
Carpenter NM
fell
from the upper level approximately 10 to 15 minutes after returning to work
from the break
( Munson Dep.,
Tr. 24).
Before the break,
Carpenter NM
“was working in what they call the pit area ,
building forms for what they call housekeeping
pads, which machinery sits on which allows for easier clean -up. And that was located directly under the area where he fell from.”
( Munson Dep.,
Tr. 24-25)
Harvestland
employees had heard Carpenter NM talking on his cell phone earlier that day, having what “seemed to be a heated argument with someone.” ( Munson Dep.,
Tr. 25)

During his investigation, CSHO Munson found
Harvestland
had a site-specific safety plan and it held safety meetings every Monday (( Munson Dep.,
Tr. 32-33). In one employee statement taken by CSHO Munson, the employee stated a supervisor came around three or four times a day to check on the work being performed and to make sure employees are using safety equipment ( Munson Dep.,
Tr. 37-38). If a supervisor saw an employee not working safely, the employee would be sent home ( Munson Dep.,
Tr. 39).
Foreman FT told CSHO Munson that supervisors talked about the importance of using fall protection at the Monday safety meetings ( Munson Dep.,
Tr. 42).

CSHO Munson
did not find
an
example of employees not using fall protections during his investigation ( Munson Dep.,
Tr. 27) Both management personnel and employees told him they had never seen Carpenter NM fail to use fall protection equipment when it was required ( Munson Dep.,
Tr. 29 , 31 ). CSHO Munson
held a closing conference with
Harvestland
personnel. He informed them he had observed
“no violations” during
his investigation , and he
would not recommend the Secretary
to issue a citation
( Munson Dep.,
Tr. 22 -23 ).

Declaration of CSHO Matthew Munson

The Secretary attached a copy of CSHO Munson’s declaration, signed February 19, 2021 , (three months after his deposi tion date) to his
Response.
In his declaration, CSHO Munson states :

I, Matthew
Munson, state and declare as follows:

1. I am over 18 years of
   age, and
   have personal knowledge of the facts set forth herein.

2. I have been employed as a Compliance Safety and Health Officer (“CSHO”) for the Occupational Safety and Health Administration (“OSHA”) since September 2009.

3. On October 10, 2019, I initiated an inspection at Respondent
   Harvestland
   Constructors, Inc.’s facility at 843 Lexington Road, Crawfordville, GA 30631 (“the worksite”).

4. I initiated the inspection because of a reported fatality at the worksite on October 9, 2019. The fatality report indicated that
   [Carpenter NM]
   was working at the worksite to cover floor openings when he fell 38 feet to his death.

5. I conducted an opening conference at the worksite with Respondent’s Superintendent
   [AM] . I received permission to conduct a walk-around and to take photos and measurements.

6. During the inspection, I conducted interviews with
   [Superintendent AM],
   Site Superintendent
   [ DR ] , foreman
   [FT] , and non-management employees. Exhibit 1 is an accurate copy of the statements I took from
   [AM, DR, and
   FT],
   and non-management employees.

7. Exhibit 2 is an accurate copy of the photograph of the strap I found during the inspection. Through my inspection, I learned the following:

8.
[Carpenter NM]
was an employee with
Harvestland
Constructors, Inc. and was responsible for both identifying and covering holes that were uncovered. He was the only employee to perform this task.

9.
[Carpenter NM]
was not wearing fall protection when he fell.

10. Respondent’s fall protection equipment consisted of a personal fall arrest system (PFAS) including a nylon strap anchored to the machinery that weighed approximately 20,000 lbs. and bolted in place adjacent to the floor holes on the second floor. To be used, a full body harness was connected to the nylon strap that is anchored to the equipment with a double/dual leg lanyard. When I arrived, the harness was not connected to the strap.

11. According to employees and managers,
    [Carpenter NM]
    had been observed wearing fall protection while working at heights days prior to the accident and typically wore his harness at heights; based on
    [Carpenter NM’s]
    previous behavior, they claimed that they did not know why he was not wearing the harness or using the fall protection at the time of the incident.

12. Site Supervisor
    [ AM]
    stated that the employer inspected fall protection prior to each use to ensure proper installation and issued new lanyards whenever workers’ equipment became frayed.

13. The strap I found in plain view at the worksite and available for
    [Carpenter NM’s]
    use was frayed, torn, and lacked a clevis. See Exhibit 2.

14. I learned from non-management employees that “there are some employees that won’t wear fall protection.” See Exhibit 1 at DOL 220.

15. According to Respondent’s management, they performed frequent and regular inspections throughout the day to ensure that the unprotected floor holes were covered, secured, and labeled; however, inspections were not documented in any way.

16. Respondent’s management did not divulge how many inspections they performed during the day or when they performed the last inspection on the day
    [Carpenter NM]
    died.

17. On the day of the incident, management stated that they had not observed
    [Carpenter NM]
    working at the level from where he fell.

18. The removal of the form work created the floor hole prior to an afternoon break, resulting in the floor hole remaining unprotected for an extended period.

19. The superintendent and foremen indicated that as part of their daily job while walking around the site, they would address any safety violation observed by the workers and look at hazards such as fall protection, floor holes, slipping and tripping hazards, housekeeping, and personal protective equipment.

20. The daily inspection the day of
    [Carpenter NM’s]
    death did not include ensuring the decedent used fall protection while covering the unprotected holes .

21. No one would acknowledge that they were aware when the decedent was working on the upper level and if he used a personal fall arrest system.

22. There was no communication from the foreman overseeing the removal of the formwork and
    [Carpenter NM]
    informing him that there was a hole that needed covered.

23. Superintendent
    [DR]
    told me that foreman
    [FT]
    should have been supervising
    [Carpenter NM].

24.
[Foreman FT]
told me that he was up at the silo at the time of
[Carpenter NM’s]
fall.

25. During the inspection, Respondent provided me with a copy of safety meeting notes. Exhibit 3 is an accurate copy of the October 19 meeting notes provided by Respondent. These notes state the use of a phone is prohibited except for a foreman or superintendent. 3

( Declaration , pp.
1-4)

LE GAL STANDARDS

Summary Judgment Standard

Under Rule 56( a ) of the Federal Rules of Civil Procedure “[a] party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.”
4
The Commission has held,

The requirements for granting summary judgment are well established: there must be no genuine dispute as to any material fact, and a party must be entitled to a judgment as a matter of law .
. . .
In reviewing a motion for summary judgment, a judge is not to decide factual disputes .
. . .
Rather, the role of the judge is to determine whether any such disputes exist .
. . .
When determining if there is a genuine factual dispute, the fact finder must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party .
. . .
Thus, not only must there be no genuine dispute as to the evidentiary facts, but there must also be no controversy as to the inferences to be drawn from them.

Ford Motor Co. -Buffalo Stamping Plant,
No. 10-1483 , 2011 WL 3923734, at *1
(OSHRC Aug. 30, 2011) ( internal
citations omitted).

The Secretary’s Burden of Proof Under § 5(a)(2)

In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.

Astra Pharm. Prod., Inc.,
No. 78-6247, 1981 WL 18810, at *4 (OSHRC July 30, 1981),

aff’d in pertinent part
681 F.2d 69 (1 st
Cir. 1982).

Here, the only element of the Secretary’s burden
at issue
is whether
the Secretary can prove
Harvestland
either knew or could have known of the violative condition with the exercise of reasonable diligence.

The Cited Standard

Section 1926.501(b)(4)( i ) provides:

Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.

THE CITATION

Item 1 of the Citation alleges:

29 CFR 1926.501(b)(4)( i ): Each employee on walking/working surfaces was not protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.

On or about
October
9, 2019, at the worksite located at 843 Lexington Road in Crawfordville, Georgia, workers working around unprotected floor holes were not protected from falling through them, exposing employees to a fall hazard of 38 feet to the floor below.

The Secretary proposes a penalty of $13,494 for Item 1.

ANALYSIS

As the moving party,
Harvestland
has the burden of identifying the parts of the record that show a genuine issue of material fact does not exist.

T he party moving for summary judgment bears the initial burden of “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”  Celotex Corp. v.
Catrett ,  477 U.S. 317, 323, 106
S.Ct . 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting
Fed.R.Civ.P . 56(c)). An issue of fact is “material” if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit.  Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 248, 106
S.Ct . 2505, 2510, 91 L.Ed.2d 202 (1986). It is “genuine” if the record taken
as a whole could
lead a rational trier of fact to find for the nonmoving party.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,  475 U.S. 574, 587, 106
S.Ct . 1348, 1356, 89 L.Ed.2d 538 (1986).

Tipton v.
Bergrohr
GMBH-Siegen , 965 F.2d 994, 998 (11th Cir. 199 2 ) . 5

Harvestland
Has Met Its Burden of Identifying the Parts
of the

Record Showing a Genuine
Issue of Material Fact Does Not Exist

Harvestland
argues
it is entitled to summary judgment because it did not know
C arpenter NM
was exposed to the hazard of
falling through
one of the floor openings on the upper level
of the feed mill
on October 9, 2019,
while not
using fall protection .
Harvestland
contends it had neither actual knowledge nor constructive knowledge of the violative condition.

[T] here are two ways that the Secretary can show knowledge. First, if the Secretary establishes that a supervisor had either actual or constructive knowledge of the violation, such knowledge is (in the typical case) imputed to the employer.
Or,
the Secretary can prove constructive employer knowledge based on the employer's inadequate safety program.

ComTran
Grp., Inc. v. U.S.
Sec’y
of Lab.,
722 F.3d 1304, 1311 (11th Cir. 2013) .

Actual kno wledge of the violative conduct is not at issue in this proceeding.
Harvestland
argues
the Secretary cannot show constructive knowledge of the violative condition because
Harvestland
had
a good
safety program
that
was
effectively communicated to its employees
and that required
the use of
fall protection for employees working at or above heights of
4
feet.
Carpenter NM was a well-regarded veteran employee
who , according to other
Harvestland
employees ,
always wore a safety harness and
attached
lanyard when
working
around
fall
hazards.
Carpenter NM attended the
weekly Monday morning safety meetings
Harvestland
held at its construction sites.
Harvestland
supervisors stressed the
company’s requirement to
use fall protection at heights of 4 feet or more
at the
safety meetings.

Harvestland’s
argument is supported by
the testimony of CSHO Munson in his deposition ( Munson Dep ., Tr.
19-20 ,
29, 31-33, 37-38, 42 ;
Exh .
3 ).
It is also supported by the
following “facts not in dispute” from
Harvestland’s
Motion , to which the Secretary agreed ( Response,
pp.
6-7):

9.
[Carpenter NM]
had been observed on a regular basis properly utilizing fall protection.

. . .

12.
Harvestland
had records of disciplinary actions that were taken in the past for violating safety rules to include fall protection infractions; however, the most recent disciplinary action was dated in 2012 and there had been no documented disciplinary action for the current worksite .
. . .
However, the employees understood that if they violate a safety rule, they would be disciplined.

13. All
    Harvestland
    workers are required to use fall protection when working 4 feet or more above ground level.

14.
[Carpenter NM]
was current on his training and had never received any disciplinary actions against him
in the course of
his five years of employment with
Harvestland .

. . .

16.
Harvestland
hired an outside consultant to conduct monthly safety inspections.

( Motion , pp.
3-6). 6

The Secretary Has Failed to Establish a Genuine
Dispute
of Material Fact Exists

The Secretary
counter s
that
a
genuine
dispute
of material fact exists
with regard to
the adequacy of the fall protection equipment found
unused
on the upper level of the feed
mill
and with regard to the supervision of Carpenter NM.

Adequacy of the Strap Used as a Fall Protection Lifeline

CSHO
Munson
stated there were nicks and
tears in the strap
tied to the machine section
for use as a vertical lifeline
and that
it was missing a clevis .
The strap is visible in
the photograph designated as
Exhibit 2
of
Munson’s deposition.
The Secretary
argues the damage to the strap
is a violation
of § 1926. 502(d)(21) ,
which requires defective personal fall arrest equipment to be removed from service, and
is, by extension, a violation of the cited standard because it was in plain view and
Harvestland’s
supervisors had constructive knowledge of its condition.

The Secretary reached this conclusion based on the following logic:

Subpart M of the construction standards is
titled
Fall Protection.
Section 1926.500(a)(1)
( Scope and application )
of Subpart M
provides, “This subpart sets forth requirements and criteria for fall protection in construction workplaces covered under 29 CFR part 1926.”

Section 1926.501(a)(1)
( Duty to have fall protection )
provides, “This section sets forth requirements for employers to provide fall protection systems. All fall protection required by this section shall conform to the criteria set forth in 1926.502 of this
subpart .”

Section 1926.502(a)(1)
( Fall protection systems criteria and practices ) , “Fall protection systems required by this part shall comply with the applicable provisions of this section.” Section 1926.502(d)(21) of th e
section provides, “Personal fall arrest systems shall be inspected prior to each use for wear, damage and other deterioration, and defective components shall be removed from service.”

Based on the quoted standard sections, the Secretary
argues the strap
located
on the upper level
was
defective and should have been removed from service. Because it was not,
Harvestland
was in violation of the cited standard, § 1926.501(b)(4)( i ) (“Each employee on walking/working surfaces shall be protected from falling through holes . . . more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems[.]”), despite the fact Carpenter NM was not
wearing a safety harness and was not
tied off to the strap when he fell through the opening. “Regardless of [Carpenter NM’s] usage of Respondent’s existing fall protection, the parties dispute whether Respondent’s onsite fall protection was in adequate condition to ensure worker safety.”
(Response , p. 10)   

The Secretary’s argument is that, because
Harvestland
violated § 1926.502(d)(21) (by failing to inspect and remove the defective
strap
from service),
it was also in violation of § 1926.502(b)(4)( i ). The material fact in dispute, the Secretary claims, is whether the
strap
was defective.

The Court disagrees. While it is true
Harvestland
disputes t he Secretary’s appraisal of the condition of the
strap , the Secretary has failed to demonstrate the fact of the
strap ’s condition is material to the cited standard.
“ An issue of fact is
‘ material ’
if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit. ”   Anderson v. Liberty Lobby, Inc.,  477 U.S.
at
248 . Here, the condition of the
strap
is immaterial to the knowledge element of the Secretary’s burden of proof for the cited standard, which
requires the
Secretary to
establish that
Harvestland
knew or could have known Carpenter NM was not protected from falling through floor openings on the upper level of the feed mill on October 9, 2019.

The evidence regarding the condition of the
strap
that the Secretary cites would be material to an alleged violation of §
1926.502(d)(21), which addresses the inspection and removal of defective fall protection equipment.
The Secretary could have cited
Harvestland
for a violation of that standard, but chose not to. 7
Instead,
the
alleged violation description
(AVD)
of the
Citation
states , “ On or about 9, 2019, at the worksite located at 843 Lexington Road in Crawfordville, Georgia, workers working around unprotected floor holes were not protected from falling through them, exposing employees to a fall hazard of 38 feet to the floor below .”
The AVD says nothing about
a defective strap. It does not even specify that the
fall protection measure at issue is a personal fall arrest system, rather than guardrails or
covers.

The evidence required to establish
a
violation of § 1926.501(b)(4)( i )
differs from the evidence required to establish a violation of § 1926. 502(d)(21) —one addresses the failure to provide fall protection and, the other involves
the failure to remove defective fall protection
equipment .
Under the Secretary’s theory, any violation of
§ 1926. 502, which mandates the
extensive
criteria
for guardrail
systems ;
safety nets ;
personal fall arrest systems ;
safety monitoring systems ;
covers ;
and
protection from falling objects,
would also
violate § 1926.501(b)(4)( i ).

The fallacy of the Secretary’s position is demonstrated by the case he cites i n support of his argument ,
an
unreviewed
administrative law judge decision . 8
The Secretary states,

Merely having fall protection is not sufficient to ensure worker safety if the fall protection itself is faulty.
Payton Roofing,
[Nos. 16-1161 & 16-1162, 2017 WL 8218884 (OSHRC Oct. 30, 2017)] (upholding citation against employer where workers wore personal fall arrest systems that were faulty because they were improperly attached).

( Response ,
p . 9)

The Secretary
implies the
affirmed
item
addressing improperly attached
personal fall arrest system
equipment
cites the standard at issue here,
§ 1926.501(b) (4)( i ) .
Although that standard is cited, it is one of three fall protection standards at issue in the case , and its affirmation has nothing to do with
faulty fall arrest system equipment.

In
Payton Roofing , the CSHO observed
several
employees
exposed to fall hazards while
working
on top of a roof without fall protection.

CO Rodgers testified that during his investigation seven employees were on the roof
. . .
working around the large hole without wearing any fall protection.  The photograph at Ex. 33 shows five of the seven employees pictured on the roof
not wearing any personal fall arrest systems .
. . .
Two other employees
. . .
were also observed near the “hole” at Ex. 28, at “A”, using personal fall arrest systems. But the use of such systems was faulty because they had improperly attached their two lifelines to a single anchorage.

Id.
at *8
(emphasis added) .

The administrative law judge affirmed the citation for violation of § 1926.501(b)(4)( i ) based on Payton Roofing’s knowledge of the employees who were not wearing any fall protection.

With regards to knowledge, CO Rodgers testified that Supervisor Brown had been on the roof while employees moved debris near the large hole. CO Rodgers testified that Mr. Brown admitted that the “workers worked around the holes” for the past two days, “ without any form of fall protection .” Mr. Brown also told CO Rodgers that both he (Mr. Brown) and Mr. Rodriguez had observed Respondent's employees on the roof working around and
in close proximity to
the holes
without any means of fall protection.
The larger hole was approximately 16 feet by 8 feet meaning it was large enough where Mr. Brown should have been aware of the hazard it presented. Knowledge has been established.

Id.
at *9
(emphasis added) .

The citation
item
for the violation of § 1926.501(b)(4)( i ) was affirmed, based not on the two employees using faulty personal
f all arrest systems, but on the employees
who worked “without any form of fall protection.” The two employees using the faulty equipment were the basis for the administrative law judge affirming a different citation item, for the violation of § 1926.502(d)(15) (“Anchorages used for attachment of personal fall arrest equipment shall be independent of any anchorage being used to support or suspend platforms and capable of supporting at least 5,000 pounds (22.2
kN ) per employee attached[.]”).
The administrative law judge affirmed a third citation item alleging a violation of
the standard the Secretary considers the underlying violation in this proceeding,
§ 1926.502(d)(21) ,
because Payton Roofing failed to inspect and remove a defective lifeline from the worksite.

Payton Roofing
does not support the Secretary’s argument that § 1926.501(b)(4)( i ) is applicable to the use of faulty
fall protection
equipment . While it is not precedential, the decision provides persuasive support for the argument that proof of a violation of § 1926.502(d)(21)
is separate
and distinct from
proof of a violation of § 1926.501(b)(4)( i ).
The Secretary has not provide d
the Court with any Commission or administrative law judge decision that support s
his theory that failure to remove defective fall protection equipment supports finding a violation of the standard cited in this proceeding.

Under the legal standard for summary judgment, the Court must “ resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. ”
Ford Motor Co. -Buffalo Stamping Plant,
2011 WL 3923734, at *1. Applying this standard, the Court finds
it is a reasonable inference that
the
strap
at issue was defective, based on the photographs and CSHO Munson’s testimony that he observed nicks and tears on it. The Court
concludes, however, that the condition of the
strap
is immaterial to the issue of whether
Harvestland
knew of Carpenter NM’s failure to use any form of fall protection on the afternoon of October 9, 2019, while he was on the upper level of the feed mill.

Supervision of Carpenter NM

The Secretary also argues the lack of supervision of Carpenter NM on October 9, 2019, raises a genuine issue of material fact
regarding reasonable diligence.
H e
bases
this argument on the following
four
contentions:

1. “ In spite of Respondent’s claims that it inspected the worksite and fall protection regula rly, Respondent did not document its inspections.” ( Response , p. 11)

2.
“ [DR],
the superintendent, stated that
[Carpenter NM]
typically wore a harness and should have had on a harness on the date of the incident .
. . .
DR
stated,
‘ Whenever employees work in elevated areas, they are supposed to go with another person . . . [but] I don’t know why [ Carpenter NM ] went up by himself or why he had to cover the holes by himself. The foreman was supposed to know who was working with him.”
. . .
Nonetheless, as Respondent admits,
[Carpenter NM]
was the only worker assigned to cover 13 open floor coverings and worked alone.
. .
Because
[Carpenter NM]
was alone, no one witnessed his fall. ”
( Response , pp. 12-13)

3.
“[FT] , the site foreman, recognized that it was his responsibility to check employees, watch them work, and ensure that work is performed safely and properly .
. . .
Site Superintendent
[DR]
stated that it was
[FT’s]
job to supervise
[Carpenter
NM] . . .
.
However, Foreman
[FT]
did not have knowledge of
[Carpenter NM’ s]
whereabouts or duties on the date of the incident, stating that he believed the Superintendent directed
[Carpenter NM ’s ]
work instructions .
. . .
Both
[DR] and [FT]
failed to supervise their workers to ensure adequate adherence to Respondent’s fall protection measures . ”
( Response , pp. 12-13)

4.
“ Finally, on the day of the incident, at least one other worker observed
[Carpenter NM] hav ing a
‘ heated argument ’
on his cell phone while working on the second level to cover holes .
. . .
As part of its safety program, Respondent had a policy against workers using mobile devices while working .
. . .
Despite
[Carpenter
NM’s ]
heated phone conversation, and presumably loud speaking, Respondent made no attempts to prevent him from continuing work while on the phone. ” ( Response , p. 13)

Th e Secretary’s contentions in the first three statements
do not establish facts material
to
Harvestland’s
constructive knowledge of the violative condition.
None of these
contentions demonstrates
Harvestland’s
safety program was
inadequate
or its supervision was deficient.
Nothing in OSHA’s fall protection standards requires
the employer to document worksite inspections. Nor do the standards require
constant supervision of employees .
In his witness statement,
Superintendent
DR stated that Carpenter NM “was an experienced employee and knew that once the holes were
opened,
he had to cover them. No one had to tell him that, he
would do it once he noticed the holes
being opened.” ( Exh . 1, Bates p. 215 )
Harvestland
was not obligated to supervise
Carpenter NM continuously. The Commission has rejected
such oversight
in a case involving fall protection.

The Secretary argues that Stahl should have provided more supervision, but
[he]
failed to specify how much would be necessary to assure compliance, what additional measures Stahl should have taken, or how Stahl's supervision was insufficient.  See Trinity Marine Nashville, Inc. , 19 BNA OSHC 1015, 1017, 2000 CCH OSHD ¶ 32,158, p. 48,527 (No. 98-144, 2000),  rev'd
on other grounds , 275 F.3d 423 (5th Cir. 2002).

The thrust of the Secretary's argument seems to be that the very fact the violations occurred proves Stahl's supervision was inadequate. However, 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.”  Texas A.C.A., Inc. , 17 BNA OSHC 1048, 1051, 1993-95 CCH OSHD ¶ 30653, p. 42,527 (No. 91-3467, 1995) (emphasis in original). “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.”  Dover Elevator Co. , 16 BNA 1281, 1287, 1993-95 CCH OSHD ¶ 30,148, p. 41,480 (No. 91-862, 1993).

Stahl Roofing, Inc.,
Nos. 00-1268 & 00-1637,
2003 WL 440801, at *3 (OSHRC
Feb. 21, 2003) .

Here, the re is no evidence
Harvestland
should have perceived a need for additional monitoring for an experienced employee
performing a routine assignment.
As in
Stahl , the Secretary ’s argument appears to be that Carpenter NM’s failure to use the available fall pr otection equipment proves
Harvestland’s
supervision was inadequate.
Stahl
demonstrates
reasonably diligent
inspection
measures
are not inadequate
merely
because they failed
to detect every instance of a fall hazard.

As for the Secretary’s fourth
contention , it misstates
the testimony of
t he
CSHO. The Secretary
claims Carpenter NM was “ on his cell phone while working on the second level to cover holes .” ( Response , p. 13).
CSHO Munson
did not testify, however, that
an employee or
employees heard Carpenter NM talking on his cell phone while he was working on the upper level.
CSHO Munson does not
say
where Carpenter NM was at the time of his conversation , but he states Carpenter NM was working on the lower level
before the afternoon break. Th is is the
relevant testimony :

Q. : [ P] rior
to the
[afternoon]
break,
did you ascertain where
[Carpenter NM]
was working in relation to the construction site?

CSHO
Munson :
He was working in what they call the pit area building forms for what they call housekeeping
pads, which machinery sits on which allows for easier clean-up. And that was located directly under the area where he fell from.

Q. : S o,
to the best of your ability, what you can determine is that the employees took an afternoon break -- a 15-minute break around the three o'clock hour.
You
don't
know precisely. And then shortly after that,
[Carpenter NM]
fell from
the floor hole; correct?

CSHO Munson: Yes, sir.

. . .

Q. : Did anybody say anything about
[Carpenter NM]
having
an argument with his wife during that day?

CSHO Munson: There was a statement to such.
Yes.

Q. : Tell me what you ascertained about that, his argument with his wife.

CSHO Munson: There was -- somebody stated that -- I
can't
recall who, that there was -- he is on the phone, which seemed to be a heated argument with somebody on the phone. The details could not be confirmed.

( Munson Dep. , Tr. 24-25)

There is no indication that Carpenter NM was on the upper level while talking on his cell phone or that a supervisor overheard the conversation.
T he Court
is required to
resolve
ambiguities
and draw reasonable inferences
in favor of the nonmoving party
when considering a summary judgment motion,
but
there must be some
evidentiary basis for the resolution s and inferences .

Although we draw justifiable inferences in the non-moving party's favor,
“ unsupported speculation does not meet a party's burden of producing some defense to a summary judgment motion ”
because it
“ does not create a  genuine  issue of fact.”  Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005) (cleaned up). Speculation instead
“ creates a false issue, the demolition of which is a primary goal of summary judgment. ”   Id .  (quotation marks omitted).

Olbek
v. City of Wildwood, FL,
No. 20-13075, 2021 WL 1245276, at *5 (11th Cir. Apr. 5, 2021)
(unpublished).

The Secretary’s contention
that
Carpenter NM was
working
on the upper level while he
talked on his cell phone is unsupported speculation.
It does not
create a genuine issue of disputed fact.

The Secretary’s arguments regarding the purported inadequacy of
Harvestland’s
safety program due to improper supervision
are without merit.
The Secretary
has failed to
establish a genuine dispute of a material fact exists
with regard to
constructive knowledge
and reasonable diligence.

Disputed Facts

In his
Response,
the Secretary disputed
seven of the twenty-two
“undisputed facts”
Harvestland
set out in its
Motion.
The Court
generally
has addressed
t hese issues
in this decision. None of the disputed facts
are material to this proceeding.
The Court
briefly addresses the Secretary’s specific
arguments here.
Harvestland’s
initial statement is set out, followed by the Secretary’s response.

8. Fall protection was available for
   [Carpenter NM’s]
   use: in fact, two full-body harnesses with attachments were observed on the work level ready for use.

Response : Disputed. Although fall protection was available for use, the Secretary disputes whether the fall protection was adequate, given the lack of a clevis and the condition of the available fall protection.

( Response , p. 5)

As discussed previously,
the purportedly damaged condition of the strap
is not material to the
legal element of constructive knowledge of the violation of § 1926.501(b)( 4)( i ).

10.
Harvestland
provides fall protection training for all employees along with other types of safety training in accordance with the work performed. When the employees worked at heights, every Monday, all the employees would have a meeting and go over safety issues including the use of fall protection.
[Carpenter NM]
signed the roster for those Monday meetings.

Response : Disputed. Foreman
[FT] t old CSHO Munson that he had not received fall protection training while working for this employer.

( Response , p.
6 )

In his
written statement, Foreman FT states,
“At other places
I have received training about fall protection but not here right now. Every Monday we have a meeting where they remind us that we need to check our tools, the areas we are going to work in
and
to wear protection if we are working over four feet.”
( Exh . 1, Bates p. 211)

Foreman FT was aware o f
Harvestland’s
requirement that employees working
near fall hazards 4 feet or higher were required to use fall protection.
He had received fall protection training in the past. Nothing in
his statement
demonstrates a material fact is in genuine dispute.

11.
Harvestland
had a fully adequate written fall protection program.

Response :
Disputed. Foreman
[FT]
told CSHO Munson that he had not received fall protection training while working for this employer .
. . .
The
Secretary disputes the adequacy of
Harvetland’s
fall protection, including the condition of its equipment and the enforcement of its policies, as evidenced by
[Carpenter NM’s]
working by himself while speaking on the telephone.

( Response , p. 6)

As previously noted,
Foreman FT was aware of the requirement to use fall protection, and there is no evidence Carpenter NM was working while he was speaking on his cell phone.

15.
Harvestland’s
superintendent and foremen inspected the worksite multiple times each day, reviewing the work of the employees to ensure they were working safely but did not document those inspections.

Response : Disputed. The Secretary disputes whether
Harvestland’s
superintendent and foremen inspected the level on which
[Carpenter NM]
was assigned to work and whether their visits were adequate to ensure safety.

( Response , p.
7 )

The Secretary’s response
do es not
refute
Harvestland’s
statement , which
describes its supervisors’ regular inspection routine. This is borne
out by the written statement
of an employee
who stated his supervisor “comes around three or four times a day . ” ( Munson dep. , p. 37)

17. Employees understood they would be sent home if they did not work safely.

Response : Disputed. One non-management employee told OSHA that “there are some employees who won’t wear fall protection.”

( Response , p. 7)

In his
Declaration , signed
February 19, 2021, CSHO Munson
avers,
“I learned from non-management employees that ‘ther e are some employees that won’t wear fall protection.’”
( Declaration , ¶ 14). 9

T his statement in his
Declaration
is at odds with CSHO Munson’s deposition testimony, taken
four months earlier. There,
when asked, “[D] id
you ever determine there was another example at this worksite where employees were not
using their fall protection correctly?”,
CSHO responded, “No.” ( Munson dep. , p.
27)

Generally,
when considering a summary judgment motion, the Court is requ ired to resolve all ambiguities and draw all reasonable references in favor of the nonmoving party.
An exception
exists
in some circuits
to this legal standard
when a
witness’s subsequent affidavit
contradicts his or her
previous
deposition testimony.
T he
Eighth Circuit (where
Harvestland’s
principal office is located) and the Eleventh Circuit (where the
fatality occurred)
observe this exception .
The parties may seek review in either of those
circuits, so the Court will apply the exception here.

The Court of Appeals for the Eighth Circuit
explains the rationale for the exception.

In  Camfield
[ Tires , Inc . v. Michelin Tire Corp.,
719 F.2d 1361, 1363 (8 th
Cir.
1983)],
we addressed  “the troublesome issue of whether summary judgment may be granted when one of the parties after giving a deposition later files an affidavit with directly contrary statements.”   Id.  In affirming the district court's grant of summary judgment for the defendant, this court held that an affidavit filed by the plaintiff in opposition to a motion for summary judgment that directly contradicted the plaintiff's previous deposition testimony was insufficient to create a genuine issue of material fact under Rule 56.  Id.  at 1365.  We stated:

The very purpose of summary judgment under Rule 56 is to prevent  “the assertion of unfounded claims or the interposition of specious denials or sham defenses ....”  10 C. Wright, A. Miller & M. Kane,  Federal Practice and Procedure  § 2712 (1983). If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.

Id.  We emphasized that while summary judgment  “is to be reserved for those cases in which there is no genuine material issue of fact for determination,”  if  “testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.”   Id.  No party should be allowed to create “issues of credibility” by contradicting his own previous testimony.  Id.  at 1366.

City of St. Joseph, Mo. v. Sw. Bell Tel.,
439 F.3d 468, 475–76 (8th Cir. 2006) .

The Court of Appeals for the Eleventh
Circuit agrees :
“ When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony. ”
Van T.
Junkins
& Assocs., Inc. v. U.S. Indus., Inc.,
736 F.2d 656, 657 (11th Cir. 1984) .

Based on th e precedent
of the Eighth and Eleventh Circuits ,
the Court credits CSHO Munson’s testimony in his deposition that he kn ew
of no
instance ,
other than
Carpenter NM’s fall,
where a
Harvestland
employee did not use proper fall protection
at this worksite
( Munson’s dep. , Tr. 27).
The Court does not credit his
Declaration
s tatement asserting an employee told him, “ ‘There are some employees that won’t wear fall protection.” ( Declaration , ¶ 14).

19. For reasons unknown,
    [Carpenter NM]
    chose not to put on or connect the harness despite having done so regularly at this worksite and countless times during the five years of his employment, in full compliance with the company’s policies.

Response : The Secretary does not dispute that
[Carpenter NM]
was not wearing a harness at the time of his death. The Secretary objects to the remainder of this statement as speculative.

( Response , p. 7)

The Secretary is disputing a st atement that is based on its CSHO’s deposition testimony.

Q. :
Did you ascertain during the investigation whether
[Carpenter NM]
was observed when he was working at heights, normally wearing his harness and his lanyards attached properly?

CSHO Munson: Yes, sir.

Q. : So,
no employee or no manager had observed
[Carpenter NM]
working at heights without properly wearing his
f all protection before the incident; correct?

CSHO Munson: That is correct.

Q. : Did
[Foreman FT]
ever observe
[Carpenter NM]
not wearing his fall protection correctly?

CSHO Munson: No.

( Munson dep. ,
p. 29)

Q.· You also indicated, according to employees
and managers,
[Carpenter NM]
had been observed wearing fall protection while working
at heights days prior to the accident. True?

CSHO Munson: That is correct.

Q. : Also,
according to the employees and managers, he always wore his harness at heights; is that correct?

CSHO Munson: That is correct.

( Munson dep. , p. 31)

T he statement
that the Secretary characterizes as speculative
is
fully
supported
by CSHO Munson ’s testimony.

20. Not only did
    [Carpenter NM]
    apparently choose not to don and connect a harness; his hard hat was found carefully, and to all appearances intentionally, placed next to the floor opening through which he fell to his death.

Response : Disputed. The Secretary does not dispute that
[Carpenter NM’s]
hat was found next to the floor opening where he fell. Respondent presents no facts supporting that the hat was “carefully” or “intentionally” next to the floor opening.

( Response , p.
8)

The Court agrees with
the Secretary that
nothing
in the record supports
Harvestland’s
contention th at Carpenter NM’s hard hat “was found carefully, and to all appearances intentionally, placed next to the floor opening through which he fell [.]” 10
One might assume
an employee would better demonstrate
care and intentionality
if he placed the
hard hat right side up and next to a wall.
Instead, the
hard hat is upside down in the middle of the floor between two openings.
It is just as likely his hard hat fell off
as Carpenter NM stumbled or stepped through the opening. Regardless, the disputed statement is not material to
the issue of constructive knowledge.

CONCLUSION

Having reviewed the record and the parties ’ arguments, the Court finds there is no genuine dispute as to the evidentiary facts . Accordingly,
Harvestland’s
Motion for Summary Judgment
is
GRANTED.

SO
ORDERED.

/s/ _________

Sharon D. Calhoun

Dated: May 13,
2021                Administrative Law Judge, OSHRC

Atlanta, GA

"

1 The Court will address the disputed statements later in this decision.

2 The Secretary nominally disputes this statement but only to correct the position title of OSHA’s investigator:

The Secretary agrees that Matthew Munson is an experienced
compliance
safety and health officer (CSHO) employed by the Occupational Safety and Health
Administration (OSHA) and conducted the investigation of Mr. Maldonado’s death.

( Response , pp. 4-5) (italics added)

3
The date “October 19” appears to be a clerical error in CSHO Munson’s
Declaration.
The date of Carpenter NM’s death was October 9, 2019. The safety meeting notes state the meeting at issue occurred “Monday October 7, 2019.” ( Declaration ,
Exh . 3

4
Commissi on Rule 40(j) provides , “T he provisions of Federal Rule of Civil Procedure 56 apply to motions for summary judgment.” 29 C.F.R § 2200.40(j).

5 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here 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.’”
Dana Container, Inc.,
25 BNA OSHC 1776, 1828 n.10 (No. 09-1184, 2015),
aff’d , 847 F.3d 495 (7th Cir. 2017). This case arose in
Georgia , located in the
Eleventh
Circuit .
Harvestland’s
principal office
is located in
North Dakota, in the Eighth Circuit ( Complaint , ¶ III;
Answer,
¶ III).

6 The Commission has held the
factors to be considered for evaluating constructive knowledge are the same as for evaluating the affirmative defense of unpreventable employee misconduct (UEM).
Burford’s Trees , No. 07-1899, 2010 WL 151385, at * 4 (OSHRC Jan. 8, 2010). To establish t he defense, an employer must prove that it had: “(1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.”  Manganas
Painting Co. , No. 94-0588, 2007 WL 6113032, at *40 (OSHRC March 23, 2007).

Here, ¶¶ 9, 12, 13, 14, and 16 of the “facts not in dispute,” which the Secretary agrees he does not dispute, establish
Harvestland
did not have constructive knowledge of Carpenter NM’s failure to use fall protection on October 9, 2019.
Harvestland
had an established work rule designed to prevent the violative condition from occurring (¶ 13: “All
Harvestland
workers are required to use fall protection when working 4 feet or more above ground level.”); it adequately communicated the rule to its employees (¶ 9: “[Carpenter NM] had been observed on a regular basis properly utilizing fall protection[,]” and ¶ 14: “[Carpenter NM] was current on his training[,]”); it took steps to discover violations of the rule (¶ 16:
Harvestland
hired an outside consultant to conduct monthly safety inspections.”); and it effectively enforced the rule when violations were discovered (¶ 12: [T]he employees understood that if they violate a safety rule they would be disciplined.”).

7
It appears that § 1926.502(d)(21) would have been the more appropriate standard to cite, given the Secretary’s allegation that the strap, used as part of a personal fall protection system, was defective. A claim that a more specific standard applies to the cited condition is, however, an affirmative defense which
Harvestland
has not raised.

[R] egulatory  preemption pursuant to § 1910.5(c)(1) is an affirmative defense that must be pleaded in the respondent's answer.  See, e.g., Spirit
Aerosystems , 25 BNA OSHC 1093, 1097 n.7 (No. 10-1697, 2014) (“[P] reemption  by a more specifically applicable standard is an affirmative defense which the respondent must raise in its answer.”) (citations omitted);  see also Safeway Inc. v. OSHRC , 382 F.3d 1189, 1194 (10th Cir. 2004) (explaining that specific standards function as an affirmative defense under the general duty clause);  Brand Energy Solutions LLC , 25 BNA OSHC 1386, 1388 (No. 09-1048, 2015) (referring to preemption claim as an affirmative defense);  Vicon Corp. , 10 BNA OSHC 1153, 1157 (No. 78- 2923, 1981) (describing a claim that a general standard was preempted by a more specific standard as an affirmative defense),  aff'd , 691 F.2d 503 (8th Cir. 1982) (unpublished). The Commission's Rules of Procedure also require a respondent to raise any affirmative defense in the answer, or “as soon as practicable,” or risk being prohibited from raising the defense at a later stage in the proceeding. 29 C.F.R. § 2200.34(b)(4). “As soon as practicable” means that the issue is raised with enough time for the opposing party to meaningfully respond.  See Field & Assocs., Inc. , 19 BNA OSHC 1379, 1382 (No. 97-1585, 2001) (agreeing with judge that affirmative defense raised at hearing was not raised “as soon as practicable”).

Mansfield Indus., Inc.,
No. 17-1214, 2020 WL 8871368, at *3 (OSHRC
Dec. 31, 2020) .

8
“ See  Leone Constr. Co. , 3 BNA OSHC 1979, 1981 (No. 4090, 1976)
(unreviewed administrative law judge decision does not constitute binding precedent for the Commission).”
TNT Crane & Rigging, Inc. , No. 16-1587, 2020 WL 1657789, at *7 (OSHRC March 27, 2020).

9
This sentence is taken from a longer statement made by the employee. For context, the employee stated,

The supervisor comes around about three or four times a day. He [is] checking on if that work is going
good , to make sure you have your safety on. If there is something
wrong
they will stop us, fix it, then let us go back to work after it is fixed. We have a safety meeting every Monday morning. They go over what not to do, talk about what will happen to you if you
don’t
follow rules. I use fall protection. That said we are supposed to use fall protection. Listening and paying attention is the main key out here.
There are some that
won’t
use the fall protection .
No
I said that they tell you to wear fall protection I said the reason that accident happened was probably because he wasn’t using the fall protection at that time. If they see you violating any safety
stuff
they will send you home.

( Exh . 1, Bates pp. 219-20)
(emphasis added)

10
It is
Harvestland’s
theory that Carpenter NM deliberately stepped through the opening, possibly because he was upset about the heated phone
conversation
he is reported to have had earlier that day.

Q.: Do you have any evidence that shows that [Carpenter NM] did not commit suicide?

CSHO Munson: Um . . . I—I do not.

( Munson’s dep. , p. 58)

Nothing in the record indicates that Carpenter NM was talking to his wife on the phone ( Harvestland’s
counsel assumes Carpenter NM was talking to his wife, but CSHO Munson states he was overheard talking to “somebody”), that he remained upset after the phone call, or that he felt suicidal.