Elmer W. Davis, Inc.
Roofing fall-protection citation vacated for employee misconduct
Apply this to your situation
This order from 2023 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Elmer W. Davis assigned two employees to repair a low-slope commercial roof where a safety-monitoring system was permitted as the sole form of fall protection. OSHA observed both employees performing roofing work near an unprotected edge after the designated monitor stopped monitoring and joined the work. The judge found that the conduct violated the cited fall-protection requirement and that a foreman's knowledge established employer knowledge. The company nevertheless proved unforeseeable employee misconduct through a clear work rule, recent training, regular inspections, and consistent discipline that included suspensions for fall-protection violations. The citation was vacated, and the proposed $4,566 penalty was not assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.501(b)(10)
- Outcome: The serious citation was vacated based on the unforeseeable-employee-misconduct defense, and no penalty was assessed.
- Key point: A proven fall-protection violation may still be vacated when the employer shows an effective safety program and genuinely unforeseeable supervisory misconduct.
Full text (OSHRC public release)
Document
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
IN
SIMPLIFIED
PROCEEDINGS
UNDER
29
C.F.R. §
2200.200
et seq.
Complainant,
v.
D ocket No .
2 1-1021
ELMER W. DAVIS , INC.,
Respondent .
DECISION AND ORDER
APPEARANCES:
For the Complainant:
Jordan Laris Cohen, Esquire
Trial Attorney
U.S. Department of Labor
New York, New York
For the Respondent:
Mr.
Tim Crumb
Corporate Safety Director
Elmer W. Davis, Inc.
Rochester, New York
Michael Rubin, Esquire
Goldberg Segalla, LLP
Buffalo, New York
(Appearing
Post-Hearing
Only)
BEFORE: William S. Coleman
Administrative Law Judge
Elmer W. Davis, Inc. (EWD),
the
Respondent
herein,
is
a construction company
based in Rochester,
New York,
that
concentrates
on
commercial
roofing
projects.
On April 30, 2021,
EWD
assigned two employees to
repair
the
low-slope
roof
of a onestory commercial building in Rochester. The
roof
was about 15 feet above ground level, had
unprotected edges, and was less than 50 feet wide. Because of the roof’s narrow
width,
the fall protection standard for roofing work on low-slope roofs [29 C.F.R. § 1926.501(b)(10)] permitted
EWD to
use
a
safety monitoring system
alone
for fall protection.
While
driving
to another destination, an on-duty
Compliance Safety and Health Officer (CO) from the U.S.
Occupational Safety and Health Administration (OSHA)
noticed
the two
EWD
employees on the roof. They
appeared to him to be working without
fall protection. The CO
stopped
driving
and
observed and photographed the
employees for
about
ten minutes. (Joint Pre-Hr’g
Statement at 5). The CO then
alerted them
to his
presence,
and
at his request
they
descended
from
the roof. A
formal
OSHA inspection and investigation ensued.
About four months later, on September 1, 2021,
OSHA issued
to EWD
a
Citation
and Notification of Penalty (Citation)
that alleged
one
serious
violation of
29 C.F.R. § 1926.501(b)(1), which
provides that employees “on a
walking/working surface … with an unprotected side or edge which is 6 feet
…
or more above a lower level
shall
be protected from falling
by the use of guardrail systems,
safety net systems, or personal fall arrest systems.” The
alleged violation description (AVD) set forth in the
Citation
stated:
On or about 04/30/2021, at [worksite address],
the employer did not enforce the use of fall protection, for employees engaged in roof work repairing and installing roof seams.
Employees were exposed to falling 15 feet to lower levels, while working near the roof edge with no fall protection.
The
Citation proposed a
penalty
of
$4,566
for the sole alleged violation.
EWD
timely
contested
the
alleged violation
and proposed
penalty
and thereby brought
the matter before the
independent
Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act (Act).
29 U.S.C. § 659(c).
The
matter
was
then
assigned
to the undersigned
for hearing and decision
under the Commission’s rules for Simplified Proceedings. 1
See
29 C.F.R. §§ 2200.200–211.
Prior to the hearing,
and with
EWD’s
consent, the Secretary amended
the
alleged violation
to
change the
cited
standard
from subparagraph (b)(1) to subparagraph (b)(10)
of § 1926.501, which
prescribes
permissible
fall protection
systems and practices
for
“roofing work on
lowslope roofs.” The amendment
did not
alter
the original
AVD,
quoted above. 2
The
evidentiary
hearing was conducted
via videoconferencing technology
on
March 30 to April 1, 2022.
EWD
was
self-represented
at the hearing (and
also
in all
pre-hearing proceedings)
through
its
Corporate
Safety Director, Mr. Tim Crumb. Mr. Crumb also
testified at the hearing
in
EWD’s case-in-chief.
After the
evidentiary record for the hearing
had
closed, Attorney Michael Rubin entered an appearance for EWD. Since
entering that appearance, Attorney Rubin
has
served as
EWD’s
lead
representative,
filing
(1)
a post-hearing motion for production of documents,
(2)
a post-hearing motion to dismiss
the amended citation, and
(3)
a
post-hearing brief.
Posthearing briefing
was completed on
July 13, 2022. The principal issues for decision are as follows:
· Did the Secretary prove by a preponderance of the evidence that
an
EWD
employee
working on the low-slope roof
was not protected by
a compliant
safety monitoring system
because
the
designated
safety monitor engaged
in activities that could take his attention from the safety monitoring function?
Decision :
Yes. The Secretary proved the alleged violation of
§ 1926.501(b)(10).
· Did
EWD
prove by a preponderance of the evidence
that
the safety monitor’s violative conduct constituted
unforeseeable
employee misconduct?
Decision :
Yes.
EWD proved the affirmative defense
of unforeseeable
employee misconduct.
With the affirmative defense of unforeseeable
employee misconduct
having been proven,
the
sole alleged violation
is vacated.
FINDINGS OF FACT
Except where the following findings indicate that the evidence was insufficient to establish a certain fact or
indicates that there was no
evidence bearing on a matter of fact, the following facts were established by at least a preponderance of the evidence:
- Elmer W. Davis, Inc. (EWD),
is a
commercial
roofing
contractor
based in Rochester, New York, that employs
approximately
150
to
300 persons, with the precise number varying seasonally. (Ex. R-11 at 2;
Ex. CR3 at 2;
Tr. 12-15).
EWD
does roofing work
in
both
New York
and
Pennsylvania. (Tr. 12). EWD uses
materials
that
originate from outside
the state of
New York. (Tr.
12,
285-87).
- EWD
employs employees and
is engaged in
a
business
affecting
interstate
commerce. (Tr. 12-15).
EWD ’s
Fall Protection Safety Program
Work Rule s
on Use of
Safety Monitor ing Systems
- EWD has
adopted
work rules
on
the
use of
a
safety monitoring system
for
fall
protection. One of those rules
requires that
safety monitors
engage only in
monitoring
actions. (Tr. 159-60, 164-68, 220-21, 250-51, 273). A
designated
safety monitor who
complies with this
work rule
would not
engage
in any action or activity that could take the monitor’s attention from the monitoring function.
EWD
Communication of Work Rules
on
Use of
Safety Monitor ing System s
-
EWD has
adopted
a
comprehensive
written Corporate Safety Program
that includes
provisions
that
address the use of safety monitoring systems
for fall protection. (Tr. 224-25; Ex. R-1 at 69). All employees
receive training on
the
Corporate
Safety
Program
during
newemployee orientation. (Tr. 222-25; Ex. R-1 at 69). -
EWD provides group
safety
training
annually
to
all employees. One of
the subjects covered
in this training
is the use of safety monitoring systems. (Tr. 222-23). In addition to this annual
safety
training
event,
employees
who work at heights
receive
regular
toolbox talks and other on-the-job training on fall protection. (Tr. 223). -
The
employees
who have been
trained and instructed
on EWD’s work rules
for using
a
safety monitoring system
understand
those
rules,
and
they
know
when
and how
to
correctly implement
those rules. (Tr. 139-50, 162-64, 167; Ex. C-R-3;
Ex.
R-12 at 5:26–5:31, 5:45–5:58, 41:05–41:11, 41:34–41:38). -
EWD effectively communicates
its work rules for use of safety monitoring systems
to employees
who
may
use
that system of
fall protection.
EWD
Measures
for
Discover ing
Fall Protection Violations
-
EWD
designates a foreman for every
work crew. The designated foreman’s
responsibilities include enforcing safety rules. (Tr. 129-30, 134, 242). -
Since
at least
2013,
EWD’s corporate
safety
director
has
regularly visited
EWD’s worksites
to
inspect
for compliance with
safety rules. (Tr. 136, 225). In addition to
the
safety director’s inspections, at least one
other
EWD
safety professional
regularly
inspects
EWD worksites
for compliance with safety rules. (Tr. 131, 226; Ex. R-7; Ex. R-12 at 9:50–10:09). The
EWD safety professionals
can
determine where any
crew is located at any given time
by utilizing Global Positioning System technology. (Ex. R-12, 19:00–19:35). -
EWD
sometimes
hires
outside
safety consultants to conduct unannounced
safety
inspections. (Tr. 225-26).
EWD’s insurance carriers
sometimes
conduct unannounced inspections of its worksites. (Tr. 225-26).
- EWD
exercises
reasonable diligence
to discover
violations of its
fall protection
rules.
EWD
Enforcement of Fall Protection Rules
- EWD
has
adopted and
implemented
a
written
policy
for the imposition of progressive discipline for violations of its safety rules. Under that policy, the
prescribed
sanction for an employee’s firsttime
violation
of
most
safety rules
is an oral warning. However,
an employee’s
firsttime
violation
for the failure to
properly
use
fall protection carries
the more severe sanction of
either (a)
a one-week suspension,
or (b) at the option of the disciplined employee,
completing
an OSHAapproved training course on the
employee’s
own time.
(Tr. 230-31; Ex. R-1, at 33-34; Ex. R-7).
-
In the five years preceding the issuance of the
Citation here,
EWD
regularly
imposed
progressive discipline
against
employees
who
had
violated
fall protection
rules, including
imposing
prescribed
disciplinary sanctions
on
supervisory
and
non-supervisory
employees
for
violating
rules
on the use of
safety monitoring
systems. (Tr. 14445, 157, 176, 23135; Ex. R6;
Ex.
R7 at
13, 5, 12, 18, 28, 31, 32). -
EWD
effectively enforces
its
fall protection
work rules
by imposing progressive discipline on employees, both supervisory and non-supervisory,
who are discovered to have violated those work rules, including violations of its rules respecting the use of safety monitoring systems.
Events Preceding the Issuance of the Citation
The
Employee s and the
Works ite
-
On April 30, 2021,
EWD
sent two employees,
Messrs.
Ory Leach and Cody Pritt, to
repair seams
on the
low-slope
roof of a
one-story
commercial building
in Rochester, New York. -
Leach and Pritt
are both longtime EWD employees with many years of experience utilizing fall protection measures. Leach
has been employed by EWD
since 2007
and has worked as
a roofer for 25 years. (Tr. 123). Pritt
has been
doing roofing work for
EWD
since 2011. (Tr. 154). -
EWD
employs both Leach
and
Pritt in the position of
“service foreman.”
Typically,
EWD’s
service foremen
have supervisory responsibility over
the work crew to which
the foreman is
assigned. (Tr. 124, 305).
Here, however,
because Leach had seniority
over
Pritt,
Leach
was the designated
foreman
of the twoperson crew. (Tr. 75, 124, 129, 134, 155, 194, 242-43; Ex. R-1 at 28).
- The roof to be repaired was
rectangular and
not more
than 50 feet wide,
and its slope
was less than 4 in 12
(vertical to horizontal). The roof’s
edges were
unprotected,
and
three of its four sides
were
about
15 feet above the next lower level (which was
ground
level). (Tr.
12-13,
38-39, 123-24, 129, 154-55; Exs. C-1 to
C-5; Ex. R-11 at 15).
The
Workers ’ Activities
at the Worksite
- Upon arrival
at the worksite, the
employees
inspected the roof
and
confirmed
that the roof’s configuration was such that EWD’s work rules allowed them to
use a safety monitoring
system
alone for
fall protection.
They decided to implement a safety monitoring system alone for the
roof
repair. (Tr.
12-13,
167, 236-39; Ex. R-5).
-
The employees did not undertake to utilize
any other form of fall protection during the roof repair
other than a safety monitoring system. Specifically, the employees did not undertake to utilize a
guardrail
system, safety
net system, personal fall arrest system,
warning line system, or any
permissible
combination of fall protection systems, to provide fall protection during the roof repair. (Tr.
12-13,
167, 236-39; Ex. R-5). -
In his role of crew foreman,
Leach
decided
he would act as the safety monitor for Pritt while Pritt performed the repair.
(Tr. 124, 155, 158-59).
- The employees
gathered the
necessary
materials
to repair the roof seam,
and
they
mounted the roof to perform the repair. (Tr. 123-24, 154).
Pritt
described the roof repair to entail
“stripping in seams,
applying cement fabric to the seams to make them watertight.”
That work
involved
“scooping cement from [a] pail onto the roof, spreading with a trowel, embedding the fabric, and recoating with another layer of cement.” (Tr. 155).
Pritt
started
repairing the roof
by
“roofing, flashing, and cementing
some areas”
while
Leach
monitored him
doing this roofing
work. (Tr. 124).
-
By the time the CO had made his presence known to the employees,
Leach and Pritt
had been on the roof
for
about 20
to
30
minutes. (Tr.
124,
143-44, 155, 178-79). -
EWD’s
work rules for safety monitoring
prohibited
Leach from engaging in any roofing work while
he was
acting
as safety monitor for
Pritt. (Tr. 151, 165, 232, 251, 273; Ex. R6). Leach knew that EWD’s work rules prohibited him from engaging in any activity
other than monitoring
while
he
acted
as a safety monitor. (Tr. 125-26, 138-39, 151, 192, 226-30; Ex. R-2;
Ex.
R-6;
Ex.
R-12 at 41:05–41:38). -
At some point while Pritt did the roofing work,
Leach
began holding a
hand
trowel
Pritt
had been using. Leach’s action of simply
holding
the
trowel
violated
EWD’s
work rule
that safety monitors
engage in no activity other than
monitoring. (Tr. 151, 165, 232, 251, 273;
Ex. C-5;
Ex.
R-6). -
While acting as safety monitor
and holding the hand trowel
while Pritt did the roof repair,
Leach
started
to do some
roofing
work
himself;
he used the
hand trowel
multiple times
to scoop cement
from a
fivegallon bucket and
then
deposit
it onto
the roof surface. This roofing work
that Leach
performed
while he was also
acting as safety monitor
for Pritt
reasonably
could have taken
Leach’s attention from his monitoring function. (Ex. C1 to
C5; Ex.
C-R-3,
Ex.
R-6;
Ex.
R-12 at 5:45–5:58, 41:34–41:38).
Pritt was aware that Leach was performing roofing work that could take Leach’s attention from the monitoring function. (Ex. R-12, 4:35–6:25 & 10:58–11:07; Ex. R-6).
OSHA
Inspection
and Investigation
- While
the two
EWD
employees were on the
roof, OSHA CO Wilson Soto
drove by and noticed them.
It
appeared to
the CO
that both
were working
near the roof’s
unprotected edge
without using any fall protection. (Tr. 32-33).
-
The
CO
stopped
driving
and
he
began to observe
and photograph
the employees. (Tr. 33-34, 420; Exs. C-1 through C-9).
The photograph at
Exhibit C-1
fairly and accurately
depicts
the following:
Leach
is
standing near
an
unprotected edge
that is fifteen feet above ground level
with his back to the edge;
Leach is
facing away from Pritt
and
the hood of his sweatshirt
is
pulled fully over his head, limiting
his peripheral vision; Leach
is
stooped
over
at the waist
and
facing down
at the roof’s surface while
holding a
hand trowel
just
a few inches
above
the opening of a
five-gallon bucket
that is
immediately in front of him
at his feet. The photographs show the employees in different positions and postures on the rooftop. The
photographs
depict
a
rooftop
worksite about which
the
CO
reasonably
assessed
“there was no safety monitor.” (Tr. 35, 397-98;
Exs. C-1 thru C-9; Joint
Pre-Hr’g
Statement at 5). -
After observing
and photographing
the
EWD
employees
on the roof
for about
ten
minutes,
the
CO
identified himself
to them
as an OSHA
official
and
asked
them
to
come
down
from the roof, which they did. (Tr. 74, 116-17, 384;
Exs. C-11 & C-12;
Joint
Pre-Hr’g
Statement at 5). The
CO
briefly
interviewed
Leach
and Pritt,
and Leach told him that he was the foreman. (Tr. 78, 127-28; Ex. R-12 at 3:30–3:48). They informed the
CO
that
the job involved repairing roof seams with roof cement. (Ex. R-12 at 1:19–1:33). Pritt made some mention to the CO about a safety monitor. (Tr. 87-88; Ex. R-12 at 1:19–2:01). Leach determined to contact
EWD’s
safety
director,
Tim Crumb.
Both
Leach
and Pritt chose not to speak further with the CO until after Crumb arrived. (Tr. 78,
128).
- Crumb arrived at the worksite
about
15 minutes
after
Leach
contacted
him. As
Crumb
exited
his vehicle,
he turned on his cell phone’s
video
camera
and
slipped
the
phone into
the
chest pocket
of his reflective vest
with the
camera
lens
facing
forward. The camera
recorded
video in whatever direction the lens
faced. The resulting video
sometimes captured
the facial expressions,
gestures, and body language of
Pritt, Leach,
and the CO.
The
microphone
captured
everything that
Crumb
said, and most of what Pritt, Leach,
and the CO said when
they were
near
Crumb.
The camera recorded
for
more than
42 minutes.
The CO did not know that
Crumb was recording the encounter. 3 (Ex. R12; Tr.
200-01, 209-13).
-
Crumb
is a
former OSHA
employee
and
was
previously acquainted
with the CO. (Ex. R-12, 33:30–34:40). At
the start of the
video,
Crumb
approaches the
CO,
and they
began
talking between
only
themselves. The CO told Crumb that he had observed both Leach and Pritt on the roof working on the roof repair and that: “I have photographs of them
on the … northeast corner…. I’ve got
photos
of them right on the edge. Ah,
Cody [Pritt] says they had
a, they had
a monitor, not today though. I don’t know what he is talking about. Cody Pritt told me that.” (Ex. R-12 at
1:19–2:01). -
After some further discussion
with the CO,
Crumb summoned Leach and Pritt to come
over to where he and the CO were gathered.
Crumb
then initiated
the
following
dialogue
with Leach and Pritt for the benefit of the CO
(Ex. R-12, 4:35–6:25 & 10:58–11:07;
Tr. 88, 198):
CRUMB
(addressing Leach
and Pritt):
So
this is what’s important.
To understand the questions that he
[the CO]
is asking, I want you to explain to him
is
that
in normal circumstances you would work separately with apprentices, right?
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB: So, when you each have your own apprentice, each of you would be in charge of that person.
PRITT: [Nodding] [Leach
out of
frame]
CRUMB: So today, you are both here, you [pointing at Leach] are calling yourself the foreman, and you [pointing at Pritt] are calling yourself the employee.
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB:
But
in reality, you are both at the same level.
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB:
You both have the same accountability and responsibilities. You’ve received the same training.
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB:
…. You remember what I did on Tuesday?
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB:
What did we do on Tuesday?
PRITT:
Safety meeting.
CRUMB:
And what
did we go over at the safety meeting?
PRITT:
Fall protection.
CRUMB:
And what did we say?
PRITT:
Always have it.
CRUMB:
Yeah. And what did we say about monitoring?
PRITT:
Always have a monitor….
CRUMB:
Right.
PRITT:
… and
then
make sure it’s okay…
LEACH:
I was monitoring, you know.
CRUMB:
At certain times.
LEACH:
Yeah.
CRUMB:
There is no point in lying. He’s got videos, he’s got a camera. He didn’t stop because he’s like ‘Hey, guess what? I’m going to mess with Elmer Davis today.’ He obviously saw both of you working.
PRITT:
[Nodding] [Leach
out of
frame]
CRUMB:
So, let’s just tell him how long it went on for and why we did it.
PRITT: It didn’t go on for long. We had a safety monitor when we first started, and we were working in the middle, so we, he
[Leach]
was just plopping for me, and then before we knew it,
we were all the way to the edge,
and …
LEACH:
We were done. Damn near done.
CRUMB:
And how long have you been here today?
PRITT: Only an hour,
a little
over an hour maybe….
CRUMB:
So
you were here for like an hour?
PRITT:
[Nodding]. Yeah. We just had to strip a couple of seams up there that were popped open
….
CRUMB (to CO):
Well
they [referring to Leach and Pritt]
know what the deal is. That’s why he [Leach] told you he was monitoring, because they know they are going to get in trouble.
LEACH: [Maintains
impassive
facial expression at
Crumb’s remark]
- Crumb
then
dismissed Leach and Pritt
and told them to
wait
in their truck. For
about the next
29 minutes Crumb
and the CO
conversed
(along with another EWD safety professional,
who
had
arrived on the scene
while the
dialogue reflected
above was in progress). After Crumb finished speaking with the
CO,
he
walked to where Leach and Pritt
were seated
in their truck,
which was outside the CO’s
earshot. The following
dialogue
ensued. (Ex. R-12
at
40:55–42:26
[end];
Tr. 199).
CRUMB:
You
are really
pissing me off. Really
pissing me off.
LEACH:
What happened?
CRUMB: You know what happened. I
literally
told you
on Tuesday
to use a safety monitor at all times.
LEACH: But this was some quick
[expletive].
CRUMB: Did I say you don’t have to do it because it’s quick?
LEACH: Ahh, but I wasn’t really
[unintelligible]
….
CRUMB:
Like this literally gonna
cost us
like,
probably,
fifteen grand. And I am going to have to spend probably a hundred hours fighting with them. There is no value in not using a safety monitor.
There
is
no savings.
PRITT:
[Nodding] [Leach out of frame]
CRUMB: Like I don’t know how else to get that across to everybody. There
is
literally no savings.
LEACH: I
was monitoring for a while,
and then I was like
[unintelligible one-syllable word]
…
CRUMB: I understand that….
LEACH: …
and so I started plopping for him then.
CRUMB:
… but
it,
we just,
it has to be done.
Because
there’s––one––I don’t want anybody falling.
And two––there is no savings. I mean, what money have we saved?
I mean literally for your hourly rate alone, there is no savings. You guys would have been packed up, gone, long before this
ever
would have cost us money. You have to use a monitor.
PRITT: [Nodding] [Leach out of frame] …
-
The next day, May 1, 2021, Crumb sent the CO an
email
that
stated
in part:
“While I haven’t seen any of the photos
…
,
if they represent what you described to me, I have no doubt that a violation occurred.” (Ex. C-R-2). Crumb
stated
further
that
he believed that “this is a case of misconduct.” (Ex. C-R-2). -
Two days later, on May 3, 2021,
EWD, through Crumb,
formally
disciplined
both
Leach and Pritt for their
conduct
on the roof. Crumb
prepared
separate
but
identical
written
disciplinary
notices for each
employee
that
imposed
a one-week suspension
on both
in accordance with EWD’s progressive discipline policy.
Each employee
read and
signed their respective disciplinary
notices. (Tr. 144-45, 157, 176, 231-33; Ex. R-6). Both
notices
described
the
violative conduct to have been as follows:
[On] April 30, 2021, you were observed by an OSHA compliance officer on a roof engaged in work without fall protection. You were
provided
training just 3 days prior about proper fall protection and the use of a safety monitor. You stated that you were using a monitor but then started helping with the roofing work. You are ALWAYS required to have some form of fall protection while on a roof.
- On May 6, 2021, Crumb sent the CO an email stating:
“While I have not seen the photos
…
that you have,
[Leach
and
Pritt]
both indicated that at some point they were using a safety monitor and the monitor then decided to engage in work.” (Ex. CR3
at 2). As
he had indicated in his prior
email
of
May 1,
Crumb again stated
that
he believed the employees had engaged in
“Employee
Misconduct.” ( Id.
at 1).
DISCUSSION
The Commission obtained jurisdiction under section 10(c) of the Act upon
the Secretary’s forwarding to the Commission
the
notice of contest
that EWD
had
timely filed. (Tr. 15). 29 U.S.C. § 659(c); 29 C.F.R.
§ 1903.17(a).
EWD
is an
“employer”
as defined in section 3(5)
of the Act
and
is
thus
subject to the compliance provisions of section 5(a). 29 U.S.C. §§ 654(a),
652(5).
(Findings of Fact ¶ 2; Tr. 15).
Section 5(a)(2)
of the Act requires employers to
“comply with occupational safety and health standards promulgated” under section 6 of the Act. 29 U.S.C. §§ 654(a)(2). The
safety
standard that
EWD
is alleged to have
violated, § 1926.501(b)(10), was
promulgated
pursuant to section
6(b). 29 U.S.C. § 655(b). To
prove
a violation of
such a standard, the Secretary must
establish by
a preponderance of the evidence
that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees
were exposed to, or
had access to,
the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition. Donahue Indus. Inc.,
20 BNA OSHC 1346, 1348 (No. 99-0191, 2003);
D.A. Collins Constr. Co. v. Sec’y of Labor , 117 F.3d 691, 694
(2d. Cir. 1997). 4
Alleged
Violation of
Fall Protection Standard
for Roofing Work on Low-slope Roofs
[ 29 C.F.R.
§ 1926.501(b)(10 )]
The standard that the Secretary alleges EWD violated, § 1926.501(b)(10),
is contained in
Subpart M of 29 C.F.R. Part 1926. 29 C.F.R.
§§ 1926.500–503. Subpart M
“ sets forth requirements and criteria for fall protection in construction workplaces covered under 29 CFR part 1926 . ”
§ 1926.501(a)(1).
Section 1926.501(b)(10),
provides:
Roofing work on
L ow - slope roofs. Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8m) or more above lower levels shall be protected from falling by guardrail systems,
safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line
system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs
50-feet
(15.25m) or less in width (see appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e.
without the warning line system] is permitted.
The
Secretary avers that EWD
violated § 1926.501(b)(10)
in the following manner:
“[T]he employer did
not enforce the use of fall protection, for employees engaged in roof work repairing and installing roof seams. Employees were exposed to falling 15 feet to lower levels, while working near the roof edge with no fall protection.” (As noted previously, this
AVD (alleged violation description) was alleged in the
Citation as it was originally issued
and
was not changed
by the pre-hearing amendment of the Citation to allege
a violation of a
different
subparagraph of
§ 1926.501(b).)
As discussed below, the Secretary has proven
the
four elements of the alleged violation.
- The Cited Standard Applies
The
term “roofing work”
is defined in Subpart M
as “the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work.” § 1926.500(b). And the term
“low-slope roof”
is defined
as “a roof having a slope less than or equal to 4 in 12 (vertical to horizontal).” § 1926.500(b).
The
employees
here
were engaged in roofing work on a
low-slope roof
that had unprotected sides or edges 15 feet above the next lower level. (Findings of Fact ¶¶ 18 & 22).
The cited standard applies
to EWD’s work on the roof here;
EWD does not contend otherwise.
- EWD
Did Not Comply with the Standard’s Terms
Section
1926.501(b)(10)
provides seven
alternative
fall protection
options
for roofing work on
any low slope roof,
no matter the roof’s
width. In addition,
for
roofing work on
lowslope roofs that are no more than
50 feet wide
(as
the roof here), the standard
provides
an
eighth option––the use of a safety monitoring system alone. Leach and Pritt
decided to
implement this
eighth option.
There is no evidence or contention
that the
employees undertook
to implement any of the other permissible options.
Section 1926.501(a)(1) provides that “[a]ll fall protection required by [§ 1926.501] shall conform to the criteria set forth in § 1926.502.” The criteria
specified in
§ 1926.502
for
the
use of a
safety monitoring system
are
prescribed in paragraph (h)
thereof,
which provides:
(h)
Safety-monitoring systems.
Safety monitoring systems [See §§ 1926.501(b)(10) and 1926.502(k)] and their use shall comply with the following provisions:
(1) The employer shall designate a competent person 5
to monitor the safety of other employees and the employer shall ensure that the safety monitor complies with the following requirements:
(i) The safety monitor shall be competent to recognize fall
hazards;
(ii) The safety monitor
shall
warn the employee when it appears that the employee is unaware of a fall hazard or is acting in an unsafe
manner;
(iii) The safety monitor shall be on the same walking/working surface and within visual sighting distance of the employee being
monitored;
(iv) The safety monitor shall be close enough to communicate orally with the employee; and
(v) The safety monitor shall not have other responsibilities which could take the monitor’s attention from the monitoring function.
(2) Mechanical equipment shall not be used or stored in areas where safety monitoring systems are being used to monitor employees engaged in roofing operations on low-slope roofs.
(3) No employee, other than an employee engaged in roofing work [on low-sloped roofs] or an employee covered by a fall protection plan, shall be allowed in an area where an employee is being protected by a safety monitoring system.
(4) Each employee working in a controlled access zone shall be directed to comply promptly with fall hazard warnings from safety monitors.
EWD argues that
the Commission should not even address
the
matter
of
whether
its
employees conformed
with the requirements of § 1926.502(h) because the amended citation did not allege that E WD
had violated that provision. EWD asserts that the Secretary’s “[f] ailure to
formally
and properly allege a standard requires that the Court summarily dismiss any such
‘ violation. ’ ” (Resp’t Br. 24.) This argument is rejected.
Contrary to EWD’s assertion, an alleged violation of § 1926.501(b)(10) “formally and properly” allege s
that the employer failed
to provide fall protection that conformed
with
any of the
eight
options that the standard allows . The criteria for all those options are prescribed in
§ 1926.502 . Section 1926.501(a)(1),
by providing that
“[a]ll fall protection required by
[§ 1926.501]
shall conform to the criteria set forth in § 1926.502 , ”
makes it clear that a violation for failure to utilize the fall protection system
(or
combined
systems)
prescribed
under the various
circumstances set forth in subparagraphs (1) through (15) of § 1926.501(b) necessarily involves a failure to comply with the
relevant
requirements
prescribed
by
§ 1926.502. E.g.,
StormForce of Jacksonville, LLC , No. 19-0593, 2021 WL 2582530, at * 8 n.12
( OSHRC , 2021)
(addressing
employer’s
conformance with § 1926.502(h) in connection with alleged violation § 1926.501(b)(13) , which applies to fall protection in residential construction ). 6
The Secretary
may establish
non-compliance with the “safety monitoring system
alone” option of
§ 1926.501(b)(10)
by proving
that EWD failed to conform with
just
one
of
multiple requirements
prescribed by
§ 1926.502(h). Here, the Secretary contends
that the safety monitoring system failed to
conform
only
to
subparagraph
(h)(1)(v),
which
provides:
“The
safety monitor
shall
not
have
other responsibilities
which could take
the monitor’s
attention from the monitoring function.”
Consistent with the
text of that provision, OSHA
commented
in its 1994 preamble to Subpart M
that
a
safety
“monitor
may
have
additional supervisory or non-supervisory responsibilities, provided that the monitor's other responsibilities
do not interfere with the monitoring function.” 7 Safety Standards for Fall Protection in the Construction Industry,
59 Fed.
Reg.
40672,
40714
(Aug.
9, 1994) (to be codified at 29 C.F.R. pt. 1926);
cf.
non-mandatory
“Appendix
E to Subpart M
of Part 1926”
(containing “sample fall protection plan” that includes the following
as one of the
“duties of the safety monitor”: “Not allow other responsibilities to encumber monitoring”).
EWD’s
work rule
that prohibits
a
safety monitor from engaging in
any
activity other than monitoring
is
thus
more stringent
than the minimum standards prescribed by
subparagraph (h)(1)(v). Compliance with
EWD’s work rule
nearly
assures
that a safety monitor will meet
the requirements
subparagraph (h)(1)(v).
This was
among the
reasons
EWD
established
this
more stringent rule. ( See
Tr. 251).
To establish non-conformance with
subparagraph (h)(1)(v), the Secretary was
not
required to prove that
a safety monitor’s other responsibilities or activities had actually taken the
monitor’s
attention from his monitoring function. Rather,
the Secretary was required to prove
only that a
safety monitor’s other
responsibilities or
activities “ could
take the monitor’s attention from his monitoring function.” Cf.
Beta Constr. Co. , 16 BNA OSHC
1435,
1443
(No. 91-102, 1993) (noting that the
former standard
for safety monitoring systems
[§ 1926.502(p)(7)
(1990)], which had no provision that corresponds to current subparagraph (h)(1)(v),
“does not expressly require that a monitor perform that duty exclusively,” but “[r]ather, the standard sets forth performance criteria for determining the effectiveness of the safety monitoring”),
aff’d ,
52 F.3d 1122
(D.C. Cir. 1995) (unpublished). To the extent that subparagraph (h)(1)(v)
establishes performance criteria, it
is “interpreted in light of what is reasonable.” Thomas Indus. Coatings , 21 BNA OSHC 2283, 2287 (No.
97-1073, 2007) (“performance standards … are interpreted in light of what is reasonable”).
The word “could” as used in subparagraph (h)(1)(v) is not
itself
a defined term in the standard,
and so it carries its ordinary meaning.
Crawford v. Metro. Gov’t of Nashville & Davidson Cty. , 555 U.S. 271, 276 (2009) (undefined term “carries its ordinary meaning”);
see
also
Fla. Gas Contractors, Inc. , No. 14-0948, 2019 WL 995716, at *3 (OSHRC Feb. 21, 2019) (turning to dictionary
to determine meaning of a word that is not defined in the standard). The first numbered
definition of “could”
identified
in a
prominent
dictionary
is that it is the past tense of “can.”
Random House Unabridged Dictionary
460
(2d ed. 1993). The
second and third numbered
definitions
for the word in that dictionary
are: (1) “used
to express possibility,”
and (2) “used to express conditional possibility or ability.” Id.
The
meaning of the word “could” as used in subparagraph (h)(1)(v)
is consistent with
both
the second
and
third numbered definitions.
S ee also
Beta Constr. Co. , 16 BNA OSHC
at
1443
(applying
the
former standard
for safety monitoring systems
[§1926.502(p)(7)
(1990)], which had no provision
that corresponds
to current subparagraph (h)(1)(v),
and deciding that the employer’s
“practice, under which one employee
moves backwards toward the edge of the roof while the other employee—his monitor—is engaged in smoothing out the roofing material, does not comply with the standard because it
allows
the monitor to be distracted”
[emphasis
added]).
Evidence described below establishes
nonconformance with § 1926.502(h)(1)(v)
by showing that
it was reasonably possible
Leach’s activities
while acting as safety monitor
could
take
his attention from
the
essential “monitoring function”
of
“recogniz[ing] fall hazards” and
“warn[ing]
the employee when it appears that the employee is unaware of a fall hazard or is acting in an unsafe manner.” § 1926.502(h)(1)(i) &
(ii);
c f.
Beta Constr. Co.
16 BNA OSHC
at 1444
(“The facts here demonstrate that the monitor’s ability to issue the required warning depends on a fortuity that he will be looking up at the other employee at the requisite times”);
S. Hens, Inc. v. O SHRC , 930 F.3d 667, 677 (5th Cir. 2019) (noting that “occupational safety regulations exist because people are distractible,” that “functioning with less than perfect focus and control is our ordinary condition,” and that “OSHA standards serve to protect workers from common human errors such as neglect, distraction, inattention or inadvertence”).
The
CO observed
and took photos of
Leach and Pritt
for
about
ten minutes before
he
alerted them
to his
presence. (Findings of Fact ¶ 29;
Joint
Pre-Hr’g
Statement 5). Those photos
depict
Leach engaging in
roofing work in
such
a manner as to make it reasonably possible
that his
attention
could have
been
taken from his responsibilities
to monitor
Pritt
and
to
recognize when
Pritt needed to be warned. Photographs
depict
Leach
standing near,
and with his back to,
the roof’s edge,
bent over at the waist
and looking
downward
at the roof’s surface
and away from Pritt
in order to scoop
cement
out of
a bucket
with a hand trowel
and
deposit
the cement
onto the roof. (Exs. C-1
to C-4). The photographs reflect that Leach was moving around on the rooftop
while performing this roofing work. (Exs. C-1 to C-9). In addition to the
reasonable
possibility
that
the
roofing work
that
Leach
was doing
could
have
distracted
him
from his monitoring responsibilities,
it is reasonably possible that he
could have been distracted by
having to
“mind the edge” for his own safety
while moving around
the rooftop while depositing the cement
and while working near, and with his back to, the unprotected edge. 8 (Tr. 95, 102, 139-41).
The photographic evidence
of non-compliance
is corroborated by
the employees’ contemporaneous recorded assertions that
at the start of the repair work
Leach monitored Pritt,
but that Leach
effectively
stopped
monitoring
when he
“started
plopping” cement on the roof
for Pritt. 9 (Findings of Fact ¶¶ 32 & 33). At the worksite,
when Crumb said to Leach that he
(Leach)
had been
monitoring
only
“at certain times,”
and Leach replied, “Yeah,”
Leach
essentially admitted that there were
other times when he had not
been
monitoring. 10 (Ex. R-12 at 5:26–5:31). Leach’s
contemporaneous remarks are
consonant
with
the
Employee
Disciplinary
Notices
that
Crumb
prepared and that
both Leach and Pritt
signed, both of which stated: “You stated that you were using a monitor but then started helping with the roofing work.” (Ex. R-6).
Moreover,
after
Crumb
had
the opportunity to investigate internally,
and two days before
he
imposed
formal discipline
on
Leach and Pritt,
he
told
the CO that
he
believed there had been a fall protection violation
but
that this was “a case of misconduct.” (Ex.
C-R-2). And
then,
after
the
safety director
had
disciplined
the
employees,
he
informed
the CO
that
the employees
“both indicated that at some point they were using a safety monitor and the monitor then decided to engage in work,”
and that
the safety director
believed
their actions
constituted
“Employee
Misconduct.”
(Ex. C-R-3, at 2).
Mr. Crumb
is
a
knowledgeable
and experienced
safety professional,
and he
is well versed in the requirements of Subpart M.
(E.g., Tr.
221-22; Ex. R-12 at 24:00–27:30, 33:30–34:40, 35:10–35:30, 35:45–37:20, 37:55–38:15, 39:10–40:30).
It is unlikely that he would have made
these inculpatory
written
representations
to the CO
unless he had been reasonably certain
that
Leach’s activities as safety monitor for Pritt
had
failed to
conform to the requirements of § 1926.502(h).
See, e.g. ,
SRS Roofing & Sheet Metal, Inc. , 23 BNA OSHC 1141,
1145
(No. 09-0055, 2010) (ALJ) (finding a violation
where safety monitor’s activities put him in a position where he “could not see, or assess, whether
[the monitored employee] was unaware of a hazard or was acting in an unsafe manner.”);
Upstate Roofing, Inc. , No. 00-0336,
2002 WL 31246069,
at
*3
(OSHRC
ALJ, Oct. 3,
2002) (finding a violation where safety monitor’s activities
caused him to
turn his attention away from the employee he was monitoring
“on a regular basis”).
The
greater
weight
of the evidence establishes that
EWD
failed to comply with the cited standard
because
Leach, the designated safety monitor, engaged in activity
that reasonably could
have taken
his attention from his monitoring function, contrary to the requirement of
§ 1926.502(h)(1)(v). 11
- Employee
Exposure or Access
to the Violative
Condition
Employee
“[e]xposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.” Phoenix Roofing , 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995),
aff’d , 79 F.3d 1146 (5th Cir. 1996). Pritt worked
near the unprotected edge of the roof
without
compliant
fall protection because the designated safety monitor
was
not conforming
to the requirements of § 1926.502(h)(1)(v). (Findings of Fact ¶ 32). This resulted in
Pritt
having
actual exposure
to
a fall hazard.
Moreover,
EWD acknowledges
that “[f]or a fall hazard presented by a roof with unprotected sides and edges, the zone of danger
is the entire elevated surface.” Resp’t Br. 31, citing to
59 Fed. Reg. at 40683
(“In conclusion, after careful and complete consideration of the entire record, OSHA has determined that there is no ‘safe’ distance from an unprotected side or edge that would render fall protection unnecessary”). 12
- Employer
Knowledge
“The fourth element, the knowledge requirement, may be satisfied by proof either that the employer actually knew, or with the exercise of reasonable diligence, could
have known of the presence of the violative condition.” N.Y. State Elec. & Gas Corp
v.
Sec’y of Lab or
(NYSEG) , 88 F.3d 98, 105 (2d Cir. 1996). “Knowledge or constructive knowledge may be imputed to an employer through a supervisory agent.” Id.
Under Commission precedent,
a supervisor’s knowledge of
their
own violative conduct may be imputed to the employer without a showing that the supervisor’s misconduct was foreseeable.
See Deep S. Crane & Rigging Co. , 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012) (noting that under Commission precedent, a supervisor's knowledge of his own misconduct is imputed to the employer, but applying contrary applicable circuit court precedent that requires a showing of foreseeability),
aff'd , 535 F. App'x 386 (5th Cir. 2013) (unpublished). The
Sixth and Seventh Circuit courts of appeal have decided
the same.
Danis-Shook Joint Venture XXV v. Sec’y of Lab or , 319 F.3d 805, 812 (6th Cir. 2003)
(ruling that
because the employer’s foreman
“knew of his own failure to wear personal protective equipment, this failure may be imputed to”
the
employer);
Dana Container, Inc. v. Sec'y of Lab or , 847 F.3d 495, 499–500 (7th Cir. 2017) (concluding that “[w]e see no problem with the Commission's decision to impute” a supervisor’s knowledge of his own violation to the employer).
Five other
circuit courts of appeal
have ruled that a supervisor’s knowledge of
their
own violative conduct
may be imputed to the employer only if the Secretary proves that the
supervisor’s
violative conduct was foreseeable. Pa. Power & Light Co. v. OSHRC , 737 F.2d 350 (3d Cir. 1984);
Ocean Elec. Corp. v. Sec'y of Labor , 594 F.2d 396 (4th Cir. 1979);
W.G. Yates & Sons Constr. Co. v. OSHRC , 459 F.3d 604 (5th Cir. 2006);
Mountain States Tel. & Tel. Co. v. OSHRC , 623 F.3d 155 (10th Cir. 1980);
ComTran Grp., Inc. v. DOL , 722 F.3d 1304 (11th Cir. 2013).
The D.C. Circuit has not directly addressed the issue,
but
it
has
stated
it is “skeptical” of requiring the Secretary to prove foreseeability to impute
a
supervisor’s
knowledge of his own violative conduct
to his employer. Wayne J. Griffin Elec., Inc. v. Sec'y of Lab or , 928 F.3d 105, 109 (D.C. Cir. 2019).
Nor does the
Second Circuit
appear to have directly addressed the issue, but
its
decision in
NYSEG
suggests that it would
follow the
rule
requiring the Secretary to prove foreseeability. NYESG , 88 F.3d at 106-07
(describing
the
decisions of the
Third and
Tenth Circuits
in
P a.
Power
and
Mountain States
that require a showing of foreseeability).
The “Secretary can prove foreseeability in a variety of ways,”
New River Elec. Corp. v. O SHRC , 25 F.4th 213, 221 (4th Cir. 2022), but the
determination
typically
turns on
“the adequacy of a company's safety program, broadly construed.”
Pa. Power , 737 F.2d at
358;
see also NYSEG , 88 F.3d at 106-07 (“constructive knowledge may be predicated on an employer’s failure to establish an adequate program to promote compliance with safety standards”). The
Commission
assesses
the adequacy of an employer’s safety program
by “consider[ing]
several factors, including an employer’s obligations to implement adequate work rules and training programs, adequately supervise employees, anticipate hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr.
of Tex. , 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016).
The adequacy of an
employer’s safety program
is assessed
in a similar manner
in determining whether an employer has established the affirmative defense of unforeseeable employee misconduct. PSP Monotech Indus. , 22 BNA OSHC 1303, 1306, n.4 (No. 06-1201, 2008) (noting “that the Secretary's burden of proving constructive knowledge and
[the employer’s]
burden of showing unpreventable employee misconduct rest upon an overlapping issue––whether [the employer] had an adequate safety program”),
citing
NYSEG , 88 F.3d at 106.
Even though
Leach, not
Pritt,
was the designated foreman
for
the two-person crew
here,
Pritt
retained his position title and status of
“service foreman.” As
EWD’s safety director
said
during the inspection,
“both [Pritt and Leach] have the same accountability and responsibilities,” and have “received the same training.” (Ex. R-12, 4:35–6:25). See Rawson Contractors, Inc. , 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003) (supervisory status of an employee is based on a consideration of the “indicia of authority that the employer has empowered a foreman or other employee to exercise on its behalf”);
N YSEG , 88 F.3d at 105.
The weight of the evidence establishes that
Pritt
knew
that
Leach had essentially quit monitoring
him
when Leach started engaging in roofing work,
but
that
Pritt
continued working
anyway. Pritt’s statement to
the CO and
Crumb
supports this finding: “We had a safety monitor when we first started, and we were working in the middle, so we, he [Leach] was just plopping for me, and then before we knew it, we were all the way to the edge.” (Ex. R-12, 4:35–6:25). Further, EWD’s discipline
of
Pritt
for having “engaged in work without fall protection” (Ex. R-6)
supports the finding that Pritt knew that Leach had quit monitoring. (Ex. R-6). EWD’s
discipline of Pritt
was
justifiable only if
Pritt knew that he was working without fall protection.
Pritt’s knowledge of Leach’s violative conduct is imputable to EWD
and satisfies the Secretary’s burden to prove the employer knowledge element.
This conclusion is consistent with Commission precedent
that does not require a showing foreseeability under any circumstances, because it is Pritt’s knowledge of Leach’s violative conduct that is imputed to EWD.
See
T NT
Crane & Rigging, Inc. , No. 16-1587,
2022 WL 2102910,
at
*3-4 (OSHRC, June 2, 2022);
Angel Bros. Enter s. , Ltd. v. Walsh , 18 F.4th 827, 830–32 (5th Cir. 2021)
(showing of foreseeability not required where the supervisor whose knowledge is sought to be imputed did not commit the safety violation
cited).
Considering separately the imputation of Leach’s
knowledge of
his violative conduct to EWD, Commission precedent
allows
such imputation without proof of foreseeability.
Deep S. Crane & Rigging , 23 BNA OSHC
at
2102.
However, if
contrary circuit court precedent that requires proof of foreseeability
were
the
controlling precedent here,
the
Secretary would not have succeeded in imputing Leach’s knowledge of his own violative conduct to EWD. To the contrary, EWD proved by a preponderance of the evidence that Leach’s violative conduct was unforeseeable, and in doing so
EWD
established the affirmative defense of
unforeseeable employee misconduct, as discussed next.
Un foreseeable
Employee
Misconduct
With the alleged violation having been proven,
EWD
argues alternatively
that
the Citation should be vacated
because
it
has
proven
the affirmative defense
of unforeseeable employee misconduct
(UEM).
To establish that
affirmative defense, an employer must prove
each of the following elements by a preponderance of the evidence: “(1) it established work rules to prevent the violation; (2) these rules were adequately communicated to the employees; (3) it took steps to discover violations;
and (4) it effectively enforced the rules when infractions were discovered.” 13
D.A. Collins Constr. Co. , 117 F.3d
at
695.
“When the alleged misconduct is that of a supervisory employee, the employer must also establish that it took all feasible steps to prevent the accident, including adequate instruction and supervision of its employee.” Archer-W .
Contractors, Ltd. , 15 BNA OSHC 1013,
1017 (No. 87-1067, 1991) ,
aff'd , 978 F.2d 744 (D.C.
Cir.
1991) ( unpublished ) . “Where
…
an employer defends against an alleged violation on the ground of unpreventable
supervisory
misconduct, the employer's burden of proof is more rigorous and the defense more difficult to establish because supervisory involvement in asserted misconduct is strong evidence that the employer's safety program is lax.”
Fl a . Gas Contractors, Inc. , 2019 WL 995716, at *7.
- Established
Work Rule s to Prevent the Violation
The first element of the defense—that the employer
has
established
work rules to prevent the violation—may be satisfied where the work rule
“effectively implemented
the requirements of the standard.” TNT Crane & Rigging, Inc , 2022 WL 2102910, at *4. This
element may also be satisfied where the work rule
is “designed to prevent the cited violation.”
Gary Concrete Prods., Inc. , 15 BNA OSHC 1051,
1056
(No. 861087, 1991)
(rejecting
UEM
defense in concluding that the employer did not have work rules “designed to prevent the cited violation”);
AJM Packaging Corp. , 2022 WL 1102423, at *6 (OSHRC,
Apr.
1, 2022) (determining, as part of “constructive knowledge” analysis for a lockout/tagout violation, that a
work rule that
would
prevent
the
creation of hazardous energy
was
adequate).
EWD’s
work rule
prohibited
safety monitors
from engaging in any activity
other than
monitoring
employees. If Leach had complied with this work rule, his conduct would have conformed to the
mandate
that a
safety monitor
have no “other responsibilities which could take the monitor’s attention from the monitoring function.”
§ 1926.502(h)(1)(v).
A
safety monitor’s compliance with
EWD’s more stringent
work rule would make it nearly impossible to gainsay the monitor’s
conformance with § 1926.502(h)(1)(v). Indeed, this was among the reasons
EWD
established
that more stringent rule. (Tr. 220-21, 250-51, 273). EWD’s
work rule
was adequate because is
both “effectively implemented
the requirements of the standard,”
TNT Crane ,
and
was “designed to prevent the cited violation.” 14
Gary Concrete Prods.
15 BNA OSHC at 1056.
- Work Rule
Adequate ly
Communica t ed
to Employees
Adequate communication of a work rule is established where
employees
are aware of a work rule and know when it is to be implemented. See Texland Drilling Corp. , 9 BNA OSHC 1023, 1026 (No. 76-5037, 1980)
(finding adequate communication of a work rule where
employees
are
trained,
experienced,
and
know of the work rule). Adequate communication of a work rule
may be accomplished
through
training. Angel Bros. Enter s. , Ltd. , 2020 WL 4514841,
at
*5–6
(finding
orientation
training,
bi-annual training,
toolbox talks, and an expressed instruction the day prior to the employee’s misconduct to
have
been
“more than sufficient to meet Angel's burden of proving adequate communication”),
aff'd
18 F.4th 827 (5th Cir. 2021);
United Contractors Midwest, Inc. , 26 BNA OSHC 1049, 1052 (No. 102096, 2016)
(finding
rules
adequately
communicated where they were
explained in
new employee
orientation, toolbox talks, and annual training sessions, and an employee
received express instruction to comply with the rule on the day of the violative conduct);
Thomas Indus. Coatings, Inc. , 23 BNA OSHC
at
2087 (finding
Secretary had failed to prove the employer’s safety program was inadequate
for purposes of constructive knowledge analysis
where
the three
employees
that had been
involved in violative conduct
had
attended training on the
relevant
work rule
five months
earlier,
had
attended weekly
toolbox talks thereafter, and had received instruction to comply with the rule at the worksite days before the violation).
A preponderance of the evidence establishes that EWD adequately communicated its work rule. EWD’s
written
“Corporate Safety Program”
addresses the role of a safety monitor in fall protection and is
covered
during orientation for new employees.
(Tr. 125-26, 224-25; Ex. R-1).
EWD
conducts annual
group training
that includes fall protection training
for
its
construction
employees. (Tr. 222-23). EWD’s
field
employees also participate in
regular
toolbox talks and on-the-job training.
(Tr. 223-25; Ex. R-1, at 69). Three days
before the violation here,
Leach and Pritt
had
both
attended
refresher
training on the use of
a
safety monitoring system
for
fall protection. (Tr.
125-26,
138-42, 156, 192, 226-30; Ex. R-2; Ex. R-12).
With respect to the employees’ understanding of the rule,
the testimony of both employees evinced their
thorough understanding
of
the
proper
use of
a
safety monitoring system, Pritt especially. (Tr.
139-40,
159-60, 164-68).
The Secretary argues that
the whole of the evidence showed that
work
rule
had not
been adequately communicated because
“Leach and Pritt both insisted at trial they did nothing wrong” and
that
“the failure of two foremen-level employees to understand the safety monitor requirement shows that
[EWD]
did not adequately communicate that requirement to its employees.” (Sec’y Br. 19). It is true that in testifying about the
discipline
that
they
had
received,
both
Leach and Pritt
deflected personal responsibility. Leach
claimed
that when he received the discipline he
was
not
told that he had done anything wrong.
(Tr. 146). And while
Pritt
initially
testified that,
“[w]e knew what we had done [was] wrong,”
he
then
immediately
backpedaled, testifying:
“Honestly,
I don’t think we did anything wrong. I mean, it's just the way he has his pictures makes it look different, because we were -- the only time I was on the edge was right at the end, and Ory [Leach]
was watching me.”
(Tr. 176). This self-serving testimony
of Leach and Pritt
is given no weight
because it is
contrary to
weightier and more reliable evidence,
such as:
(1) the
employees’
contemporaneous
culpable statements
as recorded in the video at Exhibit R-12;
(2) the formal disciplinary notices that each employee signed
and accepted;
and
(3) Crumb’s
email to
the
CO
that both employees had indicated “that at some point they were using a safety monitor and the monitor then decided to engage in work.”
(Findings of Fact ¶¶32–36).
The greater
weight of the evidence establishes
that EWD
adequately communicated
to its employees, including
its
supervisory employees,
its
work
rules
on the
appropriate use of a
safety monitoring system.
- Adequacy of Steps to
Discover Violations
“Establishing adequate procedures for monitoring employee conduct for compliance with applicable work rules is a critical part of any employer effort to eliminate hazards.”
Am. Sterilizer Co. , 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
“Effective implementation of a safety program requires a diligent effort to discover and discourage violations of safety rules by employees.” Propellex Corp. , 18 BNA OSHC 1677,
1682 (No. 96-0265, 1999). “[O]ne of the factors considered in determining whether an employer effectively enforced its safety rules are the efforts it took to monitor adherence to those safety rules by supervisory employees.” L. E. Myers Co. , 16
BNA OSHC
1037,
1042
(No. 90-945, 1993).
The
preponderance of the
evidence establishes
that
EWD
established adequate procedures for monitoring employee compliance with safety rules and
that it
exercised reasonable diligence
implementing those procedures. (Findings of Fact ¶¶ 8–11).
Every
EWD work
crew has a designated foreman who is
responsible for
worksite
safety. (Tr. 129-30, 134, 242). EWD’s
safety
director
devotes
much of his time
visiting EWD
jobsites and
observing
for
compliance with work rules. (Tr. 225). In
addition
to
the
safety director’s
regular
visits to worksites,
at least one other
member
of EWD’s safety department conducts
regular
worksite inspections. (Tr. 226; Ex. R-12 at 9:50–10:09). EWD
also hires
outside
safety consultants to
conduct
unannounced inspections and
requests
that
its
insurance carriers
conduct
unannounced inspections. (Tr. 225-26). Leach, an
EWD
service
foreman,
corroborated this uncontradicted evidence regarding the conduct of worksite inspections by EWD’s safety department.
(Tr.
126,
131, 135-36). EWD’s records of
disciplinary
action
also
corroborate
the
occurrence
of
such safety inspections
and their efficacy in identifying violations of safety rules,
including fall protection violations by
supervisory
employees. (Ex. R-7, at 9, 18, 23, 26, 30, 33, 35, 37).
EWD
has established that
it
exercised
reasonable diligence in
discovering
employee violations of
safety
rules. Cf. Stahl Roofing, Inc. , 19 BNA OSHC 2179,
2182
(No. 00-1268, 2003) (finding
employer
provided adequate supervision of its worksites for purposes of constructive knowledge analysis
where, in addition to
having a supervisor on site, other safety personnel conducted scheduled and random inspections of worksites).
- Effective
Enforcement
When Infractions Discovered
To establish the
final element of the
UEM
defense––that
the cited employer
effectively enforced the rules when infractions were discovered––“requires a showing that the employer effectively disciplines employee misconduct.” L.E. Myers Co. , 16 BNA OSHC
at
1042;
see also
Stahl Roofing, Inc. , 19 BNA OSHC
at
2182 (finding employer
had adequately enforced its progressive disciplinary policy where evidence indicated
that after violations had been identified
the progression had been followed);
TNT Crane & Rigging, Inc. , 2022 WL 33886, at *8 (concluding
employer failed to establish that it had effectively enforced power line safety rules
where no employee had been previously
disciplined
for violating those
rules
even though
it
was “highly unlikely” that
there had been no previous violations);
Stark Excavating, Inc. , 24 BNA OSHC 2218, 2220 (No. 09-0004, 2014) (effective enforcement not proven
where supervisors
regularly failed to
impose
the employer’s
specified progressive disciplinary measures),
aff’d , 811 F.3d 922 (7th Cir. 2016);
cf.
D.A. Collins Constr. Co. ,
117 F.3d
at
695
(“Evidence that a foreman or supervisor has violated a statutory standard permits the inference that the employer’s safety program has not been adequately enforced”).
Pre-inspection and post-inspection disciplinary measures may be considered in determining whether an employer
has
effectively enforced its work rules. GEM Indus., Inc. , 17 BNA OSHC 1861, 1863-64, n.6 (No. 93-1122, 1996),
aff’d , 149 F.3d 1183 (6th Cir. 1998);
Precast Serv., Inc. , 17 BNA OSHC 1454, 1456 (No. 93-2971, 1995) (“Commission precedent does not rule out consideration of post-inspection discipline, provided that it is viewed in conjunction with pre-inspection discipline”),
aff’d , 106 F.3d 401 (6th Cir. 1997).
EWD’s progressive discipline policy prescribes an
oral warning
as
the
sanction for most firsttime rules violations, but an employee’s first-time failure to use required fall protection is an exception. (Ex. R-1 at 33). For such a violation of a fall protection rule, EWD’s progressive discipline
policy
prescribes the substantially more
severe sanction
of a
one-week suspension
(or, at the option of the sanctioned employee
and in lieu of suspension,
completing
an OSHAauthorized training
course on their own time). (Findings of Fact ¶ 12;
Tr. 230-31; Ex. R-1 at 33).
EWD
employs between 150 and 300 workers depending on the season. (Findings of Fact ¶ 1). Since 2013, EWD has
imposed
formal
progressive
discipline measures about
83
times. (Tr. 234-35; Ex. R-7, at 1-3). The discipline imposed has
included
progressive discipline
for violating rules on the
use of a safety
monitoring system for fall protection. (Ex.
R-7 at 1-3). Uncontroverted evidence
showed
that
at least since 2013,
EWD
has
imposed formal
progressive disciplinary measures
on both
supervisory and
nonsupervisory employees
for fall protection
violations.
(Tr. 230; Ex.
R-1 at 33-34;
Ex.
R-7
at
5
[five-day suspension of
apprentice roofer
for
first time
misconduct while acting as safety monitor],
id.
at 12
[foreman
terminated for multiple safety violations including improper use of
safety monitor],
id.
at 18
[journeyman roofer disciplined for
improper use of personal fall arrest system],
id.
at 28
[five-day suspension of
journeyman roofer disciplined for
working
without
a safety monitor],
id.
at 31
[five-day suspension of
foreman
of two-person crew
for
first time violation of
working without a
safety monitor],
id.
at
32
[five-day suspension of
apprentice roofer
for
first time violation of
working without safety monitor]). Consistent with its prior disciplinary practices, EWD imposed five-day suspensions on
the two
service foremen here. (Findings of Fact ¶ 35).
Notwithstanding that a supervisor’s
violative conduct constitutes
“strong evidence that the employer’s safety program is lax,”
Stark Excavating, Inc. , 24 BNA OSHC at 2220, the whole of the evidence overcomes that substantial evidentiary hurdle. The evidentiary record presented here establishes by
a preponderance of the evidence each
element of
the UEM
defense. EWD having
established
the
affirmative defense, the sole alleged violation must be
vacated. 15
ORDER
The foregoing decision constitutes findings of fact and conclusions of law
on all material issues of fact, law, or discretion
in accordance with
Commission Rules
90(a)(1)
and 209(f)(2). 29 C.F.R. §§
2200.90(a)(1), 2200.209(f)(2).
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that
amended
Citation 1, Item 1, alleging a
serious
violation of 29 C.F.R.
§ 1926.501(b)(10), is
VACATED.
s/
William S. Coleman
WILLIAM S. COLEMAN
Administrative Law Judge
Dated:
February 21, 2023
"
1 Even
though
heard
and decided under the C ommission’s
rules
for “ S implified
P roceedings,” the undersigned
would not characterize either the
either the hearing
or
adjudication
as having been “ simple. ”
2 Because this matter
was designated for “simplified proceedings,”
no complaint or answer
were
filed. See
29 C.F.R. § 2200.205(a) (providing that “the complaint and answer requirements are suspended” in simplified proceedings). The original citation thus served as the functional equivalent of the Secretary’s complaint, so the motion to amend
operated
to amend the original citation item. Pursuant to a scheduling order,
EWD
filed a statement of affirmative defenses
on January 21, 2022, and later was permitted to file an amended statement of affirmative defenses. After the Secretary’s amendment to the
C itation was granted,
EWD ’s affirmative defenses to the amended citation items were
again expressly
stated
on the record
at the outset of the hearing. (T r .
10-11 ).
3 The Secretary first became aware of the existence of the video on the first day of the hearing,
when
Crumb , who represented EWD at the hearing,
sought to
use a segment of the video to
impeach
the
CO’s testimony
in
cross -examination. (Tr. 109-112).
(This matter was designated
for hearing and decision
under the Commission’s rules for Simplified Proceedings,
and so pursuant to Commission Rule s
200(b)(4) and
208 ,
the parties did not engage in formal
discovery
that would otherwise have been allowed
under Commission Rules
52 through 56 .)
The entire video, marked as Exhibit R-12, was eventually played
at
the
hearing,
and was
admitted
in evidence .
(Tr. 206-220).
However,
p ursuant to the undersigned’s direction ,
the parties
later
prepared and
filed a “Joint Statement Regarding Relevant Portions of Video Exhibit R-12 , ”
dated May 13, 2022. (Tr. 220 , 423-24 ) . As indicated at the hearing, o nly those segments of
video
that the parties have identified
to be
relevant
in this joint filing
are
deemed formally received in evidence . Only
those identified segments
have been considered in
arriving at the
findings of fact
and
conclusions of law herein. ( See
T r .
424 ).
4 The employer
and
the Secretary may
seek judicial review of
a
final order of the
Commission
in
the federal court of appeals for the circuit in which the violation
is
alleged
to have
occurred or where the employer has its principal office, and the employer may
seek judicial review
also
in
the District of Columbia Circuit.
29 U.S.C. §§ 660(a) and (b). Here, the
alleged
violation occurred in New York, in the Second Circuit, where
EWD ’s office is also located.
See
29 U.S.C. § 660(b).
If this decision becomes a final order of the Commission, EWD w ould
be the prevailing party ,
and
the
Secretary
could
seek judicial review
only in the Second Circuit. I n deciding a case, the Commission
generally
regards precedent of the
circuit
court of appeals
to which th e Commission
decision
is most likely to be
appealed
to be controlling precedent .
See
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96 1719, 2000).
5 The term “c ompetent person , ”
a s
appli cable
to all of
Part
1926 ,
is defined
in
§ 1926.32(f)
as follows : “ Competent person
means
one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.”
6 E ven if
the Secretary had been required to
have
expressly
alleged that
EWD
had
violated
§ 1926.502(h), the undersigned would
amend the Citation
sua sponte
pursuant to
Rule 15(b)(2) of the Federal Rules of Civil Procedure
t o
include an alleged
violation of that
standard . See
Torry v. Northrup Grumman Corp. , 399 F.3d 876, 878 (7th Cir. 2005)
(upholding
Commission
judge’s
sua sponte
amendment of complaint under
Rule
15(b)(2)) .
Amendment under Rule 15(b)(2) “is proper only if two findings can be made –– that the parties
tried
an unpleaded issue and that they
consented
to do so.” McWilliams Forge Co., Inc. , 11 BNA OSHC 2128, 2129 (No. 80-5868, 1984). “Trial by consent may be found only when the parties knew, that is, squarely recognized, that they were trying an unpleaded issue.”
Id.
at 2129-30 .
Such a p ost-hearing
sua sponte
amendment would be appropriate here. Prior to the hearing, the parties prepared and submitted a
J oint
Pre hearing
S tatement ,
in which EWD identified the following to be an issue of law t o be litigated: “A safety monitor is not prohibited from having other job duties.” (Joint
Pre-Hr’g
Statement
at 7). Th e identification of this issue
shows that
EWD
“ squarely recognized ”
that its conformance with § 1926.502(h) (1)(v)
was at issue . At the hearing EWD
presented evidence to
demonstrate
conform ance with
§ 1926.502(h) . ( E.g. , Tr. 97-98, 126, 156-57). This
reflects EWD’s consent to try that issue . S ee also
Avcon, Inc. , 23 BNA OSHC 1440, 1451 -52
(No. 98-0755, 2011) (consolidated)
( on discretionary review of a Commission judge’s decision, the
Commission
sua sponte
amends
multiple
citation items
after
con sider ing
whether
the
respondent “ had a fair opportunity to defend and
…
could have offered any additional evidence if the case was retried ”) ;
LM Sanderson Constr . , Inc. , 26 BNA OSHC 2148,
2157-58
(No. 16-1321, 2017) (ALJ) (post-hearing
sua sponte
amendment of cited standard from subparagraph (1) to subparagraph (13) of § 1926.501 (b) ).
7
In the preamble to Subpart M,
OSHA
also commented
that
it considered a safety monitoring system
“to be the least acceptable option for protecting employees from falls.” 59 Fed. Reg.
at
4071 5.
8 To the extent the
Secretary
argues
that
Pritt’s
conduct
on the roof
violated the standard
because his conduct resulted in the Leach
doing roofing
work
without fall protection , that argument is rejected .
(Sec’y Br.
15 ) .
The
Secretary’s
theory of the violation
at the hearing does not appear to have been
grounded in
any asserted
failure of Pritt to properly
act
as a safety monitor for Leach .
C f. Beta Constr . Co. ,
16 BNA OSHC
at
14 36
(“We
…
conclude that the [former safety monitor standard ,
§ 1926 .502(p)(7) (1990)], does not necessarily preclude a work practice by which each member of a 2–man work crew monitors the other ”).
9 The whole of the evidence is insufficient to establish by a preponderance that Leach
engaged in
any roofing work other than to scoop cement from the bucket and deposit it on the roof for Pritt
to then
apply
to the roof seams. In their contemporaneous statements at the worksite, thi s is
essentially
what the employees
said they were doing . (Ex. R-12).
T he CO
testified
that it
appeared to him
that
in one of the p hotograph s
Leach ’s
“ left arm appears to be
applying
sealant to a roof seam . ”
(Tr. 52-53, 56; Ex. C-4). B ut from
the
ground - level
vantage point
from which the photo was taken,
what Leach was doing with his hands near the roof’s surface could not be seen .
(Ex. C-4).
10 Leach’s
hearing
testimony that he was
simply
holding
a
trowel and
had not been using it to
deposit the
cement
on to the roof is
given no weight.
(Tr. 125-26).
His
recorded
contemporaneous
contrary assertions, as well as the recorded contrary assertions of Pritt,
bear far greater indicia of reliability than
Leach’s
contrary hearing testimony .
11 The CO’s testimony
that he determined
the employees had no fall protection
was based essentially on his
description
of
what
the photographs that he took
depict ed . (Joint
Pre-Hr’g
Statement
at
4–5) .
And so, th e CO’s
testimony was
largely
cumulative of the photograph s themselves . While EWD vigorous ly
challenge s
the reliability and credibility of the CO’s testimony ( Resp’t Br. 20- 24), none of
CO’s
testimony respecting
alleged
non-compliance
with the standard
was more probative than the photograph s
that
the CO took
or the contemporaneous assertions of Leach and Pritt that
was
corroborat ive of the
CO’s testimony .
In other words, the finding of non-compliance with the cited standard does not turn on the reliability or credibility of the CO’s testimony.
12 The parties’ briefs-in-chief address the issue of
whether evidence of
Leach ’s
expos ure to a
fall hazard while he was acting as a safety monitor
was sufficient to establish the
“ employee exposure ”
element of the Secretary’s burden of proof .
(S ec’y
Br ief
15;
Resp’t Br. 24-26, 30-32 ) . However,
i n
his reply brief, the Secr etary withdr ew
that component of his
argument
on the exposure element .
(Sec’y Reply Br. 7, n.7).
Thus,
the matter of whether the Secretary proved the alleged violation by showing that
Leach had been exposed to a fall hazard
is
no t i n issue .
13 As indicated
supra, adjudication of the
UEM
defense
often
involves
evaluating the “same factors”
that are
assessed
in determining whether
the Secretary has proven that
an
employer’s
safety program was inadequate so that the employer is deemed to have
constructive knowledge of a violative condition. See
Burford’s Tree, Inc. , 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010)
(noting that the Commission has considered the “same factors in evaluating both an employer’s constructive knowledge and the merits of an employer’s unpreventable conduct affirmative defense”),
aff’d , 413 F. App’x 222 (11th Cir. 2011) (unpublished);
S. Hens, Inc.
v. OSHRC , 930 F.3d
at
678
(noting that “the UEM inquiry often overlaps considerably with the main violation inquiry”).
Thus,
Commission
case law
that assesses the adequacy of an employer’s safety program
for purposes of the “employer knowledge” element of the Secretary’s burden of proof
may inform
analysis of
an asserted
unforeseeable employee misconduct defense.
14 The
Secretary
argues
that
EWD’s
work rules
were
inadequate because
EWD did not have a rule that required a safety monitor to
utilize
some form of fall protection. (Sec’y
Br. 18-19). However,
the Secretary
effectively abandoned this argument in his reply brief
by virtue of having
withdrawn
his contention
the employee
exposure element of the Secretary’s burden of proof had been established by
Leach’s asserted
exposure
to a fall hazard while
he was
acting as the designated safety monitor. (Sec’y Reply Br. 7,
n.7).
15 The parties
have stipulated
that the
Secretary’s
classification of the alleged violation
as “serious”
and the Secretary’ s
proposed penalty are appropriate. ( Joint
Pre-Hr’g
Statement
at 6 ) . Thus, if
the
determination herein that
EWD had established the affirmative defense
were to be reversed ,
remand to the undersigned would be unnecessary.
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