Caretti, Inc.

Plain-English summary

A Caretti apprentice bricklayer climbed onto an unguarded school entrance canopy 11 feet above the ground and laid brick without fall protection. The superintendent had assigned him work below the canopy and had directed another crew to add a second scaffold stage that would provide protection for the upper work. The employee worked alone in an area that could not be seen from the rest of the site, and the superintendent had found no violations during his morning inspection. The judge found that Caretti did not know and could not reasonably have anticipated that the employee would disregard instructions and climb onto the canopy. Caretti also proved unpreventable employee misconduct through written rules, training, inspections, and prompt discipline. The serious citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The serious unprotected-edge citation was vacated.
• Key point: The employer was not liable for an employee's unauthorized, concealed departure from a communicated and enforced fall-protection program.

Full text (OSHRC public release)

Caretti, Inc., Docket No. 04-0865

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 04-0865

CARETTI, INC.,

Respondent.

APPEARANCES:

Tracy Schwab, Esq.                                               Thomas S. Beckley, Esq.

U.S. Department of Labor                                     Beckley & Madden

Philadelphia, Pennsylvania                                    Harrisburg, Pennsylvania

For the Complainant.                                             For the Respondent.

BEFORE:       Administrative Law Judge William C. Cregar

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (“the Act”) and has been heard and decided pursuant to Subpart M of
the Commission’s Rules of Procedure, 29 U.S.C.§ 2200.200 et seq.

Caretti, Inc. (“Caretti”) is a masonry contractor. On April 19, 2004, a Compliance
Officer (“CO”) from the U.S. Occupational Safety and Health Administration (“OSHA”)
inspected Caretti’s work site, a school under construction, in New Oxford, Pennsylvania. As
a result of the inspection, OSHA issued a citation alleging a serious violation of a
construction safety standard, 29 C.F.R. § 1926.501(b)(1). Caretti timely contested the
citation, and a hearing was held in Harrisburg, Pennsylvania on December 2, 2004. No
affected employees sought party status. For the reasons below, I dismiss the citation.

Jurisdiction

At all times relevant to this action, Caretti maintained a principal place of business at
4590 Industrial Park Road, Camp Hill, Pennsylvania, where it was engaged in the business
of masonry construction. (Tr. 5). The parties have stipulated that Caretti was engaged in
interstate commerce. (Tr. 60). I conclude that Respondent is an employer within the meaning
of section 3(5) of the Act. Accordingly, the Commission has jurisdiction over the parties and
the subject matter.

Statement of Facts

On April 19, 2004, Caretti was the masonry contractor on a multi-employer work site
involving the construction of Conawego School in New Oxford, Pennsylvania. Caretti
employs at least 200 employees, but, on the day of the inspection approximately 30
employees were working at the Conawego School site. Caretti has a written safety policy that
it distributes to employees. See Exh. R-1.

Paragraph 3.m. of the policy states: “All workmen
are required to conform to all safety regulations when working outside the perimeter safety
cable or guardrails, including use of a safety belt and harness.” Caretti also has a cumulative
disciplinary policy that permits the termination of an employee after the third notification.
Supervisors have the authority to terminate an employee on the spot if the violation is
sufficiently serious, and this authority includes issuing the employee his final paycheck; in
extreme cases, supervisors have shut down an entire operation. Caretti maintains a third-party
inspection company, and employees are required to attend safety courses, including courses
on fall protection. See Exh. R-3. Employees also attend weekly “toolbox talks,” during which
a selected safety topic is discussed, and fall protection is among the topics that have been
addressed at these sessions. In 2003, Caretti won the Outstanding Safety Award for
Contractors. It also has a low MOD score of 0.31.

(Tr. 35, 38, 65-73, 83-84, 88-89, 99, 101,
119-21).

At all relevant times, Barton Orndorff was Caretti’s superintendent at the site. His
duties included responsibility for the enforcement of safety standards and conducting the
weekly toolbox talks. Twice a day, Mr. Orndorff conducted “walkarounds” of the site to
check for safety violations; the first walkaround took place at 7.a.m. and the second after
lunch. On April 19, 2004, Mr. Orndorff made his usual inspection between 7 and 8 a.m., and
he found no safety violations. (Tr. 32, 85-88, 102-03, 114).

On the morning of April 19,2004, Mr. Orndorff assigned an apprentice bricklayer,
Bruce Claybaugh, to brick over two metal plates welded to I-beams projecting out from a
brick wall (the gymnasium wall) on the side of the school building. See Exh. R-8. These
areas were below a 4-by-8-foot canopy projecting from the brick wall; the canopy was 11 feet
above the ground, and it had no guardrails. A third area requiring bricking was located on the
wall above the canopy. Mr. Orndorff did not instruct Mr. Claybaugh to brick the third area;
he did, however, instruct another crew to construct a second stage to an existing scaffold
located below the canopy. Had it been assembled, the second stage would have provided
guardrails for the canopy; indeed, fall protection was its purpose. (Tr. 31, 91, 96, 112-14,
122-24, 133).

Mr. Claybaugh was working alone on the morning of April 19, 2004, and the other
Caretti employees were working either inside the building or on another side of the building.
Mr. Claybaugh’s activities could not be observed unless the observer happened to be outside
of the gymnasium wall on which Mr. Claybaugh was working. (Tr. 97; Exh. R-8).

Ralph Stoehr is the OSHA CO who conducted the inspection, and on April 19, 2004,
he arrived at the Conawego School site sometime between 10 and 11 a.m. for that purpose.
He first visited the trailer of J.C. Orr, the contract manager at the site.

After discussing the
purpose of his visit with J.C. Orr’s superintendent, and after being informed about the
number and types of prime contractors on the site, the CO began a walkaround inspection in
the company of J.C. Orr’s superintendent. (Tr. 20-21).

During the course of the inspection, CO Stoehr met Mr. Orndorff, who also joined
him in his inspection. While walking with Mr. Orndorff, the CO observed Mr. Claybaugh
working on the canopy, laying brick. He asked Mr. Orndorff if he could identify the
employee, and Mr. Orndorff replied that he was an apprentice Caretti employee. The CO
began videotaping the employee working on the canopy at 11:11 a.m. He pointed out to Mr.
Orndorff that no fall protection had been provided for that employee, and, at some point
during this exchange, Mr. Orndorff responded that, while he knew it was required for
scaffolds, he was unaware that fall protection was required for platforms like the canopy. (Tr.
23-24, 45; Exh C-3).

Exhibit C-3, the CO’s videotape, shows Mr. Claybaugh performing masonry work
while standing on the canopy, and no fall protection, such as guardrails or a harness and
lanyard, is evident. Exhibit C-3 also shows a scaffold with planks below the canopy, with the
planks extending beyond the canopy; further, the parts necessary to raise the scaffold to the
level of the canopy are shown propped up next to the building. (Tr. 32, 36, 47, 130).

Mr. Orndorff did not instruct Mr. Claybaugh to get off of the platform; however, he
did instruct the crew immediately to erect the second stage of the scaffold. In addition, later
that day, Mr. Orndorff gave Mr. Claybaugh a written “First Notice.” Exhibit R-2, the notice,
states: “Employee, accessed scaffold without proper handrail, toe boards or fall protection,
without proper authorization.” Mr. Claybaugh did not contest the notice, nor did his union
make any effort to contest the disciplinary action. At the hearing, Mr. Claybaugh credibly
testified that he “just wasn’t thinking.” He was aware that he was violating his employer’s
safety requirements and that, in hindsight, he should have waited for the laborers to complete
the second stage of the scaffold before bricking up the hole on the brick wall above the
canopy. (Tr. 33, 113-14, 125-28).

On May 3, 2004, OSHA issued to Caretti a Citation and Notification of Penalty; the
citation alleged a serious violation of the above-noted construction safety standard and
proposed a penalty in the amount of $2,275.00. See Exh. C-2.

Discussion

The cited standard, 29 C.F.R. § 1926.501 (b)(1), provides as follows:

Unprotected sides and edges. Each employee on a walking/working surface
(horizontal and vertical surface) with an unprotected side or edge which is 6
feet (1.8 m) 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 citation alleges a violation of the above standard, as follows:

East side of the school - Employer was laying brick from the roof of an
entrance way into the school building that was eleven feet above ground with
no fall protection, on or about April 19, 2004.

To establish a violation of a standard, the Secretary must show by a preponderance
of evidence that: 1) the cited standard applies; 2) the standard was not met; 3) employees had
access to the violative condition; and 4) the employer had actual knowledge of the violative
condition or, with the exercise of due diligence, could have known of the violative condition.
Astra Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in part,
remanded in part , 681 F2d 69 (1 st Cir. 1982). The Secretary has demonstrated the first three
criteria. The standard applies to the canopy, a walking/working surface with an unprotected
side or edge 11 feet above the next level.

Further, Mr. Claybaugh’s activities satisfy the
second and third criteria, in that an employee of Caretti was on the canopy without having
any type of fall protection. However, the fourth criteria has not been satisfied.

The Secretary has not established that Caretti had actual knowledge that Mr.
Claybaugh was on the canopy. As noted above in the Statement of Facts, the canopy could
not be seen either by other employees or by Mr. Orndorff unless they were physically present
on the outside of the gymnasium wall, and there is no evidence that Mr. Orndorff or any
other Caretti employee was in a position to observe Mr. Claybaugh prior to the CO’s
inspection. In addition, I credit the testimony of both Mr. Orndorff and Mr. Claybaugh that
the latter was not instructed to climb up on the canopy.

(Tr. 96, 122, 125-26, 133).

I further conclude that at the time the CO observed him, Caretti could not have
reasonably anticipated that Mr. Claybaugh would be working on the canopy without fall
protection. Caretti had promulgated written safety rules, and Mr. Orndorff was an
experienced supervisor who conducted weekly training programs that included discussions
focused on fall protection. He had conducted a walkaround safety inspection earlier that
morning and had discovered no safety violations, and it is unreasonable to expect a
supervisor to observe every employee every minute of the day. Mr. Orndorff did not tell Mr.
Claybaugh to climb up on the canopy, and I credit Mr. Claybaugh’s testimony that he
knowingly disregarded a safety rule when he climbed up on the canopy without having been
instructed to do so. (Tr. 96, 122, 125-26, 133). Moreover, Mr. Orndorff had arranged for
other employees to add another level to the existing scaffold. Indeed, the first stage of a
scaffold was in place below the canopy and the necessary parts to erect the second stage were
leaning against the gymnasium wall. These facts are strong circumstantial evidence that
Caretti was intending to erect a second level on the existing scaffold, and a reason for adding
a level to the existing scaffold would have been to provide fall protection for anyone working
on the canopy. (Tr. 91, 96, 112-14, 124). Finally, Mr. Orndorff imposed discipline on Mr.
Claybaugh later that day. Mr. Claybaugh credibly testified that this “First Notice” was
deserved, and the prompt discipline lends additional support to Caretti’s contention that it
consistently enforces its safety rules.

Even assuming that the Secretary proved all of the elements of her case, Caretti would
nonetheless prevail because it has established the affirmative defense of unpreventable
employee misconduct. To demonstrate this defense, the employer must show: 1) that it has
established work rules designed to prevent the violation; 2) that it has adequately
communicated these rules to its employees; 3) that it has taken steps to discover violations;
and 4) that it has effectively enforced the rules when violations have been discovered. Jensen
Constr. Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979). See also American Sterilizer
Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997). The record in this case establishes all
four elements. As set out in the Statement of Facts, supra , Caretti had established written
work rules designed to require fall protection, employees attended safety courses, and fall
protection was one of the topics discussed at the company’s toolbox talks. In addition, daily
inspections were conducted to discover safety violations, and Caretti’s supervisors had the
authority to impose discipline for safety violations, as illustrated by the fact that Mr.
Claybaugh was promptly disciplined for having climbed up on the canopy without fall
protection. Finally, Mr. Claybaugh’s testimony that he was on the canopy without being
directed to do so and that he knew that fall protection was required establishes both his
misconduct and Caretti’s inability to foresee and to prevent it.

For all of the foregoing reasons, Item 1 of Serious Citation 1 is VACATED.

ORDER

1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.501(b)(1), is
VACATED.

/s/

William C. Cregar

Judge, OSHRC

Dated: February 7, 2005

Washington, D.C.