Erickson Air-Crane, Inc.

Plain-English summary

Two Erickson employees repaired a helicopter rotor blade stored on top of a fuel tanker truck during high winds. A gust lifted the blade-box lid and caused one employee to fall about ten feet, sustaining serious injuries. The judge affirmed a general-duty-clause citation based on Erickson's policy requiring the blade box to be lowered before maintenance. The Commission held that this policy was not identified as an abatement method in the pleadings and the parties had not consented to try that theory. It also found that OSHA's rolling-stock enforcement memorandum did not give fair notice that fall-protection equipment was required on this tanker. Because the Secretary did not establish a properly noticed feasible means of abatement, the citation was vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious general-duty-clause citation and $4,500 penalty were vacated.
• Key point: A general-duty-clause citation cannot be sustained on an untried abatement theory, and employers must have fair notice when OSHA guidance appears to exclude the cited equipment requirement.

Full text (OSHRC public release)

ERICKSON AIR-CRANE, INC.,Docket No. 07-0645

Walter, J. David
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EN-US
X-NONE
X-NONE

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
Docket No. 07-0645

ERICKSON
AIR-CRANE, INC.,

Respondent.

ON BRIEFS:

Lee Grabel , Attorney; Charles F. James, Counsel
for Appellate Litigation; Joseph M. Woodward, Associate Solicitor; Gregory F.
Jacob, Solicitor; U.S. Department of Labor, Washington, DC

For the Complainant

George W. Goodman; Cummins, Goodman, Fish, Denley
& Vickers, P.C., Newberg, OR

For the Respondent

DECISION

Before: ROGERS, Chairman; and ATTWOOD, Commissioner.

BY THE COMMISSION:

On review before the Commission is a decision by former Administrative Law
Judge James H. Barkley in which he affirmed a citation alleging that Erickson
Air-Crane, Inc. ("Erickson") violated the general duty clause,
section 5(a)(1) of the Occupational Safety and Health Act of 1970
("Act"), 29 U.S.C. �� 651-678, by exposing its employees to a fall
hazard when they were working on top of a fuel tanker truck. The judge found
that although the Secretary did not prove that fall protection equipment was a
feasible means of abatement, an Erickson work policy that had not been followed
here was a feasible abatement method. For the following reasons, we conclude
that Erickson lacked fair notice of an obligation under the general duty clause
to provide fall protection equipment, and that the issue of whether Erickson's
work policy constituted a feasible means of abatement was not properly tried. (1) Accordingly, we reverse the judge's decision and
vacate the citation.

BACKGROUND

Erickson is an Oregon-based company that provides helicopter lifting
services for several industries, including construction, logging, and
firefighting. At a worksite in Kearney, Nebraska, Erickson stationed a fuel
tanker truck on the premises to refuel its helicopters and stored spare
helicopter blades in boxes on top of the tanker truck. On March 1, 2007,
Erickson suspended its helicopter-lifting services at this worksite due to high
wind conditions. During the suspension period, an Erickson foreman instructed
two employees to go on top of the tanker truck and repair the spare main rotor
blade. While the employees were repairing the blade, a gust of wind blew the
lid of the rotor blade box up, causing one employee to fall from the tanker
truck to the ground ten feet below. As a result of the
fall, the employee sustained serious injuries.

It is undisputed that the foreman's instructions were contrary to an
Erickson work policy that requires employees to remove the blade box from the
top of the tanker truck before performing any maintenance on the blade. Under
this policy, two employees are to climb on top of the tanker truck and prepare
the box--which together with the blade weighs 400 to 500 pounds--for removal to
the ground by a crane, boom truck, or forklift. Then one employee is to climb
off the tanker truck before the box is removed, while the other employee is to
remain on top to help guide the box as it is lowered. Once maintenance is
complete, employees are to reverse the process to return the blade box to the
top of the tanker truck. Erickson does not require employees to use fall
protection while they are on top of the tanker truck.

After the accident, OSHA conducted an inspection and issued Erickson a
citation alleging a serious violation of the general duty clause based on the
exposure of Erickson's employees "to a fall hazard . . . while
working on top of the tanker trailer to perform maintenance . .
. without the use of fall protection." In the citation, the Secretary
listed several methods of abatement that involve the installation and use of
fall protection equipment. The judge rejected these methods as infeasible, but affirmed the general duty clause violation
based on his determination that Erickson's work policy, if it had been properly
communicated and enforced, would have materially reduced the recognized fall
hazard.

DISCUSSION

Section 5(a)(1) of the Act mandates that each employer "furnish to each
of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees." 29 U.S.C. � 654(a)(1).
To establish a violation of the general duty clause, the Secretary must show
that: (1) a condition or activity in the workplace presented a hazard; (2) the
employer or its industry recognized the hazard; (3) the hazard was likely to
cause death or serious physical harm; and (4) a feasible means existed to
eliminate or materially reduce the hazard . Pegasus Tower , 21
BNA OSHC 1190, 1191, 2005 CCH OSHD � 32,861, p. 53,077 (No. 01-0547, 2005).

On review, Erickson does not dispute that requiring an employee to repair a
spare rotor blade from the top of a tanker truck is a recognized fall hazard
that is likely to cause death or serious injury. Thus, the only issue before us
is whether the Secretary established the fourth element of her burden of
proof--a feasible means of abatement.

I. Erickson's Work Policy

Erickson claims that the judge erred in relying on its work policy to affirm
a violation because the only means of abatement proffered by the Secretary in
the citation related to the use of fall protection equipment; the use of
Erickson's policy as a means of abatement was neither asserted nor tried. The
Secretary urges the Commission to affirm the judge, and maintains that the
citation provided Erickson with reasonable notice that communicating and
enforcing this policy served as a feasible means of abatement.
(2) Further, she contends that Erickson consented to try this issue
under Federal Rule of Civil Procedure 15(b)(2) (3)
by raising the affirmative defense of supervisory misconduct. We disagree.

It is well-settled that pleadings are to be liberally construed and easily
amended. General Dynamics Land Sys. Div. , 15 BNA OSHC 1275,
1279-80, 1991 CCH OSHD � 29,467, p. 39,751 (No. 83-1293, 1991) (citations
omitted). As long as fair notice is afforded, an issue
litigated at the hearing may be decided by the judge even if the issue is not
explicitly raised in the pleadings. National Realty & Constr. Co. v.
OSHRC , 489 F.2d 1257, 1264 (D.C. Cir. 1973) (finding that ambiguity may be
cured if the correct formulation is litigated at the hearing with fair notice
to the employer). However, an 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. , 11 BNA OSHC at 2129, 1984-85 CCH OSHD
at p. 34,499. "Consent [will] be found only when the
parties � 'squarely recognized' that they were trying an unpleaded issue." NORDAM Group , 19 BNA OSHC
1413, 1414-15, 2001 CCH OSHD � 32,365, p. 49,684 (No. 99-0954, 2001)
(citing Armour Food Co. , 14 BNA
OSHC 1817, 1824, 1987-90 CCH OSHD � 29,088, p. 38,885 (No. 86-247, 1990), aff'd ,
37 F. App'x 959 (10th Cir. 2002) (unpublished).

Here, it was the judge who first identified the use of Erickson's work
policy as an abatement method in his decision, not the Secretary. Only on
review does the Secretary now claim that this policy, if properly implemented,
constitutes a feasible means of abatement. Indeed, the citation and complaint
specifically describe the violation as " employees .  . . exposed
to a fall hazard .  . . without the
use of fall protection," and the listed abatement methods all relate to
the use of fall protection equipment, not Erickson's policy.
(4) And the policy itself makes no mention of fall protection
equipment. Thus, we find that the pleadings did not put Erickson on notice that
the communication and enforcement of its work policy was at issue.

We also reject the Secretary's claim that Erickson consented to try this
issue by asserting the affirmative defense of supervisory employee misconduct
in its first Amended Answer. (5) That pleading
was superseded by its second Amended Answer, which Erickson filed "to
clarify the affirmative defenses asserted in its [first] Amended Answer,"
and which omitted supervisory misconduct from a revised list of affirmative
defenses. Ferdick v. Bonzelet ,
963 F.2d 1258, 1262 (9th Cir. 1992) (noting "well-established doctrine
that an amended pleading supersedes the original" and "the original
pleading [then] no longer performs any function and is 'treated thereafter as
non-existent'") (citations omitted); Armstrong v. Davis , 275 F.3d
849, 878 n.40 (9th Cir. 2001) (same), cert. denied , 537 U.S. 812
(2001). (6)

Under these circumstances, we conclude that whether Erickson's work policy
constituted a feasible means of abatement was never "explicitly raised in
the pleadings" nor did the parties consent to try this unpleaded
issue.

II. Fall Protection Equipment and Training

Turning to the specific fall protection measures identified by the Secretary
as feasible means of abatement in the citation, Erickson maintains that based
on guidance provided in a 1996 OSHA Enforcement Memorandum
("Memorandum"), it lacked notice that fall protection was required
under the circumstances at issue. (7) In
general, "an employer cannot be held in violation of the Act if it fails
to receive prior fair notice of the conduct required of it." Miami
Indus., Inc. , 15 BNA OSHC 1258, 1261, 1991 CCH OSHD � 29,465, p.
39,739 (No. 88-671), aff'd in part, set aside in part on other grounds ,
983 F.2d 1067 [15 BNA OSHC 2025] (6th Cir. 1992) (unpublished table); see
Gen. Elec. Co. v. EPA , 53 F.3d 1324, 1328 (D.C. Cir. 1995) (holding
that penalty cannot be sustained unless regulated party had notice of
interpretation). For the following reasons, we find that Erickson lacked the
requisite notice.

In 1990, OSHA proposed adding a "scope and application" provision
to the Walking and Working Surfaces ("Working Surfaces") standard, 29
C.F.R. pt. 1910 subpart D. (8) In proposing this
new provision, OSHA explained that the standard as revised would "not
apply to surfaces that are an integral part of self-propelled, motorized mobile
equipment . . . ." Id. Six years later, OSHA
issued the Memorandum that the parties rely on here--entitled "Enforcement
of Fall Protection on Moving Stock"--in order "to clarify the
Agency's enforcement policy relating to fall hazards from the tops of 'rolling
stock,' such as rail tank or hopper cars and tank or hopper trucks or
trailers." (9) The Memorandum states that:
(1) the 1990 Subpart D proposal "explicitly excludes rolling stock from
coverage"; (2) as a consequence of the 1990 proposed rule change, OSHA's
"enforcement policy . . . is that falls from rolling
stock . . . will not be cited under the [current Working Surfaces
standard]"; and (3) it "would not be appropriate to use the personal
protective equipment standard, 29 C.F.R. � 1910.132(a), to cite exposure
to fall hazards from the tops of rolling stock, unless employees are working
atop stock that is positioned inside or contiguous to a building or other
structure where installation of fall protection is feasible." (10) Although the Memorandum also states that a
citation could be issued under the general duty clause "where feasible
means exist to eliminate or materially reduce the [fall] hazard," the
abatement examples listed are limited to methods of reducing fall
exposure--none of them involve the use of fall protection equipment. (11) In short, the policy described in the
Memorandum regarding the enforcement of subpart D, the PPE standard, and the
general duty clause as applied to tanker trucks that are not adjacent to a
building or structure is consistent--the use of fall protection equipment is
not considered feasible and thus, not required under any one of these
provisions.

Applying this OSHA enforcement policy here, the Secretary argues that the
Memorandum's reference to rolling stock "positioned inside or contiguous
to a building or other structure where installation of fall protection is
feasible"--the one specific circumstance identified in the Memorandum
where fall protection on rolling stock is required--put Erickson on notice that
it had to provide fall protection under the circumstances at issue. According
to the Secretary, Erickson's tanker truck is unique because it has brackets that
hold the blade box on, which could also be used to secure fall protection
equipment. Her argument is that Erickson should have realized that, so
equipped, its tanker truck is analogous to rolling stock "located inside
or contiguous to a .  . . structure"
that can support fall protection equipment. (12)

We disagree, and find that the Memorandum did not provide such notice,
particularly considering (1) its broad exemption of all rolling stock from the
fall protection standards, limited only by the very specifically described
circumstance regarding rolling stock located inside or next to a building or
structure, which is inapplicable here, and (2) the indication that under the
general duty clause, the agency only requires administrative measures that
reduce fall exposure, which are clearly distinct from the fall protection
methods sought here by the Secretary. In these circumstances, we find that
Erickson did not have notice of any duty to use fall protection equipment or
provide the related training with respect to its tanker truck. See Miami
Indus., Inc. , 15 BNA OSHC at 1262-64, 1991 CCH OSHD at p. 39,739 (finding
lack of notice where employer relied on OSHA's prior approval of abatement
method).

Accordingly, we conclude the Secretary failed to establish a feasible means
of abatement, and therefore vacate the citation.

ORDER

We vacate the citation alleging a violation of section 5(a)(1) of the Act.

SO ORDERED.

/s/                                                        

Thomasina V. Rogers

Chairman

/s/                                                        

Cynthia L. Attwood

Commissioner

Dated:
  March 2, 2012

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 07-0645

ERICKSON
AIR-CRANE INCORPORATED,

Respondent .

APPEARANCES:

For the Complainant:

Andrea Christensen Luby ,
Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City, Missouri

For the Respondent:

George W. Goodman, Esq., Cummins Goodman Fish
Denley & Vickers PC, Newberg, Oregon

Before: Administrative Law Judge: James H. Barkley

DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970
(29 U.S.C. Section 651-678; hereafter called the "Act").

At all times relevant to this action, Respondent, Erickson Air-Crane
Incorporated (Erickson), a helicopter heavy-lift company, was an employer
engaged in a business affecting commerce, and was subject to the requirements
of the Act.

On March 1, 2007[redacted], an Erickson employee, fell, or was blown, from the
top of a fuel tanker truck while performing assigned maintenance on a rotor
blade stored in a box on top of the tanker (Tr. 127-29, 155 )
. Following the accident, the Occupational Safety and Health
Administration (OSHA) instituted an investigation of the incident. At OSHA's
completion of its investigation, Erickson was issued a citation alleging
violations of �5(a)(1) of the Act. By filing a timely notice of contest
Erickson brought this proceeding before the Occupational Safety and Health
Review Commission (Commission). A hearing was held in Denver, Colorado on
December 6, 2007. Briefs have been submitted on the issues, and this matter is
ready for disposition.

Alleged Violation of �5(a)(1)

Serious citation 1, item 1 alleges:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970:

Facility located at Kearney Regional Airport, Kearney, NE - The employer is
not furnishing employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious
harm to employees in that employees are exposed to the hazards of falls when
walking/working on the tops of tractor trailer tankers.

Specifically, on March 1, 2007, and at times prior to, employees were
exposed to a fall hazard greater than four (4) feet above a lower level, while
working on the top of a tanker trailer to perform maintenance on spare
helicopter parts which are carried in a box on to pf the trailer, without the
use of fall protection. This vehicle is used in support of helicopter lifting
operations.

Among other methods, feasible and acceptable methods of abatement are:

1) Install approved fall protection equipment to prevent falls.

2) Train employees on the use of the fall protection and the hazards
associated with falls.

3) Develop work rules and disciplinary procedures prohibiting the
walking/working on tanker trailers without the use of fall protection.

4) Work with the manufacturers of the trailers utilized to ensure that fall
protection equipment is able to be in place and used
by employees accessing the tops of the trailers while working/walking on them.

Facts

Mark Lumry , construction manager with Erickson
Air-Crane (Tr. 27), testified that Erickson provides helicopter lift services
for the construction, logging and firefighting industries (Tr. 31). The tanker
involved in the March 1, 2007 accident is a support fuel truck for one of
Erickson's aircraft (Tr. 34; Exh . C-1, C-2). Erickson
has permanently affixed a tail rotor blade box on top of the tanker,
and stores a 30 to 40 pound tail rotor there (Tr. 35-36; Exh . Exh . C-1). A main rotor
blade weighing approximately 350 pounds is stored in a large aluminum box that
is strapped to brackets welded to the top of the tanker (Tr. 35-36, 49-50, 59; Exh . C-1). Employees regularly access the top of the fuel
tank to check fuel levels and occasionally to access the tail rotor box or to
remove the main rotor blade box (Tr. 38-40, 63, 91-93). A 33" walkway is
located on top of the tanker to the left of the main rotor blade box for those
purposes (Tr. 48, 82-84, 130). The walkway is approximately 10'10" +
3" above the ground (Tr. 171, 192-96, 219; Exh .
C-2). Jeff Pfeifer, Erickson's safety/risk manager (Tr. 98), acknowledged that
there is a risk of falling from the tanker (Tr. 137), and that if an employee
were to fall from the walkway, he would fall to the ground (Tr. 105-06). Prior
to working for Erickson, Pfeifer was a compliance officer with Oregon OSHA (Tr.
100). In that capacity he cited an employer for failing to protect an employee
on a chip hauling truck from fall hazards to which he was exposed while working
on the edge of the truck (Tr. 113-15). As a former OSHA Compliance officer
Pfeifer was aware that it was OSHA's policy to cite fall hazards from rolling
stock under 5(a)(1) "[w]here feasible means exist to eliminate or
materially reduce the hazard . . . . ." (Tr.
149-52; Exh . C-9).

Erickson employees are required to access the top of the tanker monthly or
daily to check fuel levels, depending on the job (Tr. 40; 67). Checking fuel
levels takes no more than 10 to 15 minutes (Tr. 40-43). Strapping and
unstrapping the main rotor blade box takes approximately 20 minutes (Tr. 93). Lumry testified that Erickson has a policy requiring
employees to remove the rotor box from the top of the tanker prior to
performing work on the rotor (Tr. 37). Lumry stated
he could not be sure whether the policy was reduced to writing prior to March
1, 1007, however, as he was not directly responsible for the maintenance
department (Tr. 37-38). In any event, the crew involved in the accident had
been assembled approximately a week prior to the accident,
and had not been formally trained in the correct procedures for working
on the rotor blade (Tr. 175).

Pfeifer testified that on March 1, 2007, Bob Kerr,[ redacted]
crew chief, or foreman, instructed [redacted] to replace a "tip cap"
on the main rotor while it was in the box on top of the tanker. According to
Pfeifer, the instruction violated company policy, which requires that all
maintenance on the main rotor take place on the ground (Tr. 131, 163).
Moreover, Pfeifer maintained, no one should have been up on the tanker on March
1 due to inclement weather, i.e. , high winds (Tr. 135, 158, 161-62).
After the accident, Erickson's director of field maintenance had a
"lengthy conversation with Mr. Kerr" about his "poor
decision" to send [redacted] up on the tanker (Tr. 135). Lumry told Kerr he made "a very bad decision"
from which he needed to learn (Tr. 69). Pfeifer testified the company policy
prohibiting working on the rotor without removing it and its box from the top
of the truck was not written at the time of the accident, though the
prohibition has since been reduced to writing (Tr. 159-62). Pfeifer believed
the policy had been verbally communicated to Bob Kerr (Tr. 163).

Employees do not utilize fall protection while they are working atop the
tanker (Tr. 44). Lumry testified that in the 15 years
he has been with Erickson no employee has had an accident or a near miss while
working on top of the trailer (Tr. 45, 72). Lumry has
never seen guard rails permanently installed on any fuel tank truck (Tr. 68,
70-71), or seen any of Erickson's competitors' employees using fall protection
on top of their trucks (Tr. 71).

George Warren, Vice President of Safety with Columbia Helicopters, a
competitor helicopter heavy-lift company (Tr. 326, 328), testified that none of
Columbia's fuel trucks have fall protection affixed to the top of the trucks
(Tr. 331). Warren was not aware of any fuel truck in the helicopter heavy-lift
industry equipped with permanent fall protection (Tr. 331). Warren attends
meetings of the Helicopter Association International, where safety issues in
the helicopter industry are discussed (Tr. 331-32). Warren did not recall any
instance where fall protection on fuel tanks was discussed (Tr. 332). Though
Columbia's facilities have been inspected by OSHA over the last five years,
none have ever been cited for failing to use fall protection (Tr. 334). Columbia
employees have never been injured or experienced any near misses due to their
failure to utilize fall protection (Tr. 334).

Occupational Safety and Health Compliance Officer (CO) Michael Connett testified that he had no reason to believe Erickson
management had identified a fall hazard associated with working on the walkway
of the tank truck (Tr. 198, 203). Connett had no
evidence that any other similarly situated employers identified working on top
of tank trucks as a hazardous activity requiring fall protection (Tr. 198-200,
203). Connett testified the issuance of this citation
was based on his knowledge of a single citation issued to an employer failing
to utilize fall protection on a flatbed trailer (Tr. 201-04).

Matthew Burkart, a consulting engineer with Aegis Corporation since 1975
(Tr. 210-16), testified that it is feasible to provide fall protection for
employees working on tank trucks such as Erickson's (Tr. 221). Several means of
protection are available (Tr. 221). Fall restraint systems consisting of a belt
and 24-30" lanyard could be attached to a Latchway
fall restraint system affixed to the existing brackets on the tank truck at the
height of the rotor box (Tr. 221-27). Burkart stated that he examined the
existing brackets, which already support a dynamic load of approximately 400
pounds, the weight of the rotor and box (Tr. 252, 221-27). The brackets were
after welded to the tanker skin and have been in place for 15 years; the welds
appeared good and showed no signs of distress (Tr. 50-51, 59, 251-52, 255).
According to Burkart they would be more than sufficient to support a fall
restraint system capable of supporting 250 to 300 pounds (Tr. 221-26, 230, 256,
259). Burkart also provided documentation describing collapsible guardrails
(Tr. 235; Exh . C-11), and a tram system with an
extendible arm that attaches to the back of a trailer and allows an employee to
traverse the entire length of the trailer while tied off (Tr. 231, 33, 243-45; Exh . C-10).

Discussion

The top of rolling stock is generally not considered a work surface
requiring fall protection under the General Industry fall protection standards
at �1910 Subpart D - Walking-Working Surfaces (Tr.
111-12, 148-50; Exh . C-9). In an October 18, 1996
Standard Interpretation OSHA stated that new proposed fall protection standards
explicitly exclude rolling stock from coverage under the general industry fall
protection standards ( Exh . C-9, R-4). However, the
interpretation goes on to state that:

"Where feasible means exist to eliminate or materially reduce the
hazard, a citation can be issued for a Section 5(a)(1) violation. For example,
in the case of inclement weather such as icy conditions or heavy rains and
winds [employers] are responsible for guarding against workplace hazards. In
addition to making a determination as to whether the
tops of the rail cars are safe and free from hazards to allow employees to
perform their duties, the employers should also make an assessment of the employees's physical ability to perform the job and ensure
that employees have received adequate training to perform the job safely."

Because OSHA has excluded rolling stock from coverage under the fall
protection standards set forth in Subpart D, Erickson was correctly cited under
�5(a)(1). In order to prove a violation of section 5(a)(1) of the Act, the
Secretary must show that: (1) a condition or activity in the workplace
presented a hazard to an employee, (2) the hazard was recognized, (3) the
hazard was likely to cause death or serious physical harm, and (4) a feasible
means existed to eliminate or materially reduce the hazard. The evidence must
show that the employer knew, or with the exercise of reasonable diligence could
have known, of the violative conditions. Tampa Shipyards, Inc. , 15 BNA
OSHC 1533, 1991-93 CCH OSHD �29,617 (Nos. 86-360, 86-469, 1992).

Recognition of the Hazard. A recognized hazard is a
practice, procedure or condition under the employers' control that is known to
be hazardous either constructively, i.e ., by the industry in general, or actually, by the cited employer in particular.   Pelron Corporation , 12 BNA OSHC 1833,
1986 CCH OSHD �27,605 (No. 82-388, 1986). On this record it
is clear that Erickson actually recognized that working on the main
rotor while it remained in its box on top of the trailer constituted a hazard,
and that employees performing work atop the tanker could fall. Erickson's
safety manager, Pfeifer, a former Occupational Safety and Health Officer for
the state of Oregon, knew working atop rolling stock constituted a fall hazard
and was exempted from coverage under �1910's fall protection standards only
because conventional fall protection was generally deemed infeasible.
Erickson's policy, to remove the entire rotor box to the ground before work was
performed on the main rotor, was adopted because of the hazard
associated with opening the rotor box and working on the main rotor while it
remained on the top of the trailer.

There can be no question that Erickson recognized the fall hazard associated
with working on top of the cited tanker.

Likely to cause death or serious physical harm . As a result of his fall from the tanker, [redacted] suffered
ongoing head trauma, including significant memory loss (Tr. 130). There can be
no question that a fall from the cited tanker can result in serious physical
harm.

Feasibility. In order to show an
abatement measure's feasibility, the Secretary must show that the recommended
precautions are recognized by "knowledgeable persons familiar with the
industry as necessary and valuable steps for a sound safety program in the
particular circumstances existing at the employer's worksite." Cerro
Metal Products Division, Marmon Group, Inc., 12 BNA OSHC 1821, �27,579
(No. 78-5159, 1986). Burkart, the Secretary's expert, presented convincing
evidence that effective means of providing fall protection for workers
operating atop rolling stock exist and could be effectively utilized on
Erickson's fuel tanker. The Secretary did not show that knowledgeable persons
familiar with the helicopter heavy-lift industry generally recognized those
means are necessary elements of an effective safety program. The Secretary did
not produce any safety experts who were familiar with Erickson's heavy-lift
helicopter operations other than Mr. Burkart, who only became aware of the
operation following the March 1, 2007 accident. There was no evidence that,
prior to this accident, any employee in the industry had sustained injuries as a result of a fall from a support vehicle, or that any
employers or safety experts in the industry utilized, or believed it was
necessary to utilize fall protection during the performance of normal
operations, i.e. checking fuel levels (Testimony of Warren; Tr. 330).
Erickson's uncontradicted evidence suggests that Erickson is the only
heavy-lift operation that stores a rotor atop its fuel support tanker (Warren;
Tr. 335). That practice creates a safety hazard not common to the rest of the
helicopter heavy-lift industry, a hazard that Erickson was aware of and
attempted to address with administrative controls in the form of a prohibition
against working on the rotor until its box was safely removed to the ground.

Erickson's administrative controls may have been effective had they actually been communicated to its employees and enforced in
practice. It is clear, however, that Erickson's purported policies were not
followed on the day of the accident, and that Erickson could not reasonably
have relied on their being followed. The crew had not yet been trained to
remove the blade box from the tanker before working on the rotor. The
supervisor in charge, crew chief Kerr, specifically instructed the crew to
perform a tip cap replacement while the rotor was on top of the tanker,
contrary to the stated policy. Finally, even though Kerr's failure to follow procedures
resulted in a serious injury, the only discipline he received was a stern
rebuke.

Conclusion. Under these circumstances it must be found that
Erickson violated �5(a) (1) of the Act. Erickson recognized that working on the
rotor atop its tanker truck posed a fall hazard likely to cause death or
serious physical harm. Erickson itself identified administrative controls which
would, if utilized, have materially reduced the hazard. Erickson failed to
exercise reasonable diligence in ensuring the administrative controls it
devised were followed in that it failed to properly train its employees in the
proper means of working on the rotor. Since Complainant has proved by a
preponderance of the evidence that Erickson's rule, prohibiting working on the
rotor while it was on top of the tanker, if such a rule existed, was not
effectively communicated to its employees, the conduct of its crew chief is
properly imputed to Erickson. See Genesis Health Care Corp., 20 BNA
OSHC 2161, 2005 CCH OSHD �32,751 No. 03-0300, 2004) (the Secretary may prove
foreseeability by demonstrating the inadequacy of the employer's safety
program, training or supervision).

Penalty

In determining the penalty the Commission is
required to give due consideration to the size of the employer, the gravity of
the violation and the employer's good faith and history of previous violations.
The gravity of the offense is the principle factor to be considered. Nacirema
Operating Co ., 1 BNA OSHC 1001, 1972 CCH OSHD �15,032 (No. 4, 1972). In
determining the gravity of the violation, factors to be considered include: (1)
the number of employees exposed to the risk of injury; (2) the duration of
exposure; (3) the precautions taken against injury, if any; and (4) the degree
of probability of occurrence of injury. Kus -Tum
Builders, Inc. 10 BNA OSHC 1049, 1981 CCH OSHD �25,738 (No. 76-2644,
1981).

Erickson is a large employer with approximately 600 employees (Tr. 178). Two
employees were exposed to the cited hazard for approximately 30 minutes during
high wind conditions (Tr. 177). The probability of an accident occurring is
clearly high; one of the employees fell from the tanker, suffering serious head
injuries. Connett testified that Erickson had been
cited four times in the past four or five years, but
did not state the citations were either serious or related to the present
citation (Tr. 179). Erickson does have a written safety and health policy, and
employees charged with implementing that program (Tr. 178).

The Secretary's proposed penalty of $4,500.00 is appropriate and will be
assessed.

ORDER

1. Serious citation 1, item 1, alleging violation of �5(a)(1) is AFFIRMED
   and a penalty of $4,500.00 is ASSESSED.

/s/                                                        

James H. Barkley

Judge, OSHRC

Dated:
  February 11, 2008

FOOTNOTES:

1. Given our disposition of these issues, we need not
   address Erickson's argument that the citation to the general duty clause was
   preempted by specific standards promulgated under section 5(a)(2) of the Act,
   29 U.S.C. � 654(a)(2).

2. On review, the Secretary argues that a different
   Erickson work policy--prohibiting employees from being on top of the tanker
   trucks in high wind conditions--also constitutes a feasible means of abatement,
   and that Erickson violated the general duty clause by failing to communicate
   and enforce this policy. We decline to consider the Secretary's argument as it
   was not raised before the judge. See Commission Rule 92(c), 29 C.F.R.
   � 2200.92(c) ("[t]he Commission will ordinarily not review issues
   that the judge did not have the opportunity to pass upon"). We also note
   that the Secretary, who did not identify this work policy as a feasible means
   of abatement in the citation, makes no claim that Erickson consented to try the
   issue. See McWilliams Forge Co. , 11 BNA OSHC 2128, 2129, 1984-85 CCH
   OSHD � 26,979, p. 34,499 (No. 80-5868, 1984) (stating that the Secretary may
   amend a citation to include an unpleaded issue if
   parties consented to try the unpleaded issue).

3. Rule 15(b)(2) states:

For Issues Tried by Consent. When an issue not raised by
the pleadings is tried by the parties' express or implied consent, it must be
treated in all respects as if raised in the pleadings. A party may move--at any
time, even after judgment--to amend the pleadings to conform them to the
evidence and to raise an unpleaded issue. But failure
to amend does not affect the result of the trial of that issue.

Fed.R.Civ.P . 15(b)(2). See Commission
Rule 2(b), 29 C.F.R. � 2200.2(b)
("In the absence of a specific provision, procedure shall be in accordance
with the Federal Rules of Civil Procedure."); 29 U.S.C. � 661(g).

4. In her brief to the Commission, the Secretary asserts
   that the citation includes an example of an abatement method that does not
   involve fall protection equipment, quoting a portion of the second listed
   method: " '[t]rain employees. . .[on] the hazards associated with falls.'
   " However, the language omitted from this quotation directly contradicts
   the Secretary's point: "[t]rain employees on the use of the fall
   protection and the hazards associated with falls." (emphasis added).

5. The extent to which an employer's safety policy is
   communicated and enforced is an issue when an employer asserts the affirmative
   defense of unpreventable supervisory misconduct. See, e.g., Archer
   Western Contractors Ltd. , 15 BNA OSHC 1013, 1017, 1991 CCH OSHD � 29,317,
   p. 39,377 (No. 87-1067, 1991), aff'd , 978 F.2d 744 (D.C. Cir. 1992)
   (unpublished table).

6. The Secretary claims that Erickson's assertion of the
   supervisory misconduct defense nonetheless remained in the case. She relies on
   Erickson's failure to withdraw its motion to accept its first Amended Answer, and also on the judge simultaneously accepting that motion
   and its motion to accept the second Amended answer. These arguments lack merit.
   Erickson's second Amended Answer, which sought "to clarify the affirmative
   defenses asserted in its [first] Amended Answer," made explicit Erickson's
   intent to withdraw the supervisory misconduct defense identified in its first
   Amended Answer. Also, there is no practical significance to the judge having simultanously granted both motions rather than granting
   them in order. To give effect here to Erickson's failure to formally withdraw
   its first motion, or to nullify the judge's granting of the second motion based
   on the timing of his order, would inappropriately elevate form over substance. See
   Caterpillar Tractor Co. v. Int'l Harvester Co., 106 F.2d 769, 772 (9th
   Cir. 1939) (stating that Federal Rules of Civil Procedure "should be
   reasonably and not technically construed"); Riehl v. Nat'l Mut . Ins. Co. , 374 F.2d 739, 742 (7th Cir. 1967)
   (finding that procedural error "was but a minor irregularity of no
   consequence" and "[t]o permit [it] � to defeat the District
   Court's jurisdiction would be to elevate form over substance" ).

7. Erickson also contends that the judge erroneously
   limited the testimony of expert witness James Stanley, a former OSHA official,
   by precluding him from testifying about the notice OSHA provides to the
   regulated community in its interpretations and OSHA's duty not to mislead the
   regulated community as to safety obligations. However, we conclude the judge
   was correct in refusing to allow such testimony because it pertained only to
   legal conclusions. See J.C. Watson Co. , 22 BNA OSHC 1235, 1238 n.3,
   2004-09 CCH OSHD � 32,953, p. 53,876 n.3 (Nos. 05-175 & 05-0176, 2008)
   (determining the judge properly refused to permit expert testimony concerning
   conclusions of law); Greenleaf Motor Express Inc. , 21 BNA OSHC 1872,
   1876-77, 2004-09 CCH OSHD � 32,878, p. 53,212 (No. 03-1305, 2007) (upholding
   judge's exclusion of expert whose proferred testimony
   did not "address any factual issue that required scientific or technical
   expertise to understand").

8. Notice of Proposed Rulemaking for Walking and Working
   Surfaces, 55 Fed. Reg. 13,360, 13,396 (proposed April 10, 1990) (to be codified
   at 29 C.F.R. pt. 1910, subpart D).

9. In our disposition of this case, we do not question
   the parties' agreement that Erickson's tanker truck is covered by the terms of
   the Memorandum, but we note the Memorandum appears to use the term
   "rolling stock" differently than other OSHA pronouncements. See
   Notice of Reopening of the Rulemaking Record for Walking and Working Surfaces
   and Personal Protective Equipment ("PPE") (Fall Protection Systems),
   68 Fed. Reg. 23,528, 23,529-30 (proposed May 2, 2003) (to be codified at 29
   C.F.R. pt. 1910) ("Self-propelled, motorized mobile equipment includes
   tractor trailer trucks, tank trucks, hopper trucks and buses, while rolling
   stock includes covered and uncovered rail cars, tank cars, and
   trailers.").

10. Section 1910.132(d)(1) of the general industry PPE
    standard requires that employers "assess the workplace to determine if
    hazards are present, or are likely to be present, which necessitate the use of
    personal protective equipment (PPE)" and have employees use PPE if hazards
    are identified.

11. The listed examples address: (1) guarding against
    icy conditions, heavy rains and wind by determining if the tops of rail cars
    are free from such hazards; (2) assessing an employee's physical ability; and
    (3) providing adequate training.

12. We note that after the parties filed their briefs on
    review, OSHA issued a new proposed rule for walking/working surfaces in which
    it stated that the 1996 Memorandum "did not result in clear direction to
    the public or to OSHA's field staff" and that "the understanding of
    the [Memorandum] also varied among commenters" who were responding to a
    request for information on the feasibility of fall protection for rolling stock
    in 2003. Walking-Working Surfaces and Personal Protective Equipment (Fall
    Protection Systems), Proposed Rule, 75 Fed. Reg. 28862, 28867 (proposed May 24,
    2010).