Stark Excavation, Inc.

Plain-English summary

A Stark Excavation superintendent and two laborers stripped bridge forms without fall protection while exposed to a 14-foot, 10-inch drop to rocks below. The company did not dispute the unsafe condition but argued that the supervisor's lapse during a 10-to-15-minute task was unforeseeable misconduct. The judge credited Stark's written six-foot fall-protection rule, repeated project-specific training, documented discipline for prior safety violations, and frequent site inspections by management and the safety director. He also found that the supervisor had an excellent safety history and that all three workers received the prescribed written warning and unpaid suspension after the inspection. The fall-protection citation and proposed $7,000 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.501(b)(1) and 1926.503(a)(1)
• Outcome: The fall-protection item was vacated based on unpreventable supervisory misconduct; the training item had been withdrawn.
• Key point: Detailed rules, repeated communication, documented discipline, and regular monitoring can establish that a supervisor's isolated lapse was unforeseeable.

Full text (OSHRC public release)

                                                 United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                            1244 Speer Boulevard, Room 250
                                              Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Compla inant,

                             v.                                   OSHRC DOCKET NO. 07-1861

STARK EXCAVATION, INC.,
Respondent .

APPEARANCES:

     For the Co mpla inant:
              Lisa R. W illiams, Esq., U.S. Departm ent of L abor, Office of the Solicitor, 230 South Dearbo rn Stree t, 8 th
              Floor, Chicago, Ill. 60604

     For the Re spon dent:
              Julie O’Keefe, Esq., One Metropolitan Square, Suite 2600, St. Louis, MO. 63102

Before: Administrative Law Judge: James R. Rucker

                                          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”).
On November 6, 2007 the Secretary issued to Respondent, Stark Excavation, Inc. (“Respon­
dent”), a citation for serious violations of the Act. The citation alleged that Respondent failed to
comply with the standard published at 29 CFR §1926.501(b)(1)1 on the grounds that employees were
stripping forms on a bridge without using the required fall protection, exposing them to a 14 foot, 10
inch fall to the rock surface below. A penalty of $7000 was proposed for the violation. 2

         1
       The standard states that

§1926.501 Duty to have fall protection
(b)(1) 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.
2
The Secretary also alleged a violation of 29 CFR §1926.503(a)(1). However, at the
hearing, the Secretary withdrew the item and it is no longer before this Commission.
 FACTS
On October 17, 2007, OSHA compliance officer, William Hancock (“CO”) was driving on Rt.
24 in Mapleton, Illinois, when he notice a road crew exposed to a fall hazard while working on a
bridge. The CO stopped on the side of the road and met with Kevin Pribble, Respondent’s
superintendent for the project. In addition to Pribble, the crew consisted of two laborers, David Christy
and Matt Horn. (Tr. 20, Ex C-2). The crew was stripping wooden forms off the bridge so ironworkers
could install guardrails. (Tr. 24-25) They were working at the edge of the bridge without any fall
protection and were exposed to a 14 foot, 10 inch fall to the rocks below. (Tr. 24, 28) The employees
told the CO that this was a short duration job. (Tr. 25)
During the inspection, the CO reminded Pribble that, three weeks earlier, he stopped at another
bridge where Pribble and his crew were preparing to work and warned him of the need for fall
protection. (Tr. 25) No citations were issued at that time because the crew was only preparing to begin
their work and they were not exposed to a fall hazard. (Tr. 23)
Pribble testified that he should have been wearing fall protection, and that he never made a
conscious decision not to use it. Rather, because the job only took 10-15 minutes and the crew just
went to their knees and stripped off the forms, the need for fall protection just slipped his mind. (Tr.
121) However, the requisite safety equipment was on site and readily available. (Tr. 66, 132)
According to Pribble, when the CO showed up, “it was like brick in the face that I should have
complied.” (Tr. 121)
Respondent does not dispute that the employees were not using the required fall protection and
that they were exposed to a fall hazard. Rather, Respondent asserts the violation was the result of
unforeseeable supervisory misconduct.

                                    DISCUSSION
   To establish a violation of the Act, the Secretary must establish that the employer knew or,

with the exercise of reasonable diligence, should have known of the violation. Kokosing Constr. Co.,
21 BNA OSHC 1629, 1631 (No. 04-1665, 2006), aff’d 232 Fed. Appx. 510 ( 6th Cir. 2007). Where the
employer is represented on a worksite by a supervisory employee, the knowledge of the supervisor
can be imputed to the employer. Access Equipment Systems Inc., 18 BNA OSHC 1718, 1726 (No. 95­
1449, 1999). However, the employer can rebut the Secretary’s showing by establishing, as an
affirmative defense, that the violation was caused by the unforeseeable failure of the supervisor to
follow proper procedures L.E. Myers Co., 16 BNA OSHC 1037, 1041 (No. 90-945, 1993).

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To establish the affirmative defense of unpreventable employee misconduct, the employer
must show that it had a thorough safety program which was adequately enforced and communicated
and that the violative conduct was idiosyncratic and unforeseeable. The employer must also present
evidence concerning the manner in which it enforces its safety rules. Id. at 1040. When the alleged
misconduct is that of a supervisor, the proof of unpreventable employee misconduct is more rigorous
and the defense is more difficult to establish since it is the supervisor’s duty to protect the safety of
employees under his supervision. Archer-Western Contractors Lt. 15 BNA OSHC 1013, 1017 (No.
87-1067, 1991), petition for review denied, 978 F.2d 744 (D.C. Cir. 1992). In such an instance, the
employer must also establish that it took all feasible steps to prevent the accident, including adequate
instruction and supervision of its supervisory employee. Id.
Having reviewed the testimony and all relevant evidence, I conclude that Respondent has
established that the failure of Pribble and his crew to wear fall protection was the result of
unforeseeable supervisory misconduct.
The evidence clearly establishes that Respondent has a safety program that is both adequately
communicated to employees and enforced. When an employee is hired, he is required to certify that
he has received and understands the company safety rules. (Tr. 61, Ex. R-8) Rule #8 in that package
states that “Fall protection measures must be implemented by all employees working at unprotected
heights of 6'-0" or greater, when applicable by OSHA.” (Ex. R-8) Respondent couples its safety rule
with a “Fall Management Program” that, among other things, requires supervisors to analyze all
“elevated tasks” to determine fall protection needs and provide employees, before beginning work
activities, with safety instructions on the proper use, limitations and maintenance of fall protection
equipment. (Tr. 163, Ex. C-9)
The evidence also establishes that the rule was properly communicated to employees. For
example, fall protection was the topic at the weekly safety meeting of Sept. 6, 2007, conducted by
Kevin Pribble before the bridge project began. Handwritten on the line “Special topics for project”
was the statement: “100% tie off within 6' of leading edge.” (Ex. C-4) Similarly, a tool box meeting
conducted by Pribble on August 30, 2007 explicitly states that “the greatest danger during bridge
construction is the possibility of falling from one level to another.” (emphasis in original) (Ex. C-5)
Respondent’s corporate safety director, Wayne Clayton, testified that the heart of Respon­
dent’s program is the six foot rule, that requires the use of fall protection whenever an employee is
exposed to a fall potential of six feet or greater. (Tr. 163) Clayton also testified that whenever he visits

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a jobsite, he tries to talk to the laborers to determine their needs and to ensure that the job is
proceeding safely. (Tr. 165)
Furthermore, testimony demonstrates that employees understood the rule and the
consequences of noncompliance. Charles Christy testified that he was aware that fall protection was
to be used whenever there was a fall hazard (Tr. 67), and understood that the first failure to use fall
protection would result in being written up and a one-day suspension without pay; that a second
offense would result in a three-day suspension without pay, and that a third offense would lead to
termination3. (Tr. 63) He also testified that these penalties were well-known and discussed on every
job site. (Tr. 64)
Moreover, Pribble testified that fall protection was taken very seriously and that Respondent had a
zero tolerance policy for violations. (Tr. 108, 125) He never doubted that, if caught violating the rule,
he would face severe consequences, especially since he was a supervisor. (Tr. 111)

    The record further demonstrates that Respondent made serious efforts to enforce its safety

rules. Exhibit C-10 contains 24 safety citations given to employees for various safety infractions. Most
of these involved first offenses where the employee failed to wear a hard hat or safety glasses and
resulted in a written warning. One safety citation involved a third offense for not wearing safety
glasses for which the employee was disciplined with a written warning and a three day suspension
without pay (Ex. C-10, p. 5). Two other employees who violated safety rules a second time received
a written warning and a one day suspension without pay. (Ex. C-10, p. 19) Finally, on August 25, 2006
a supervisor was cited for failing to use fall protection when exposed to an 11-foot fall. Consistent
with its safety policy, the employee was disciplined for this first offense with a written warning and
a 24-hour suspension without pay. (Ex. C-10, p. 24) Finally, as a result of the instant violation, Pribble
and the other two employees were all disciplined according to the company safety policy and given
a written warning and a 24-hour suspension without pay. (Tr. 81)
While this evidence is sufficient to establish the defense of unpreventable employee
misconduct, Pribble was not a rank and file employee, but a supervisor. As noted supra, there is an
extra burden on an employer to establish that a supervisor engaged in unpreventable misconduct.
Central to this burden, the employer must demonstrate that it properly supervised the supervisor to

    3
     Lesser penalties were invoked for safety violations deemed less serious, such as the

failure to wear a hard hat or safety glasses.

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ensure that he was complying with its safety rules. Archer-Western Contractors Lt. 15 BNA OSHC
at 1017.
In this regard, Respondent has demonstrated that it regularly inspected the worksite to ensure
that all safety rules were followed. Jeremy Livengood, Respondent’s Peoria area manager, and
Pribble’s supervisor when on the job in his area (Tr. 55) testified that he visited Pribble’s worksite two
to three times each week to check on the job progress and safety. (Tr. 152) At these inspections, he
never saw any employee working without the requisite fall protection. (Tr. 153) He further testified
that he found Pribble to be a very safety conscious person who did not cut corners. (Tr. 154) He did
not expect that Pribble would allow his crew to work without fall protection. (Tr. 156).
Safety Director Clayton testified that he visited the worksite on four to five occasions. (Tr.
170) He described Pribble as a proactive person who was very safety conscious. He was impressed
with Pribble’s serious attitude toward safety and was always in compliance with the safety rules. (Tr.
170) This was supported by Christy, who testified that Pribble was a very safety conscious supervisor
who, until the inspection, never allowed his crew to work without fall protection when required. (Tr.
72) Indeed, Clayton testified that, after the inspection, Pribble was embarrassed and promised that it
would never happen again. (Tr. 187)
The Commission has recognized that “reasonable diligence” does not impose a requirement
for continuous, full-time monitoring. Stanley Roofing Co., 21 BNA OSHC 1462, 1464 (No. 03-0997,
2006). The record demonstrates that Pribble had an excellent safety history and commitment to safety.
Moreover, the numerous safety citations issued to employees support the conclusion that Respondent’s
degree of monitoring its worksites is adequate to detect unsafe work practices On these facts, I find
no basis to conclude that there were any circumstances that should have reasonably placed Respondent
on notice that more intensive monitoring was necessary. New York State Electric & Gas Corp., 19
BNA OSHC 1227, 1231 (No. 91-2897, 2000); on remand from New York State Elec. & Gas Corp. v.
Secretary of Labor, 88 F.3d 98 (2d Cir. 1996).
Finally, I note that the Secretary has not introduced any evidence that would establish that
Respondent’s safety program was, in any way, deficient. Accordingly, I hold that Respondent
established that the failure of Pribble and his crew to wear appropriate fall protection at the time of
the inspection was the result of unpreventable and unforeseeable supervisory misconduct.

                                            ORDER


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Accordingly, it is ORDERED that Citation 1, item 1a for violation of 29 CFR §1926.501(b)(1)
and the proposed penalty are VACATED.

                                               _______/s/___________________________
                                                          James R. Rucker
                                                          Judge, OSHRC

Dated: November 18, 2008
Denver, CO.

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