Southern Solar

Plain-English summary

A Southern Solar employee used a stepladder that did not extend three feet above the parapet used as the upper landing surface. The judge found that OSHA did not prove the company's lead worker knew or reasonably should have known how that ladder was being used. OSHA also cited Southern Solar for inadequate ladder training because the company lacked training records. That item was vacated because the standard did not require written documentation and the company presented testimony that it provided informal training.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1060(a)
• Outcome: Both the ladder-use and ladder-training items were vacated.
• Key point: OSHA must prove employer knowledge of improper ladder use, and missing training records alone do not establish a violation when the standard does not require written records.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104




Secretary of Labor,
   Complainant,
      v.                                                         OSHRC Docket No. 11-0308
Southern Solar Systems, Inc.,
   Respondent.

Appearances:

      Jennifer Booth, U. S. Department of Labor, Office of the Solicitor, Nashville, Tennessee
      For Complainant

      Larry J. Bradford, Pro Se, Huntsville, AL
      For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                      DECISION AND ORDER

      Southern Solar Systems, Inc. (Southern Solar), designs and installs solar electric systems.

Southern Solar was working at a construction site at 5576 Grove Boulevard, Hoover, Alabama, on
December 29, 2010, when Occupational Safety and Health Administration (OSHA) Compliance
Officer Jennifer McWilliams initiated an inspection of the construction site. As a result of
McWilliams’s inspection, on January 7, 2011, the Secretary issued a citation to Southern Solar
alleging one serious two-item grouped violation of the Occupational Safety and Health Act of 1970
(Act).1 Southern Solar denies that it violated the cited standards and contests the citation and
proposed penalty. This case was designated for the Commission’s Simplified Proceedings.
For the reasons that follow, Citation 1, items 1a and 1b are vacated.

1
The Citation and Notification of Penalty issued on January 7, 2011, was amended at the hearing to reflect the
correct inspection date in this case as December 29, 2010. Due to a typographical error, an incorrect date was placed
on the first page of the Citation and Notification of Penalty (Tr. 69).
 Jurisdiction
At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the
Commission pursuant to Section 10(c) of the Act. The parties also stipulated at the hearing that at
all times relevant to this action, Southern Solar was an employer engaged in a business affecting
interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 9).
Background
Southern Solar was one of several contractors on a jobsite located at 5576 Grove Boulevard
in Hoover, Alabama, where a BBA Compass Bank building was being constructed (Tr. 16).
Southern Solar was installing a solar panel system on the roof of the building under construction
(Tr. 92). Compliance Officer Jennifer McWilliams initiated an inspection at the jobsite after
observing from the road an aerial lift on the jobsite, as she was driving by. Pursuant to OSHA’s fall
protection emphasis program, McWilliams initiated an inspection to determine whether proper fall
protection was being utilized (Tr. 16-17).2 While on site, McWilliams observed a ladder going to
the upper roof and employees working on the roof. She determined the ladder did not meet OSHA’s
requirements (Tr. 17). The ladder she observed was a step ladder which did not extend 3 feet above
the upper landing surface. McWilliams determined the top of the parapet wall was the upper landing
surface because it was the first surface that an employee touches when coming off the ladder (Tr. 21,
24-25). An employee who used the step ladder for egress from the roof was exposed to a fall hazard
of approximately 12 feet (Tr. 33, 36). The employee using the step ladder at the time of the
inspection was Blake Bradford, an employee of Southern Solar (Tr. 82). Southern Solar’s lead
man, Doug Stevenson, also was observed by McWilliams using an extension ladder which extended
at least 3 feet above the upper landing surface (Tr. 22). Stevenson informed McWilliams that he
was the competent person on the jobsite (Tr. 97). As a result of her inspection, McWilliams
proposed the issuance of a citation for a violation of § 1926.1053(b)(1) for improper use of a ladder
on the jobsite.
After the onsite inspection, McWilliams followed up with Southern Solar and spoke with
Chris Shearburn about Southern Solar’s safety programs relating to portable ladders (Tr. 45).

2
The aerial lift observed by McW illiams was associated with another employer on the site and did not involve
Southern Solar.

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Shearburn asked to have until January 3, 2011, to produce the requested information (Tr. 46).
Southern Solar’s safety and health manual and available training documentation were e-mailed to
McWilliams on January 4, 2011, by John Conger (Tr. 46-47). Conger informed McWilliams that
Southern Solar did not have a training program specific to its company and that the information
provided to McWilliams was all the information Southern Solar had regarding training (Tr. 47-48).
The documents provided included the front page cover of four different pamphlets on fall protection
and ladder safety training (Tr. 47). McWilliams determined the information provided was
insufficient and proposed the issuance of a citation alleging a violation of § 1926.1060(a) (Tr. 48).
As a result of McWilliams’s inspection, the Secretary issued the citation that gave rise to the instant
case.
The Citation
The Secretary alleges that Southern Solar violated OSHA’s standards relating to ladders. To
prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence
that (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees had
access to the violative conditions; and (4) the cited employer had actual or constructive knowledge
of those conditions. Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No. 98-1748,
2000).
Item 1a: Alleged Serious Violation of § 1926.1053(b)(1)
The Secretary cited Southern Solar for a serious violation of § 1926.1053(b)(1), alleging that
portable ladders used to access an upper landing surface did not extend at least 3 feet above the upper
landing surface. It is the Secretary’s burden to establish whether the cited standard applies in this
case. Southern Solar was cited for violating a standard involving stairways and ladders. The citation
addresses the protection of employees using a portable ladder on the jobsite. Southern Solar was
onsite to install a solar panel system on the roof of the building under construction (Tr. 92). Activity
at the jobsite involved the construction of a bank building. The standard applies to the work
performed by Southern Solar at the jobsite.
The Secretary also must prove there was noncompliance with the terms of cited standard,
§ 1926.1053(b)(1), which provides:

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(b) Use. The following requirements apply to the use of all ladders, including job-
made ladders, except as otherwise indicated:
(1) When portable ladders are used for access to an upper landing surface, the ladder
side rails shall extend at least 3 feet (.9m) above the upper landing surface to which
the ladder is used to gain access; or, when such an extension is not possible because
of the ladder’s length, then the ladder shall be secured at its top to a rigid support that
will not deflect, and a grasping device, such as a grabrail, shall be provided to assist
employees in mounting and dismounting the ladder. In no case shall the extension
be such that ladder deflection under a load would, by itself, cause the ladder to slip
off its support.

   The citation alleges in item 1a that “[o]n or about 12/29/2010- at 5576 Grove Boulevard,

Hoover, AL, the portable ladder used to access the top roof level did not extend at least 3 feet above
the upper landing surface” (Citation and Notification of Penalty). Both the testimony of McWilliams
and the photographs admitted into evidence show that the step ladder used to gain access did not
extend at least 3 feet above the upper landing surface (Tr. 24; Exhs. C-1, C-2, C-3, C-4, C-5, C-6,
C-7, C-8). Owner Bradford admitted the step ladder did not extend 3 feet above the parapet wall
(Tr. 96). Further, McWilliams testified that the ladder was not secured in any way that she could see
(Tr. 41-42 ). This testimony was uncontroverted. Southern Solar contends that the step ladder
extended at least 3 feet above the area being accessed, which Southern Solar asserts was the top of
the upper roof, not the top of the parapet wall (Tr. 87). Southern Solar also argues that a step ladder
was the safest method of accessing the roof (Respondent’s Brief, p. 1). The regulation provides that
“the ladder side rails shall extend at least 3 feet (.9m) above the upper landing surface to which the
ladder is used to gain access” (§ 1926.1053(b)(1)). The photographs show a Southern Solar
employee using the top of the parapet wall as a landing surface (Exhs. C-6, C-7). Accordingly, the
undersigned finds the Secretary has established that Southern Solar violated the specific terms of the
standard.
As an element of the Secretary’s burden of proof, the record must show that employees were
exposed or had access to the violative condition. Walker Towing Corp., 14 BNA OSHC 2072
(No. 87-1359, 1991). Owner Bradford testified that Southern Solar had two employees on the site,
Doug Stevenson and Blake Bradford (Tr. 82). Owner Bradford was not at the site during the
inspection (Tr. 44). Owner Bradford testified that Blake Bradford was the employee photographed
accessing the roof via the step ladder (Tr. 83). Employee Bradford was photographed by

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McWilliams utilizing the step ladder for egress (Exhs. C-6, C-7). Accordingly, the Secretary has met
her burden of establishing exposure or access to the violative condition.
The Secretary also must establish actual or constructive knowledge of the violative
conditions by Southern Solar in order to prove a violation of the standard. In order to show employer
knowledge of a violation the Secretary must show the employer knew, or with the exercise of
reasonable diligence could have known of a hazardous condition. Dun Par Engineered Form
Co.,12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). The testimony reveals that Stevenson was
the leadman on the jobsite (Tr. 22). As such, his knowledge can be imputed to Southern Solar. An
employer is chargeable with knowledge of conditions which are plainly visible to its supervisory
personnel. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994).
“Because corporate employers can only obtain knowledge through their agents, the actions and
knowledge of supervisory personnel are generally imputed to their employers, and the Secretary can
make a prima facie showing of knowledge by proving that a supervisory employee knew of or was
responsible for the violation.” Todd Shipyards Corp. 11 BNA OSHC 2177, 2179 (No. 77-1598,
1984). See also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986)(the actual
or constructive knowledge of an employer’s foreman can be imputed to the employer).
Here, the Secretary has failed to establish Southern Solar had actual or constructive
knowledge of the violative conditions. It is the Secretary’s burden to adduce sufficient evidence to
establish this element of her case. Although it has been established that Stevenson was one of two
employees of Southern Solar at the jobsite and that he was the leadman on site for Southern Solar,
there is no evidence that Stevenson knew that the step ladder was being used to access the upper roof
or that it failed to extend at least 3 feet above the upper landing surface. There is no evidence that
Stevenson was in proximity to the step ladder or ever saw the ladder in place to know that it was
being used improperly. The photographs admitted into evidence show Stevenson working on the
ground level of the building with an extension ladder (Exhs. C-1, C-5). The cited step ladder was
on the lower roof level and extended up to the upper roof level (Exhs. C-1, C-2, C-3, C-4, C-5). The
testimony elicited at the hearing only shows that Stevenson was aware, in general, that ladders must
extend at least 3 feet above the upper landing surface. Actual knowledge has not been established.

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When actual knowledge cannot be established, the Secretary can meet this element of her
case by showing constructive knowledge. Here, however, there is insufficient evidence to establish
even constructive knowledge. The only evidence elicited at the hearing regarding Stevenson was
that he was on the jobsite, that he was the leadman, that he was a competent person, and that he was
aware of the requirement of the standard. The undersigned determines that this alone is insufficient
to establish constructive knowledge. The Secretary has not shown actual or constructive knowledge
of the cited condition. Accordingly, the Secretary has not met her burden of establishing a violation
of the cited standard. Therefore, the citation alleging a violation of § 1926.1053(b)(1) is vacated.
Item 1b: Alleged Serious Violation of § 1926.1060(a)
Southern Solar was issued a citation for a violation of §1926.1060(a) which provides:
The employer shall provide a training program for each employee using ladders and
stairways, as necessary. The program shall enable each employee to recognize
hazards related to ladders and stairways, and shall train each employee in the
procedures to be followed to minimize these hazards.

   Specifically, the Secretary cited Southern Solar for a serious violation of § 1926.1060(a),

alleging that “[o]n or about 01/04/11- at 5576 Grove Boulevard, Hoover, AL, the employee using
the portable ladder to access the upper roof level had not been trained on the proper use of ladders”
(Citation and Notification of Penalty). McWilliams spoke with Chris Shearburn of Southern Solar
regarding any safety programs the company may have had in place regarding portable ladders
(Tr. 45-46). Shearburn requested additional time to provide the requested documents (Tr. 46). The
documents were provided on January 4, 2011 (Tr. 48). McWilliams determined that the documents
were insufficient and asked for additional information that showed the training had taken place
(Tr. 48). Conger of Southern Solar informed her that there were no additional documents and that
what had been provided was all they had (Tr. 48). Because Southern Solar failed to produce
additional documents showing the training had occurred, McWilliams determined a citation for a
violation of § 1926.1060(a) was appropriate. The undersigned finds that the request for records is
insufficient to establish that Southern Solar did not have a training program for its employees as
required by the standard. There was no testimony that the Secretary ever asked anyone associated
with Southern Solar whether they had trained the employees.

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Southern Solar contends it provided informal training to its employees (Tr. 88). Owner
Bradford testified that employee Blake Bradford was trained extensively and was provided specific
ladder regulations and directions for him and for others to look at immediately, and every detail
about ladders was verbally explained to him in case he did not understand (Tr. 88). Further, owner
Bradford testified that while he could not quote the instructions given to employee Bradford,
Southern Solar provided routine safety discussions and talks regarding safety on the roof and how
you get on the roof. He admitted these talks were not documented (Tr. 98-99).
The standard cited here does not require the safety program to be in writing. The only
evidence adduced at the hearing from the Secretary regarding the ladder training program was that
Southern Solar produced no documentation establishing training. This alone falls short of
establishing the terms of the standard were violated. Accordingly, the Secretary has not met her
burden of establishing a violation of the cited standard. Therefore, the citation alleging a violation
of § 1926.1060(a) is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Citation 1, Items 1a and 1b, alleging violations of §§ 1926.1053(b)(1) and 1926.1060(a),
respectively, is vacated.

   SO ORDERED.

                                                 /s/ Sharon D. Calhoun
                                           SHARON D. CALHOUN
                                           Judge

Date: June 20, 2011
Atlanta, Georgia

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