Nyffeler Construction, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Two Nyffeler Construction employees installed roof sheathing more than ten feet above the ground without compliant fall protection. The company owner could see the work and admitted that no guardrail, safety net, or personal fall-arrest system was in use. The company also had not trained the workers on required fall-protection methods or proper installation and use of slide guards. The judge rejected Nyffeler's challenges concerning later OSHA policy changes, outreach, selective prosecution, and other matters. Both serious violations were affirmed, with reduced penalties totaling $3,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13); 29 C.F.R. § 1926.503(a)(1)
• Outcome: Both serious violations were affirmed, with penalties of $2,000 and $1,400.
• Key point: Experience and informal advice to use roof kicks do not replace compliant fall protection and specific training on how to recognize and control fall hazards.

Full text (OSHRC public release)

                 United States of America
  OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

                  Complainant,
                                                          OSHRC Docket No. 11-0947
                           v.

Nyffeler Construction, Inc.,

                  Respondent.

Appearances:

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

   Greg Nyffeler, Pro Se, Omaha, Nebraska
          For the Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                DECISION AND ORDER

                                    Procedural History

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 651, et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection at the Omaha, Nebraska worksite of Nyffeler Construction, Inc.

(“Nyffeler” or “Respondent”) on February 24, 2011. As a result of that inspection, OSHA issued

a Citation and Notification of Penalty (“Citation”) to Respondent alleging serious violations of

the Act with proposed penalties of $8,400. Respondent timely contested the Citation. A one-day

trial was conducted in Omaha, Nebraska on September 23, 2011. Both parties submitted timely
post-trial briefs.

                                            Jurisdiction

    Jurisdiction of this action is conferred upon the Commission pursuant to § 10(c) of the

Act. The record establishes that at all times relevant to this action, Respondent was an

employer engaged in a business and industry affecting interstate commerce within the

meaning of § 3(5) of the Act, 29 U.S.C. § 652(5).1 (Tr. 24-25); Slingluff v. OSHRC, 425

F.3d 861, 866-67 (10th Cir. 2005).

                                              Applicable Law

    To establish a prima facie violation of the Act, Complainant must prove by a

preponderance of the evidence: (1) the cited standard applies to the cited condition; (2) the terms

of the standard were violated; (3) one or more employees had access to the cited condition; and

(4) the employer knew, or with the exercise of reasonable diligence could have known, of the

violative condition. Astra Pharm. Prod. Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981)

(citations omitted), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

    A violation is classified as serious under the Act if “there is substantial probability that

death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent

requires a finding that “a serious injury is the likely result if an accident does occur.”

Complainant does not need to show there was a substantial probability that an accident would

occur; she need only show that if an accident did occur, serious physical harm could result.

Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted). See

Omaha Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002).

1
The Commission has held that construction activity, even a small project, affects interstate commerce. Clarence
M. Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983).
 Findings of Fact

       Three witnesses testified at trial: (1) Steven Jordan, OSHA Compliance Officer (“CO”);

(2) Matthew Thurlby, OSHA CO; and (3) Greg Nyffeler, an owner of Respondent. (Tr. 24, 48,

72). Based on their testimony and discussion of evidentiary exhibits, the Court makes the

following additional findings.

       Respondent, a residential construction contractor in Omaha, Nebraska, is a corporation

owned by three individuals – Greg Nyffeler, Josh Farris, and Derek Pierce. On February 24,

2011, while inspecting a nearby worksite, OSHA inspectors saw two individuals without fall

protection on a roof at Respondent’s worksite. After the inspectors phoned in a referral, CO

Matthew Thurlby and CO Michael Connett went to Respondent’s worksite to investigate. When

CO Thurlby arrived at the worksite, he observed and photographed two people installing roof

sheathing. CO Thurlby testified that the roof’s slope was greater than 4 in 12 (vertical to

horizontal). CO Thurlby further testified that the distance from the eave of the roof to the ground

was 10 feet 9 inches. The CO testified that he did not see any lanyards in use.2 CO Thurlby

opened the inspection with Mr. Nyffeler and asked to interview the employees on the roof, Troy

Poledna and Ryan Coleman. (Tr. 24-25, 34, 50-51, 75-82, 86-91, 98; CX-4, CX-5, CX-6, CX-8,

CX-9).

                                              Citation 1, Item 1

       Complainant alleges a serious violation of the Act in Citation 1, Item 1, as follows:

       29 C.F.R. § 1926.501(b)(13): Each employee engaged in residential construction
       activities 6 feet or more above lower levels was not protected by guardrail
       systems, safety net systems, or personal fall arrest systems, nor was an alternative
       fall protection plan which meets the requirements of 1926.502(k) developed and
       implemented.

       Jobsite located at 1210 S. 199th Street, Omaha, NE:          Two employees were

2
A lanyard is part of a personal fall arrest system.
 observed installing roof sheathing without fall protection. The employees were
exposed to falls of greater than 10 feet.

     The cited standard provides:

     29 C.F.R. § 1926.501(b)(13): Residential Construction. Each employee engaged
     in residential construction activities 6 feet (1.8 m) or more above lower levels
     shall be protected by guardrail systems, safety net systems, or personal fall arrest
     system unless another provision in paragraph (b) of this section provides for an
     alternative fall protection measure. Exception: When the employer can
     demonstrate that it is infeasible or creates a greater hazard to use these systems,
     the employer shall develop and implement a fall protection plan which meets the
     requirements of paragraph (k) of § 1926.502.

     Complainant must demonstrate that employees had access to the cited condition.

Complainant may show employee access either through actual employee exposure or by

showing that “while in the course of their assigned working duties . . . [employees] will be, are,

or have been in a zone of danger.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504,

1976). Finally, Complainant must prove Respondent either knew, or with the exercise of

reasonable diligence could have known, of the violative condition. Dun-Par Engineered Form

Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). Respondent’s knowledge is established by

showing that Respondent is aware of the physical conditions that constitute a violation. Phoenix

Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) (citations omitted), aff’d

without published opinion, 1996 WL 97547 (5th Cir. 1996). Moreover, Complainant is not

required to show that an “employer understood or acknowledged that the physical conditions

were actually hazardous.” Id.

     The Court finds the cited standard applies because the Respondent’s employees were

installing roof sheathing and were exposed to falls more than six feet above the ground. Mr.

Nyffeler admitted that: (i) he could observe the employees working on the roof; (ii) no “roof
kicks” were in place on the east side of the house where the employees were working;3 and (iii)

the only fall protection being used that day was “the training and knowledge they’ve had from

years and years of experience.” (Tr. 43-45; CX-4). The Court finds Respondent did not utilize

the required fall protection.

     Next, the cited standard provides an exception that allows the use of an alternate fall

protection method when an employer can show it is infeasible or would create a greater hazard to

use conventional fall protection (guardrails, safety nets, or a personal fall arrest system). The

Commission has held that “the party claiming the benefit of an exception to the requirements of a

standard has the burden of proof of its claim.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178,

2194 (No. 90-2775, 2000) (citations omitted). Respondent did not present evidence that

conventional fall protection would be infeasible or present a greater hazard. Instead, the CO

testified that it was feasible to use conventional fall protection. (Tr. 108-10). The Court finds

Respondent did not meet the terms of the standard’s exception.

     Further, an OSHA directive which allowed the use of alternate procedures for certain

residential construction activities (“Directive”) was in effect at the time of the inspection.4 CO

Thurlby testified that if an employer followed the requirements of the Directive for roof

sheathing, roof kicks (slide guards) must be installed correctly and used along with the

implementation of other requirements, such as a controlled access zone.5 (Tr. 99-108; CX-11).

Here, one roof kick was installed incorrectly and there was no roof kick in the area where the

3
A “roof kick” is another term for a slide guard. Both Mr. Nyffeler and CO Thurlby testified that a slide guard is a
piece of lumber that is a nominal “2 x 4” installed on a roof for the purpose of stopping a person’s slide down the
roof. (Tr. 34, 106.)
4
Roof sheathing is one of the activities that qualifies for alternative fall protection procedures under OSHA’s STD
3-0.1A, Plain Language Revision of OSHA Instruction STD 3.1, Interim Fall Protection Compliance Guidelines for
Residential Construction, rescinded effective June 16, 2011. (Tr. 101; CX-11.)
5
CO Thurlby testified the directive requires implementation of the following for roof sheathing work: site-specific
training, designation of a crew foreman, a controlled access zone, materials staging, falling object protection, and
properly installed slide guards. (Tr. 99-108; CX-11.)
employees were working.6 This fact, coupled with Respondent’s failure to implement any of the

other measures specified in the Directive, means Respondent did not comply with the Directive’s

requirements. Respondent did not meet the requirements of the standard, its exception, or the

Directive.

     As to the third element of the Complainant’s burden, the record clearly establishes that

Respondent’s employees were exposed to the violative condition. As to the fourth element, the

record also establishes knowledge. Mr. Nyffeler, one of Respondent’s owners, testified that he

could see the employees working on the roof, and he admitted that the employees were not using

any fall protection. (Tr. 43-45). Respondent therefore knew, or with the exercise of reasonable

diligence could have known, of the violative condition. Finally, the violation was properly

characterized as serious because an employee could have been seriously injured, or killed, in a

fall from the roof. (Tr. 124-25). Accordingly, the Court finds that the Complainant established

all of the elements necessary to prove the serious violation alleged in Citation 1, Item 1. Citation

1, Item 1 will be AFFIRMED.

                                         Citation 1, Item 2

     Complainant alleges a serious violation of the Act in Citation 1, Item 2, as follows:

     29 C.F.R. § 1926.503(a)(1): The employer did not provide a training program for
     each employee potentially exposed to fall hazards to enable each employee to
     recognize the hazards of falling and the procedures to be followed in order to
     minimize these hazards:

6
CO Thurlby testified that there were no roof kicks where the employees worked. Additionally, on another part of
the roof where a roof kick was attached, it was installed incorrectly. (Tr. 105-108; CX-1). It was nailed flat so that
it extended 1.5 inches above the roof’s surface. Mr. Nyffeler described the installation of a roof kick as nailing a
nominal 2” x 4” board flat against the roof; he further indicated the actual measurement of the board would be 1.5
inches x 3.5 inches. Therefore, when nailed to the roof, the board would extend about 1.5 inches above the surface
of the roof. The OSHA directive required a roof kick to extend, at a minimum, a nominal 4 inches above the roof’s
surface. (Tr. 36, 105-108; CX-1).
 Throughout the Company: The employer failed to train employees that were
potentially exposed to fall hazards to enable each employee to recognize the
hazards associated with the type of work being conducted. This should include
training on mitigating those hazards through an acceptable method of fall
protection. Training should also include the requirements for fall protection
systems and when it is appropriate to utilize those systems.

   The cited standard provides:

   29 C.F.R. § 1926.503(a) Training Program. (1): The employer shall provide a
   training program for each employee who might be exposed to fall hazards. The
   program shall enable each employee to recognize the hazards of falling and shall
   train each employee in the procedures to be followed in order to minimize these
   hazards.

   It is undisputed that Respondent did not provide training to its employees regarding fall

hazards. At the trial, Mr. Nyffeler testified he had: (i) not trained employees on the use of

personal fall protection (harness and lanyard); (ii) only trained employees to use a “roof kick”;

and (iii) not instructed employees on when to use a roof kick or how to properly install a roof

kick. (Tr. 33-37).

   The Commission has held that an employer must “provide the instructions that a

reasonably prudent employer would have given in the same circumstances” to be compliant with

a training requirement. N&N Contractors, Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000)

(citations omitted). Additionally, the training provided must be “specific enough to advise

employees of the hazards of their work and the ways to avoid them.” Superior Custom Cabinet

Co., 18 BNA OSHC 1019, 1021 (No. 94-200, 1997) (citations omitted), aff’d without published

opinion, 1998 WL 648507 (5th Cir. 1998). Mr. Nyffeler, by his own admission, did not train the

employees on the methods of fall protection required by the standard. (Tr. 33-37). He testified

that he told them to use roof kicks, but he provided no guidance on using them properly.

   The Complainant has established: (i) the cited standard applies; (ii) its terms were

violated; and (iii) the Respondent’s employees were exposed to the violative condition. Through
Mr. Nyffeler7, the Respondent knew, or with the exercise of reasonable diligence could have

known, of the condition.

    The violation was properly characterized as serious because an employee could have

been seriously injured, or killed, in a fall from the roof. (Tr. 124-25). Accordingly, the Court

finds Complainant established all of the elements necessary to prove the serious violation alleged

in Citation 1, Item 2. Citation 1, Item 2 will be AFFIRMED.

                                    Respondent’s Other Claims

    Respondent generally admitted to the lack of required fall protection and training for its

employees. However, Respondent set forth several claims regarding why the citations should

not be affirmed. These claims are discussed below. Before the Court undertakes a discussion of

these claims, Respondent should note that the Commission is judicial in nature; therefore, it has

no regulatory functions in regards to implementing the Act through adoption of regulations or

directives. 29 U.S.C. § 659(c). See also In re Perry, 882 F.2d 534 (1st Cir. 1989). Many of the

arguments advanced by Respondent to support its position that the Citation should not be

affirmed fall outside the jurisdiction of this Court to address or change.

    Change in OSHA’s fall protection requirements. Respondent argued that OSHA’s new

fall protection requirements were vague and should not be enforced.8 (Tr. 189-191; RX-1). The

Commission can review a claim that a standard is unenforceably vague; however, because the

change to the fall protection directive occurred after the inspection, it is not relevant to the

citations at issue in this case.9 Respondent’s argument is REJECTED.

7
The actions and knowledge of supervisory personnel are generally imputed to their employers. Revoli Const. Co.,
19 OSHC 1682 (No. 00-0315, 2001). Mr. Nyffeler, in addition to being the supervisor on the day of the inspection,
is also an owner of Respondent. Therefore, his knowledge is imputed to Respondent.
8
As discussed earlier in this decision, OSHA rescinded its alternative fall protection compliance directive on June
16, 2011. (CX-11). The Court is not addressing the nature or the merits of this rescission.
9
The Commission has held that a claim of unconstitutional vagueness is evaluated through the application of the
 Inadequate OSHA outreach and training. Respondent asserted that OSHA provided

inadequate outreach and training regarding the change to the fall protection requirements. (Tr.

170-74). The method OSHA chooses for its outreach and training reflects OSHA’s regulatory

and enforcement strategy; as such, it is not within the judicial purview of the Court as an

adjudicator. 29 U.S.C. § 651(b)(3); Sec’y v. Int’l Union Allied Indus. Workers of Am. & its

Local 370 (Whirlpool), 722 F.2d 1415, 1419-20 (8th Cir. 1983) (citations omitted). Accordingly,

Respondent’s assertion is REJECTED.

     Selective or Vindictive Prosecution. Respondent argued that OSHA unfairly targeted

residential construction employers in Nebraska, and Omaha in particular, with enforcement

actions and citations.10 (Tr. 176-182). The Commission has held that the Complainant has

“discretion in deciding whom to prosecute for violations of the Act.” Vergona Crane Co., 15

BNA OSHC 1782, 1788 (No. 88-1745, 1992) (citations omitted). However, this Court has

jurisdiction to determine if those prosecuted were so prosecuted based upon selective or

vindictive prosecution,11 which is considered an affirmative defense. A prosecution may be

considered vindictive if it is done to “deter or punish the exercise of a protected statutory or

constitutional right.” Nat’l Engineering & Contracting Co., 18 BNA OSHC 1075, 1077 (No.

94-2787, 1997) (citation omitted), aff’d, 181 F.3d 715 (6th Cir. 1999). To prevail on a claim of

vindictive prosecution, Respondent must show, at a minimum, that “the government action was

taken in response to an exercise of a protected right.” Id. Respondent presented no evidence to

standard to the facts of the case, rather than from the face of the standard. N&N Contractors, Inc., 18 BNA OSHC
at 2129 (citations omitted).
10
Respondent provided a notice from OSHA’s Region VII office to illustrate this point. (Tr. 179; RX-5). The
notice is Directive # CPL 98-02M, Region-wide Problem Solving Initiative on Falls, Scaffolds, and Electrocutions
from Overhead Power Lines in Construction, effective April 8, 2011. Because the notice was effective after the date
of the inspection, the Court will not consider this document in light of Respondent’s claims.
11
Commission Rule 207, 29 C.F.R. § 2200.207 requires affirmative defenses to be pled. Respondent did not plead
this as an affirmative defense and raised it for the first time at trial. However, based upon the Court’s ruling above it
is not necessary to address the untimeliness of the affirmative defense.
establish that the Citation was issued in response to the Respondent’s exercise of a protected

right. Respondent’s argument is therefore REJECTED.

   Constitutionality of the OSH Act. Respondent claimed that the Act is unconstitutional

because the Act does not apply to certain industries and activities. (Tr. 181-82; RX-1; R. Br. 5).

The Court does not have the authority or the jurisdiction to rule on questions of the

constitutionality of its authorizing statute. See, e.g., Adams Steel Erection, 13 BNA OSHC

1073, 1075 (No. 77-3804, 1987) (citations omitted); see generally, Caribtow v. OSHRC, 493

F.2d 1064 (1st Cir. 1974)(Finding that employers in the Commonwealth of Puerto Rico are

governed by the Act). Respondent’s claim is REJECTED.

   The American Recovery and Reinvestment Act of 2009 (“ARRA”). Respondent argued

that ARRA was enacted to create jobs, spur economic activity, and foster unprecedented levels

of government accountability. The Respondent claims the citations issued to Respondent do not

support the goal of job creation and run afoul of the goals of ARRA. (Tr. 168-69; RX-1). The

purpose of the OSH Act is “[t]o assure safe and healthful working conditions . . . by authorizing

enforcement of the standards developed under the Act . . . .” While ARRA may promote job

creation, it does not relieve the employer of its duty to comply with the OSH Act and the

standards promulgated by OSHA. Respondent’s assertion is REJECTED.

                                         Penalty

   In determining the appropriate penalty for affirmed violations, section 17(j) of the Act

requires the Court to give due consideration to four criteria: (1) the size of the employer's

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer's prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration

and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,

15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

       It is well established that the Commission and its judges conduct de novo penalty

determinations and have full discretion to assess penalties based on the facts of each case and the

applicable statutory criteria. E.g., Allied Structural Steel Co., 2 BNA OSHC 1457, 1458 (No.

1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995), aff’d, 73 F.3d 1466

(8th Cir. 1996). In calculating the proposed penalties, CO Thurlby determined the gravity was

high due to the potential for serious injury from a 10-foot fall. CO Thurlby then applied a 40

percent penalty reduction based on the Respondent’s small size. 12 There was no adjustment for

history because the Respondent had not been inspected by OSHA in the previous five years. (Tr.

128-132).

       Regarding both citation items, the Court has considered the totality of the circumstances,

including the testimony that Respondent is a very small business and that it had no prior negative

inspection history. The Court finds it appropriate to provide a reduction to both items because

the employer has no negative inspection history. As to Citation 1, Item 2, the Court finds the

Complainant’s gravity assessment was too high. For these reasons, the Court will assess a

penalty of $2,000.00 for Citation, Item 1 and $1,400.00 for Citation 1, Item 2.

                                                     ORDER

       Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Serious Citation 1, Item 1 is AFFIRMED, and a penalty of $2,000.00 is ASSESSED.

12
Mr. Nyfeller testified that there were five employees at the time of the inspection. (Tr. 29-30).
2. Serious Citation 1, Item 2 is AFFIRMED, and a penalty of $1,400,00 is ASSESSED.

                                             __/s/_____________________________

Date: March 29, 2012 PATRICK B. AUGUSTINE
Denver, Colorado Judge, OSHRC