J. Reed Constructors, Inc.

Plain-English summary

Two J. Reed Constructors employees installed exterior sheeting from an aerial lift about 35 feet above the ground without tying off. The company conceded the violation but disputed knowledge and asserted unpreventable employee misconduct. The judge found constructive knowledge because the condition was plainly visible, the crew may have worked that way for six hours, and the superintendent failed to inspect or adequately supervise them. The company's safety manual was not effectively communicated to Spanish-speaking employees, its required job-safety analyses were not prepared, and the employees were not disciplined. Two earlier final citations involved employees doing similar exterior work from aerial lifts without fall protection. The item was affirmed as repeat, and the full proposed $14,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.453(b)(2)(v)
• Outcome: Repeat aerial-lift fall-protection item affirmed; $14,000 penalty assessed.
• Key point: A written tie-off rule did not support an employee-misconduct defense when training, monitoring, job analysis, and discipline were not effectively implemented.

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. 12-2152

J. Reed Constructors, Inc., 1
Respondent.

Appearances:
Josh Bernstein, Esquire, U. S. Department of Labor, Office of the Solicitor, Dallas, Texas
For the Complainant

    John S. McLindon, Esquire, Walters Papillion Thomas Cullens, LLC., Baton Rouge, Louisiana
            For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                     DECISION AND ORDER
    J. Reed Constructors, Inc., (JRC) contests a one-item Citation and Notification of Penalty

issued to it by the Secretary on October 5, 2012. The Secretary issued the Citation and
Notification of Penalty following an inspection conducted by Occupational Safety and Health
Administration (OSHA) Compliance Safety and Health Officer (CSHO) Jason Coffey on July
31, 2012, at a worksite in Plaquemine, Louisiana.
Item 1 of the Citation alleges a repeat violation of 29 C.F.R. § 1926.453(b)(2)(v), for
permitting employees to perform work from an aerial lift without adequate fall protection. The
Secretary proposed a penalty of $14,000.00 for Item 1. JRC timely contested the Citation and
Notification of Penalty.
A hearing was held in this matter on August 21, 2013, in Baton Rouge, Louisiana. The
parties stipulate the Commission has jurisdiction over this proceeding under § 10(c) of the

1
Pleadings and orders in this case have identified Respondent as J Reed Constructors, Inc., without a period in the
corporate name. Filings with the Louisiana Secretary of State’s Office, however, reveal that the proper name for
this company includes a period. Accordingly, the case caption is hereby amended to reflect J. Reed Constructors,
Inc., as the correct name for the Respondent in this matter.
Occupational Safety and Health Act of 1970 (Act) and that it is an employer covered under §
3(5) of the Act (Tr. 12). The parties have filed post-hearing briefs. JRC concedes its employees
violated the cited standard, but contends it was unaware of the violation. JRC also asserts the
affirmative defense of unpreventable employee misconduct.
For the reasons discussed below, Item 1 of the Citation is AFFIRMED as a repeat
violation of § 1926.453(b)(2)(v) and a penalty of $14,000.00 is assessed.
Background
Reed Luneau is the owner and president of JRC. His parents founded the company in
1984. Originally JRC acted as a subcontractor specializing in erecting metal buildings. In 2000,
Luneau began working for the company. Under his guidance, JRC branched out into general
commercial contracting (Tr. 28, 201).
On July 13, 2012, JRC was acting as the general contractor on a project to renovate the
entrance to a school on St. Louis Road in Plaquemine, Louisiana. JRC’s superintendent on the
site was Blaine Smith (Tr. 147). 2 Smith was overseeing six JRC employees and twenty-five
subcontractors on July 31, 2012. By that time, JRC had been working on the project for
approximately six months (Tr. 65, 155, 157, 179).
That day, CSHO Coffey was driving by the renovation project when he observed two
workers in an aerial lift applying Tyvek sheeting to the exterior walls of the school entrance.
The aerial lift was raised approximately 35 feet high. The workers were not tied off (Exh. C-1;
Tr. 98-99). CSHO Coffey parked nearby and approached the worksite on foot. He took several
photographs of the site and then sought out a representative of the general contractor. He found
Smith inside the school building, in a room he had taken over as his office during the project (Tr.
100-101). CSHO Coffey held an opening conference with Smith and showed him the
photographs he had taken. Smith acknowledged that the workers photographed applying Tyvek
sheets from the aerial lift were JRC employees (Tr. 67). JRC had fall protection equipment
(body harnesses and lanyards) available for use on the site (Tr. 186).
JRC’s work day begins at 7:00 a.m. (Tr. 72). CSHO Coffey arrived at the site at
approximately 3:30 (Tr. 104). CSHO Coffey asked Smith how long the two employees had been

2
Smith testified his full name is “Paul Blaine Smith” (Tr. 63). CSHO Coffey identified JRC’s superintendent as “Mr.
Blaine” and referred to him as such throughout his testimony (Tr. 101). The witnesses and the parties’ counsel also
referred to the superintendent as “Blaine” or “Mr. Blaine.” He will be referred to as “Smith” in this Decision.

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working in the aerial lift. Smith indicated he did not know because another subcontractor had
been using the lift earlier in the day and he was not aware of when the JRC crew took possession
of it (Tr. 158). Another JRC employee (Employee #1) was in the immediate area. Smith told
CSHO Coffey to ask Employee #1 how long the JRC employees had been in the aerial lift (Tr.
105). Employee #1 informed CSHO Coffey that the JRC employees were “at least, in the aerial
lift for six hours” (Tr. 106). 3
The Secretary previously had issued citations to JRC for violations of §
1926.453(b)(2)(v) in 2008 and 2009 (Exhs. C-3 and C-5). JRC did not contest the citations and
agreed to pay reduced penalties in settlement of them. The citations became Final Orders of the
Commission (Exhs. C-2 and C-4).
The Citation
Item 1: Alleged Repeat Violation of § 1926.453(b)(2)(v)
Item 1 of the Citation alleges:
On or about July 31, 2012; on the west side of the jobsite, employees were
allowed to perform work while utilizing an aerial lift without adequate fall
protection. Employees were observed standing in an aerial lift at a height of
approx. 35 ft. without the use of personal fall protection while installing Tyvek
commercial wrap to an exterior wall of the building.
Section 1926.453(b)(2)(v) provides:
A body belt shall be worn and a lanyard attached to the boom or basket when
working from an aerial lift.

     JRC Concedes the First Three Elements of the Secretary’s Burden of Proof
    The Secretary has the burden of establishing the employer violated the cited standard.
    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) the employer
    failed to comply with the terms of the cited standard; (3) employees had access to
    the violative condition; and (4) the cited employer either knew or could have
    known with the exercise of reasonable diligence of the violative condition.

3
Both parties attempted to elicit testimony from Employee #1 at the hearing (Tr. 87-92, 197-200). Employee #1
asserted he did not recognize CSHO Coffey and had not spoken with him during the inspection. In fact, Employee

1 denied he knew anything about anything: “See there? I don’t remember seeing over there, OSHA over there. I

don’t see nothing. Nobody told me nothing, you know. . . . I’m busy, you know. You know, I’m working. I
remember seeing—I don’t remember if somebody told me something, you know. I don’t remember seeing over
there. I don’t remember. Nobody told me nothing” (Tr. 91). The undersigned closely observed the demeanor of
Employee #1. He was ill at ease and clearly regretted his onsite conversation with CSHO Coffey. It is determined
that, rather than give testimony adverse to his employer (whose president was sitting in the hearing room),
Employee #1 resorted to the “I know nothing” defense. The undersigned credits CSHO Coffey’s testimony that
Employee #1 told him the JRC employees had been in the aerial lift for six hours.

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JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
JRC contests only the knowledge element of the Secretary’s burden of proof. JRC
stipulated “that the cited standard is applicable” (Tr. 12). Section 1926.450(a), the definition
section of Subpart L, provides: “the criteria for aerial lifts are set out exclusively in § 1926.453.”
It is undisputed JRC’s crew was working from an aerial lift. JRC admitted its employees failed
to comply with the terms of § 1926.453(b)(2)(v) (Tr. 40, 171). JRC stipulated that its employees
had access to the violative condition and “the cited hazard was sufficient to cause serious bodily
injury or death” (Tr. 12-13). JRC reiterates in its post-hearing brief, “There is no dispute that the
two employees . . . were in a manlift and were not clipped in properly pursuant to OSHA
regulations” (JRC’s brief, p. 2). JRC asserts only that “the owners and the management of the
company did not know that the violation was going on” (Tr. 13).
Knowledge
A supervisor’s knowledge of a subordinate’s misconduct is imputable to the employer.
Comtran Group, Inc., 722 F.3d 1304, 1317 (11th Cir. 2013). Smith is the only JRC employee on
the site identified as a supervisor. He was inside the school building in his makeshift office
when CSHO Coffey arrived at the worksite on July 31, 2012. There is no evidence he observed
the JRC employees working from the aerial lift without fall protection (Tr. 100-101). The record
establishes Smith did not have actual knowledge of the JRC employees’ failure to tie off while
working from the aerial lift.
The Secretary argues that Smith had constructive knowledge of the employees’ violative
conduct. Constructive knowledge means the employer either knew of or, with the exercise of
reasonable diligence, could have known of the violative conditions. “An inquiry into whether an
employer was reasonably diligent involves several factors, including the employer’s obligation to
have adequate work rules and training programs, to adequately supervise employees, to
anticipate hazards to which employees may be exposed, and to take measures to prevent the
occurrence of violations.” Stahl Roofing, Inc., 19 BNA OSHC 2179, 2181 (No. 00-1268, 2003).
Each of the listed factors is addressed in turn:
Work Rules and Training Programs
JRC did not provide safety training classes for the employees who were in the aerial lift
(Tr. 212-213). JRC has a written Safety Manual (Exh. R-3). It distributes copies of the Safety
Manual to the superintendents on its worksites so that they can go over the safety rules with

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JRC’s employees “as needed” (Tr. 205). Nonsupervisory employees are not given their own
copies of the Safety Manual (Tr. 206).
The Safety Manual states: “Safety harnesses must be worn and tied off 100% whenever
you are working 6 feet above grade” (Exh. R-3, Tab B). This rule is listed along with other
general safety rules, such as admonitions not to wear tennis shoes and tank tops and not to
engage in horseplay. JRC does not have a written work rule specifically addressing the
requirement to tie off while working from an aerial lift (Tr. 173-174).
The two employees observed in the aerial lift spoke Spanish as their first language. JRC
does not have a Spanish version of the Safety Manual (Tr. 76). Smith stated that if an employee
does not speak English very well, he is paired with another employee who does: “[U]sually, we
paired them up. I don’t know if it was intentional or not but usually one guy spoke a little bit
better than the other” (Tr. 151-152). Smith also testified he could communicate at a rudimentary
level in Spanish: “And I do know some Spanish like, you know, cuidado, which means ‘be
careful, caution.’ Despaseo means ‘work slow.’ Trabajo desposeo. So I can communicate
somewhat with these guys” (Tr. 152).
Supervision of Employees
Smith explained why he was not able to check on the JRC employees in the aerial lift
during the six hours they were applying the Tyvek sheets to the exterior wall:
So in a typical day, I’m pretty much all over the place. Sometimes I have
to sit down with guys 30 minutes, you know, to read a set of plans of look at plans
or make some phone calls to the architect or engineer to find out information that
these guys need to do in order to perform their scope of work.
So I can’t just, you know, sit there and watch just one set of guys work.
I’m really kind of all over the place. This job is, like, 700 feet long and 250 feet
deep and the building is 12,000 square feet and it’s two stories.
So I may be upstairs, downstairs, upstairs, downstairs, go in, come out,
you know, just trying to coordinate it and watch what everybody is doing and
make sure they do a good job and make sure they do a safe job.
(Tr. 157). Smith acknowledged he was “super busy” the day of the inspection (Tr. 173).
Luneau testified, “We tell the guys what they need to do and when they need to do it and
what safety equipment is provided for them, but I can’t be everywhere all the time” (Tr. 210).
He also stated, “[T]here’s no way to babysit everybody” (Tr. 211).

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Anticipation of Hazards
JRC has a history of employees failing to tie off while working from aerial lifts. On
January 15, 2008, an OSHA CSHO inspected a JRC worksite in Covington, Louisiana. The
Secretary issued a citation for a serious violation of § 1926.453(b)(2)(v) following the
inspection. The alleged violation description (AVD) from that citation states:
The employer allowed his employee to install insulation to the front of the
building working out of a JLG aerial lift at a height of 24 feet without a body belt
with lanyard (restraining device) nor a full body harness with lanyard (personal
fall protection system).
On November 14, 2008, an OSHA CSHO inspected a JRC worksite in Waco, Texas. The
Secretary subsequently cited JRC for a repeat violation of § 1926.453(b)(2)(v). The AVD from
that citation states:
On or about November 14, 2008, and times prior thereto, at the construction site:
Two employees, installing side paneling, were working from the platforms of the
Genie S-85 and S-65 articulating extensible aerial lifts and were not using
personal fall arrest systems or fall restraint systems attached to the boom or
basket.
Measures to Prevent Occurrence of Violations
According to JRC’s policy, superintendents are supposed to develop a series of Job
Safety Analysis (JSA) forms for each worksite. JRC’s Safety Manual provides:
The Job Safety Analysis (JSA) program is cornerstone to the safety program at
JRC. The intent of the JSA program is to create an exchange between all levels of
personnel and identify 3 key considerations in the performance of a task. The 3
considerations include (1) a step by step breakdown of the task, (2) identification
of the potential hazards associated with each step, and (3) precautions to be taken
to minimize injury risks.
(Exh. R-3, Tab B). JRC’s Safety Manual states, “Each foreman is expected to develop, revise or
review a minimum of 4 JSAs per month. Upon completion the JSA should be submitted to the
project manager for review and approval” (Exh. R-3, Tab B).
Smith did not develop any JSAs for the school renovation project. He testified he failed
to develop any JSAs in the six months prior to the OSHA inspection and did not develop any
during the three months remaining after the inspection (Tr. 176-177). JRC president Luneau
testified he was aware Smith was not submitting JSAs for the project but Luneau neither
reprimanded Smith nor reminded him of the company’s “cornerstone” program (Tr. 216-217).
JRC did not discipline the two employees for working in the aerial lift without fall
protection, other than Smith yelling at them (Tr. 80-81, 153, 159). The employees were not
6
suspended, docked pay, or written up. When asked if he fired the employees, Smith replied,
“No. A good worker is a good worker” (Tr. 194).
Analysis
The record establishes JRC failed to adequately train its employees in fall protection
safety, failed to adequately monitor its employees’ use of fall protection despite a history of
employees failing to tie off while working from an aerial lift, and failed to take measures to
prevent fall protection violations. JRC did not have a specific work rule requiring employees to
tie off while working from an aerial lift. Its safety program was communicated to its employees
at the discretion of the supervisor. Some employees could not speak English well. The
rudimentary Spanish Smith testified he could speak was not adequate to convey specific safety
rules to the non-English speaking employees. Smith could not tell the CSHO how long the
employees had been in the aerial lift because he apparently had not gone outside of the school
building since the beginning of the work day. The aerial lift was in plain view. The CSHO
observed the employees working without fall protection from his vehicle as he drove on a street
approximately 100 feet away (Tr. 100). JRC did not discipline the employees in the aerial lift.
Under these circumstances, it is determined that JRC failed to exercise reasonable
diligence to prevent its employees’ violative conduct. The company was on notice that its
employees at times failed to tie off while working from aerial lifts. JRC took no steps to ensure
the aerial lift crew was monitored and did not discipline the crew once the violation was
discovered. The failure to discipline employees for violating basic safety rules (JRC has a 100
percent tie off rule) signals to the employees that the company does not take its safety program
seriously. JRC’s lax monitoring and lack of discipline demonstrate an absence of reasonable
diligence. Lake Erie Constr. Co., 21 BNA OSHC 1285 (No. 02-0520, 2005) (Commission finds
constructive knowledge based in part on employer’s failure to utilize disciplinary program for
inadequate fall protection).
The violative activity was in plain sight. Smith spent the day inside the building on
which the employees were working.
The Commission has held that “the conspicuous location, the readily observable
nature of the violative condition, and the presence of [the employer's] crews in the
area warrant a finding of constructive knowledge.” Kokosing Constr. Co., 17BNA
OSHC1869, 1871, 1993-95CCH OSHD ¶ 31,207, p.43,723 (No. 92-2596, 1996).
Additionally, constructive knowledge may be found where a supervisory

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employee was in close proximity to a readily apparent violation. Hamilton
Fixture, 16 BNA OSHC1073, 1089, 1993-95CCH OSHD ¶ 30,034, p.41,184 (No.
88-1720, 1993), aff'd, 28 F.3d 1213 (6th Cir. 1994) (unpublished).
KS Energy Services, Inc., 22 BNA OSHC 1261, 1265-1266 (No. 06-1416, 2008).
It is determined that Smith would have known of the violative conduct of the JRC
employees in the aerial lift with the exercise of reasonable diligence. The Secretary established
constructive knowledge of the violative conduct. JRC violated § 1926.453(b)2)(v).
Employee Misconduct Defense
JRC argues its employees engaged in employee misconduct when they failed to tie off
while working from the aerial lift. “To establish the unpreventable employee misconduct
defense, an employer must show that it established a work rule to prevent the violation;
adequately communicated the rule to its employees, including supervisors; took reasonable steps
to discover violations of the rule; and effectively enforced the rule.” Schuler-Haas Electric
Corp., 21 BNA OSHC 1489, 1494 (No. 03-0322, 2006).
JRC’s employee misconduct defense fails for most of the same reasons the Secretary’s
case for constructive knowledge succeeded. JRC had a work rule requiring employees to tie off
when working at elevations of six feet or more. Otherwise, JRC failed to establish the elements
of its affirmative defense.
JRC failed to adequately communicate its work rule to its employees. The company does
not issue copies of its Safety Manual to employees and does not require its supervisors to go over
the safety manual with their crews. Rather, the supervisors determine what parts of the Safety
Manual they will share with their employees “as needed” (Tr. 205). JRC does not have a
Spanish version of the Safety Manual although it employs Spanish-speaking employees who do
not speak English well. Smith lacks proficiency in Spanish. JRC produced no documentation
that it trained any of its employees in the use of fall protection (Tr. 56).
JRC failed to take reasonable steps to discover violations of its six-foot rule and utterly
failed to enforce the rule. Although JRC had its JSA program in place, it did not implement it.
Smith neglected to submit a single JSA for the nine-month project, without repercussions. JRC
did not discipline employees who were found to be in violation of its six-foot rule. Luneau
admitted JRC did not follow its own disciplinary policy (Tr. 48). When asked if he agreed that
because JRC “doesn’t really follow its own policy, that your discipline program is really not
effective,” Luneau replied, “Correct” (Tr. 49).
8
 Luneau testified regarding the effectiveness of its safety program:
Q. JSAs should have been done at this work site, correct?
Luneau: Yes.
Q. And that would have been the management tool that would have been a safe
and effective way to train and discuss these hazards with these employees,
correct?
Luneau: Yes.
Q. And since there were no JSAs, in that way, you guys really violated your own
policy, correct?
Luneau: Yes.
Q. And you agree that this is yet another reason as to why your safety and health
program was not effective at the time?
Luneau: Yes.
(Tr. 55).
JRC has failed to meet its burden of proving the employee misconduct defense. Item 1 is
affirmed.
Repeat Classification
The Secretary classified Item 1 of the Citation as a repeat violation. In order to establish
a repeat violation, the Secretary must show that at time of the alleged repeated violation, there
was a Commission final order against the same employer for a substantially similar violation.
Potlatch Corp., 6 BNA OSHC 1061, 1063 (No. 16183, 1979).
The day of the inspection, July 31, 2012, two Commission final orders existed against
JRC for the violation of the same standard at issue here, § 1926.453(b)(2)(v) (Exhs. C-2 through
C-5). In both previous cases, JRC’s employees were working from aerial lifts installing material
on the exterior of a building.
The Secretary has established two final orders existed for violations almost identical to
the violation at issue here. Item 1 is properly classified as a repeat violation.
Penalty Determination
The Commission “is the final arbiter of penalties . . . .” Hern Iron Works, Inc., 16
BNA OSHC 1619, 1622, 1993-95 CCH OSHD ¶ 30,363, p. 41,882 (No. 88-1962,
1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA
OSHC 1135, 1138, 1993-95 CCH OSHD ¶ 30,759, p. 42.742 (No. 93-0239, 1995)
(“The [OSH] Act places limits for penalty amounts but places no restrictions on
the Commission’s authority to raise or lower penalties within those limits.”),
aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives

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due consideration to all of the statutory factors with the gravity of the violation
being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19
BNA OSHC 1374, 1378, 2001 CCH OSHD ¶ 32,320, p. 49,478 (No. 99-0322,
2001), aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). When determining
gravity, the Commission considers the number of exposed employees, the
duration of their exposure, whether precautions could have been taken against
injury, and the likelihood of injury. Capform, 19 BNA OSHC at 1378, 2001 CCH
OSHD at p. 49,478.
M.V.P. Piping Co., Inc. (No. 12-1233, 2014).
The Secretary proposed a penalty of $14,000.00. JRC had fewer than 25 employees at
the time of the inspection (Tr. 110). Had the two employees at issue here fallen from a height of
35 feet, the likely result would be death or serious physical injury. They were exposed to the fall
hazard for approximately six hours. The gravity of the violation is high.
In 2008, the Secretary and JRC entered into an Expedited Informal Settlement Agreement
under which JRC paid $360.00 rather than the $600.00 penalty originally proposed by the
Secretary (Exhs. C-4 and C-5). In 2009, the Secretary and JRC entered into a Settlement
Agreement under which JRC paid $3,000.00 rather the $4,000.00 penalty originally proposed by
the Secretary (Exhs. C-2 and C-3). Neither penalty seems to have impressed JRC with the
gravity of the violative conduct. Upon consideration of the “double repeat” nature of the
violation in the instant case, the undersigned determines that assessment in full of the Secretary’s
proposed penalty of $14,000.00 is warranted.
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 hereby ORDERED that Item 1 of the Citation,
alleging a repeat violation of § 1926.453(b)(2)(v), is AFFIRMED and a penalty of $14,000.00 is
assessed.

                                                 /s/
                                                 ______________________________

Date: March 7, 2014 JUDGE SHARON D. CALHOUN

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