OSHRC Commission decision Docket 14-0816 Decided April 27, 2017 Mixed result

Manson Construction Company

Platform-securing item withdrawn and remaining rulings left unreviewed

Apply this precedent to your situation

This is citable Commission precedent from 2017, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.

Decision of the Commission

This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.

Read the official release (oshrc.gov)

Plain-English summary

Manson Construction Company was cited after OSHA inspected work at the Vashon Island Ferry Terminal, where employees used a crane-suspended personnel platform and worked atop a group of pilings called a dolphin. The judge vacated three scaffold-based items but affirmed fall protection violations involving the dolphin and the personnel platform, along with an item alleging that the platform was not secured during employee transfer. On review, the Secretary withdrew only the platform-securing item under 29 C.F.R. § 1926.1431(k)(3). The Commission set aside the judge's decision to that extent and left the rest with the status of an unreviewed judge's decision. The surviving affirmed items carried penalties of $3,500 and $6,000, for a total of $9,500.

Decision snapshot

Cited standard(s): 29 C.F.R. § 1926.451(b)(2); 29 C.F.R. § 1926.451(c)(2)(iii); 29 C.F.R. § 1926.451(g)(1)(vii); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.1431(b)(1); 29 C.F.R. § 1926.1431(k)(3)
Outcome: Item 6 was withdrawn; the remaining judge rulings were left unreviewed, including $9,500 in affirmed penalties.
Key point: A Secretary's withdrawal resolves the selected item, and the Commission may leave the balance of the judge's decision unreviewed.

Full text (OSHRC public release)

Walter, J. David
3
14
2017-04-28T16:59:00Z
2017-04-28T17:21:00Z
2017-04-28T17:22:00Z
10
12102
68986
OSHRC
574
161
80927
14.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY
OF LABOR,

Complainant,

OSHRC Docket No. 14-0816

MANSON CONSTRUCTION
COMPANY,

Respondent.

APPEARANCES:

Ashley A. Briefel , Attorney;
Heather R. Phillips, Counsel for Appellate Litigation; Ann Roesenthal ,
Associate Solicitor of Labor for Occupational Safety and Health; Nicholas C. Geale , Acting Solicitor of Labor; U.S. Department of Labor,
Washington, DC

�� For
the Complainant

Aaron K. Owada , Esq., AMS
Law PC, Lacey, WA

�� For
the Respondent

ORDER

On
December 1, 2016, Administrative Law Judge Peggy S. Ball issued a Decision and
Order in this case affirming Items 4b, 5a, and 6 of the citation. � The judge�s decision was directed for review
on January 11, 2017, and a Briefing Notice was subsequently issued on
February 2, 2017. � The Briefing
Notice requested that the parties brief certain issues solely related to Item
6, which alleged a serious violation of 29 C.F.R. � 1926.1431(k)(3). � See
Bay State Refining Co. , 15 BNA OSHC
1471, 1476 (No. 88-1731, 1992) (�While the Commission has authority to consider
any issues raised in a case directed for review . . . the Commission at the
same time has discretion to limit the scope of its review.�). �

On
April 26, 2017, the Secretary notified the Commission by letter of his decision
to withdraw Item 6. � This withdrawal
resolves the only item selected for review. �
See Cuyahoga Valley Ry. Co. v.
United Transp. Union , 474 U.S. 3 (1985) (holding that the Secretary�s
discretion to withdraw citation is unreviewable). � Therefore, we set aside the judge�s Decision
and Order to the extent that it is inconsistent with the Secretary�s notice of
withdrawal and accord the remainder of her decision the status of an unreviewed judge�s decision. � Allstate Services Ltd. , 23 BNA OSHC 1052, 1053 (No. 09-0035, 2010).

��

SO ORDERED.

/s/ ��

Heather
L. MacDougall

Acting
Chairman

/s/ ��

�� Cynthia
L. Attwood

Dated: April 27, 2017 �� Commissioner

��

222United States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120
20 th Street, N.W., Ninth Floor

Washington, DC
20036-3457

SECRETARY OF
LABOR,

Complainant,

�� OSHRC Docket No. 14-0816 ��

MANSON CONSTRUCTION COMPANY,

��

Respondent.

DECISION AND ORDER

This proceeding is before
the Occupational Safety and Health Review Commission (the Commission) pursuant
to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
651 et seq. (the OSH Act). � Following a
complaint regarding workers engaged in unsafe practices, the Occupational
Safety and Health Administration (OSHA) commenced an inspection of Manson
Construction Company�s (Manson�s) worksite at the Vashon Island Ferry Terminal
near Seattle, Washington on February 13, 2014. �
(Stip. 1, 2, 5; Ex. C-3.) � As a result of this inspection, Manson was
issued a Citation and Notification of Penalty (Citation) that included twelve
serious violations, some of which were grouped together. � ( Sec�y
Br. at 2.) �

Respondent filed a timely
notice of contest, bringing this matter before the Commission. � Prior to trial, the Secretary withdrew Items
1, 2b, 3, 4c, 5b, and 5c. � (Tr.
9-10.) � A trial was held on the remaining
items (2a, 2c, 4a, 4b, 5a, and 6) from July 14 to 17, 2015 in Seattle,
Washington . � (Tr. 10.) � Afterwards, both parties filed post-trial
briefs. � For reasons set forth below,
Items 2a, 2c, and 4a of the Citation are vacated and Items 4b, 5a, and 6 of the
Citation are affirmed, with penalties assessed as indicated below. �

I.
JURISDICTION

Section
10(c) of the Act confers jurisdiction over this action upon the Commission. � The parties have stipulated and 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 section 3(5) of the Act, 29 U.S.C. � 652(5). � (Stip. 4, 12.) �

II.
FACTUAL
BACKGROUND

On February 13,
2014, Robert Scott, an OSHA Compliance Officer (CO), commenced an investigation
of Manson�s worksite at the Vashon Island Ferry Terminal. � (Stip. 2, 5.) � During his site visit, he witnessed three
workers wrapping what appeared to be steel cable around the pilings of an
offshore marine structure used by ferry boats. �
(Stip. 6; Tr. 33-34, 36, 42, 45, 515.) � The marine structure CO Scott observed is
called a �dolphin� and it is a �group of timber and PVC pilings lashed together
and standing generally upright several hundred yards offshore from the ferry
terminal and to which a ferry can be moored.� �
(Stip. 3.) �

Employees
conducted the work, described as re-lashing the dolphin, mainly from a
crane-suspended personnel platform that Manson refers to as a jilly lift. � (Stip. 6-9; Ex. C-5; Tr. 103, 515.) � The crane suspending the jilly
lift was floated out to the vicinity of the dolphin on a derrick barge. � (Tr. 171.) � The jilly lift did
not have guardrails, handrails, or toe boards around all four sides. � (Stip. 11; Ex. C-5; Tr. 666.) � At the jilly lift�s
base there were two slots into which a wooden plank up to ten inches wide could
be inserted or extended outward. � (Tr. 52, 286, 411.) �
Manson referred to these planks as �jitter boards.� � (Tr. 45.) � CO Scott observed at least one worker using the
jilly lift to transfer to and from top of the dolphin.
(Tr. 45; Ex. C-5.) �
He also saw an employee sit, stand, and kneel on top of the dolphin to
conduct lashing work. � (Stip.
9; Ex. C-5.) � None of the workers
were using fall protection at any point. �
(Stip. 10; Ex. C-5.) � The workers on the jilly
lift and the one on the dolphin were, however, wearing personal flotation
devices. � (Tr. 622, 669.) �

OSHA conducted a
second site inspection on March 17, 2014. �
(Tr. 51.) �
At that time, the work on the dolphin had been completed but CO Scott
and another CO, Edward DeLach , were able to more
closely view the jilly lift which had been used on
February 13, 2014. � (Tr. 51-52.) �

III.
DISCUSSION

A.
Applicable Law

All
of the alleged violations arise under the construction standards contained in
29 C.F.R. � 1926. � An employer must
comply with these standards if its employees are �engaged in construction
work,� an activity defined as �work for construction, alteration, and/or
repair, including painting and decorating.� � 29 C.F.R. � 1910.12.
� The re-lashing of the dolphin fits
within the standard�s definition of construction and Respondent admits that it
was engaged in construction work. [1] �

For
the Secretary to establish a violation of any OSHA construction standard, he
must prove that: (1) the cited standard applies; (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. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part , 681 F.2d 69 (1st
Cir. 1982). � The Secretary has the burden
of proving each of these elements by a preponderance of the evidence. � Id . �

All
of the standards alleged to have been violated are mandatory safety standards promulgated
pursuant to section 5(a)(2) of the OSH Act (29 U.S.C. � 654(a)(2)) . � Because their requirements must be adhered to
whenever a worker encounters the specified condition, the Secretary is not
required to prove that noncompliance creates a hazard. � See
e.g., Austin Bridge Co., 7 BNA OSHC 1761, 1765-66 (No. 76-93, 1979);
Research-Cottrell, Inc. , 9 BNA OSHC
1489, 1497 (No. 11756, 1981). � Each of
the cited standards also provides specific ways for the employer to eliminate
the hazard, so the Secretary did not need to demonstrate feasibility of
compliance. � See e.g., Modern Continental/Obayashi v. OSHRC , 196 F.3d 274, 282
(1st Cir. 1999) (Secretary did not have to show that fall protection standard
was feasible as applied); Faultless Div.,
Bliss & Laughlin Indus., Inc. v. Sec�y of Labor,
674 F.2d 1177, 1189 (7th Cir. 1982) (Secretary did not have to show feasibility
of machine guarding required by a standard promulgated pursuant to section
5(a)(2)); Long Beach Container Terminal,
Inc. , 811 F.2d 477, 479 (9th Cir. 1987) (employer had the burden to prove
compliance was not possible).

Respondent
raises two affirmative defenses�infeasibility and greater hazard�for which it
bears the burden of proof. � To establish infeasibility,
Respondent must show that: (1) literal compliance with the terms of the cited
standard was infeasible, and (2) an alternative protective measure was used or
there was no feasible alternative measure. �
See e.g., Otis Elevator Co. ,
24 BNA OSHC 1081, 1087 (No. 09-1278, 2013). �
The greater hazard defense requires Respondent to prove: (1) compliance with the hazard is more
hazardous than noncompliance; (2) alternative means of protection are unavailable;
and (3) either a variance has been sought and denied or a variance application
would be inappropriate. � Dole v. Williams Enters., 876 F.2d 186,
188 (D.C. Cir. 1989); True Drilling Co.
v. Donovan , 703 F.2d 1087, 1090 (9th Cir. 1983). �

B.
Violations of Subpart L of the Scaffold Standard
� Items 2a, 2c, and 4a

Items 2a and 2c � Violations of 29 C.F.R. �
1926.451(b )( 2) and (c)(2)(iii) � Width of Scaffold
Platforms and unstable objects used as working platforms

�� In these citation items, the Secretary
alleges that the jitter boards, which could be extended out from the base of
the jilly lift, were scaffold platforms that failed
to comply with scaffold safety standards. �
The cited standard defines �scaffold� as �any temporary elevated
platform � used for supporting employees or materials or both,� and specifies
that a �platform� is �a work surface elevated above lower levels.� � 29 C.F.R. � 1926.450(a). � It requires that �each scaffold platform and
walkway shall be at least 18 inches (46 cm) wide� and precludes �[u] nstable objects� from being used �as a work platform.� � 29 C.F.R. �� 1926.451(b )( 2),
1926.451(c)(2)(iii). � These standards are
found in Subpart L (Scaffolds), which specifically exempts derrick or crane
suspended personnel platforms from its purview. �
29 C.F.R. � 1926.450(a) (Subpart L �does not
apply to crane or derrick suspended personnel platforms�). � See
also Cranes and Derricks in Construction, 75 FR 47906, 47919 (Aug. 9, 2010)
(in the section discussing the amendments to Subpart L, OSHA specified that
�[p] ersonnel platforms suspended by cranes or
derricks are now regulated by � 1926.1431�). � The parties dispute whether this exemption
applies to either the jilly lift or the jitterboards .

a)
Jilly Lift

�� The jilly
lift was suspended by a crane and was not attached to a building or other
permanent structure. � (Tr.
113, 171.) � Accordingly,
Respondent asserts it falls squarely within the exemption to the scaffold standard
for personnel platforms suspended by a crane. �
( Resp�t Br. at 17.) � The Secretary appears to agree with
Respondent that the jilly lift was a crane suspended
personnel platform in that, in connection with Item 5a, he alleges that the jilly lift did not comply with the requirements for such
equipment. � However, the Secretary attempts
to evade the scaffold standard�s exclusion of crane suspended personnel
platforms by arguing that the exception applies only to properly constructed
equipment. � ( Sec�y Br. at n.12.) �
Following this rationale, if a crane suspended platform did not comply
with Subpart CC (the Crane and Derrick Standard) it would then be considered a
scaffold subject to Subpart L. �

The
Court does not find support in either the language of the applicable standards
or known legal authority for the Secretary�s argument that if a crane suspended
platform does not comply with Subpart CC (the Crane and Derrick standard) then,
by default, it becomes a scaffold subject to Subpart L. � See
Crown Pacific v. OSHRC , 197 F.3d 1036, 1040 (9th Cir. 1999) (if the
standard is not ambiguous and plain meaning is contrary to the Secretary�s
interpretation deference is not appropriate). � The cited standard expressly carves out crane suspended
personnel platforms for separate regulation, presumably because of safety
factors unique to hoisted personnel. � 29
C.F.R. � 1926.450(a) (stating that it does not apply to �crane or derrick
suspended personnel platforms�). � Rather
than being dependent upon whether the equipment is compliant, the exception hinges
upon the nature of the equipment, i.e., whether it is or is not a crane or
derrick suspended personnel platform. � 29 C.F.R. �� 1926.450(a), 1926.1431. � And on that question there does not appear to
be a valid dispute�the jilly lift was connected to a
crane and Manson was using it to hoist personnel. � (Stip. 9; Tr. 171.) � Accordingly, the Court finds the jilly lift was a crane suspended personnel platform, not a
scaffold subject to the cited standard. �

b)
Jitter Boards

�� The
Secretary also asks the Court to find the jitter boards were a separate and
distinct piece of equipment that needed to comply with the scaffold standard�s
requirement for scaffold platforms to be at least 18 inches wide and
stable. � ( Sec�y
Br. at 8-9.) � Respondent counters that
the jitter boards are part of a crane suspended personnel platform and
therefore are exempt from the cited scaffold standard. � ( Resp�t
Br. at 17.) �

The record does not sufficiently
support the Secretary�s approach. � The
jitter boards were not free-floating or connected to any other structure, but
were attached to and held in place by equipment suspended by a crane. � (Tr. 113, 656-57.) � Although the jitter boards were not connected
directly to the crane, they were only in the air and available for use when the
crane was hoisting the jilly lift. � Id. � In essence, the jitter boards served as
an extension of the jilly lift, which Manson
specifically designed to accommodate them. �
(Tr. 478, 710.) �
Employees could not use the jitter boards as working platforms except
when they were anchored to the jilly lift, which, as
discussed above, was a crane suspended personnel platform. � (Tr. 113, 656-57.) � Dale Cavanaugh, a retired OSHA Assistant
Regional Administrator, testified that the jitter board �would be a scaffold in
any other application.� � (Tr. 364.) � That may
well be an accurate assessment but the issue before this Court is whether the
scaffold standard applies to the jitter boards as the Respondent was using them. � On this question, for the reasons discussed
above, there is insufficient evidence to support the view that the jitter
boards are not an integral part of a crane suspended personnel platform. �

Complainant
has not established a legal or factual basis for the Court to ignore the
exclusion of suspended personnel platforms in the cited standard as to either
the jilly lift or the jitter boards. [2] � Therefore the Court vacates Items 2a and 2c.

Item 4a � Violation of 29 C.F.R. � 1926.451(g )( 1)(vii) � Failure to Provide Fall Protection to the
Workers on the Jitter Board

As with Items 2a
and 2c, the Secretary also argues in connection with Item 4a that the jitter
boards are a scaffold to which the scaffold fall protection requirements found
in 29 C.F.R. � 1926.451(g)(1)(vi) apply. �
( Sec�y Br. at 14.) � This standard requires employees to be
protected by a personal fall arrest system or a guardrail system when they are
on a scaffold more than 10 feet above a lower level. � 29 C.F.R. � 1926.451(g )( 1)(vii). � There is no dispute that there were no safety
nets or guardrails and the workers were not wearing personal fall arrest
systems. � (Ex. C-5, C-6;
Stip. 10; Resp�t Br. at 5.) � The dispositive issue is whether the jitter
boards are part of a crane suspended personnel platform and therefore exempt
from the cited standard under 29 C.F.R. � 1926.450(a). � On that question, consistently with the
findings above, the Court concludes the Secretary failed to establish the
applicability of the cited standard. � The
jitter boards are an extension of the jilly lift and
could only be used in conjunction with it. �
(Tr. 113, 478, 656-57, 710.) � Accordingly, the entire piece of equipment is
a crane suspended platform exempt from the cited standard under 29 C.F.R.
� 1926.450(a). � As the Secretary has
not established applicability, the Court vacates Item 4a. �

C.
Item 4b � Violation of 29 C.F.R. � 1926.501(b )( 1) � Failure to Provide Fall Protection to the Worker on
top of the Dolphin

Whenever a
worker is on a walking or working surface six feet above a lower level to which
he can fall, he must be protected from falling by �the use of guardrail
systems, safety net systems, or personal fall arrest systems.� � 29 C.F.R. � 1926.501(b )( 1). � The standard broadly defines �lower levels�
to include, among other things, � water ,
equipment, structures and the ground.� �
29 C.F.R. � 1926.500(b) (emphasis added). � The employee observed on top of the dolphin was
not wearing fall protection and was working approximately twenty-four feet
above the water�s surface. � (Tr. 856; Stip. 10; Ex. C-6.) �

As a preliminary
matter, the parties dispute the scope of the Secretary�s burden of proof. � ( Sec�y
Br. at 7; Resp�t Br. at 19.) � Respondent asserts that the cited standard is
performance oriented and, as such, the Secretary must establish a fall would
have presented a hazard to the employee who fell, and that the employer
recognized the hazard. � ( Resp�t Br. at 19.) � According to Respondent, the Secretary did
not meet this burden because any fall from the dolphin would have resulted in
the employee landing in open water as opposed to a hard surface; and the
Secretary failed to establish that falling into open water was a hazard, let
alone a hazard the employer recognized. � Id. at 18-19. � The Secretary disputes Respondent�s
characterization of the cited standard as being performance oriented and argues
instead that it is a specification standard for which the existence of a hazard
is presumed. � ( Sec�y
Br. at 7-8.) � He also disputes
Respondent�s allegation that there was no hazard. � Id. at 12. �

In making its
argument that the Secretary had to prove the presence of a hazard, Respondent
attempts to apply a single Ninth Circuit case, Greyhound-Lines-West v. Marshall, 575 F.2d 759 (9th Cir. 1978),
concerning an entirely different standard related to personal protective
equipment (Subpart E), to the fall protection standards found in Subpart M at
issue here. � ( Resp�t Br. at 19.) �
Performance standards, like the one concerning an employer�s obligation
to identify appropriate personal protective equipment at issue in Greyhound Lines , are broadly written and
�require an employer to identify the hazards peculiar to its own workplace and
determine the steps necessary to abate them.� � Thomas Indus. Coatings, Inc ., 21 BNA OSHC 2283, 2287 (No. 97-1073,
2007). � Performance standards only
require action on the part of the employer if there is a hazard. � Id. � Thus, the Commission has concluded that
the Secretary must show a hazard before an employer is found to have been in violation
of such standards. � Id. � In contrast,
specification standards detail the precise equipment, materials, and work
processes required to eliminate hazards. �
Cleveland Wrecking Co., 24 BNA
OSHC 1103, 1106 (No. 07-0437, 2013) (concluding that the fall protection
requirements found in 29 C.F.R. � 1926.501(c) constitute a specification
standard). � This detail specifying
abatement methods distinguishes a specification standard from a performance
standard. � For specification standards, a
hazard is presumed. � Id. � The fact that a standard
requires the use of personal protective equipment does not mean it is a
performance standard. � Rather, the
determining issue is whether the standard contains the method by which the
hazard is to be abated. � See Ace Sheeting & Repair Co. v. OSHRC ,
555 F.2d 439, 441(5th Cir. 1977) (employer had the duty to show compliance with
guarding standard was not feasible). � If
it does, then the burden of proof is on the employer to demonstrate that the
remedies contained in the standard are not feasible under the particular
circumstances. � Cleveland Wrecking, 24 BNA OSHC at 1106.

The Commission
has consistently treated the standards found in Subpart M-Fall Protection as
specification standards for which the Secretary�s prima facie burden is limited
to showing applicability, violation of the standard, employee exposure, and
knowledge. � See e.g., Modern, 196 F.3d at 282 (Secretary did not have the
burden to show fall protection standard was feasible as applied); Brennan v. OSHRC, 513 F.2d 10232, 1035
(2d Cir. 1975) (same); Fabi Constr. Co., Inc. , 370 F.3d 29, 38
(D.C. Cir. 2004) (fall protection standard treated as specification standard); Nuprecon LP, 23 BNA OSHC 1817, 1818 n.3 (No.
08-1037, 2012) (violation of the fall protection standard, 29 C.F.R.
� 1926.501(b)(1), treated as a specification standard); MJP Constr. Co., Inc. , 19 BNA OSHC 1638,
1642 n.6 (No. 98-0502, 2001) (same). � In Cleveland Wrecking, the Commission
determined that even though the fall protection standard at issue in that case permits
some discretion on the part of the employer, that discretion does not turn the
standard into a performance standard and thus require an expanded burden of
proof. � 24 BNA OSHC at 1106 (discussing
29 C.F.R. � 1926.501(c)). � See also Marion Power Shovel Co., Inc.� 8
BNA OSHC 2244, 2246 (No. 76-4114, 1980) (concluding that 29 C.F.R. � 1926.252(e )( 1)( i ) is a specific duty
standard despite the various alternative methods of compliance permitted).

Just like the fall
protection violation standard at issue in Cleveland
Wrecking , the cited standard here requires fall protection whenever the
walking/working surface with an unprotected side or edge is six feet or more
above a lower level, but permits the employer to choose one of three specified methods. � 29 C.F.R. � 1926.501(b )( 1);
Safety Standards for Fall Protection in the Construction Industry: Final Rule,
59 Fed. Reg. 40672, 40680-40682 (1994) (preamble to the fall
protection standards); Nuprecon , 23 BNA OSHC at 1820. � Although the standard at issue here has some
flexibility, it limits the employer�s choice to one of three specified methods
and employers lack discretion to not provide fall protection. � Id. � The Court finds that 29 C.F.R. � 1926.501(b )( 1) is not a performance standard, and therefore the
Secretary was not required to establish hazard recognition and proof of
industry custom as Respondent alleges. � See e.g. A.E. Burgess Leather Co. v. OSHRC,
576 F.2d 948, 950-51 (5th Cir. 1978) (declining to require proof of hazard
recognition and industry custom in connection with a violation of a machine
guarding standard that permitted various types of compliance). � Instead, the Secretary�s prima facie case
required a showing of applicability, violation of the standard, employee
exposure, and knowledge. � Atlantic Battery Co., 16
BNA OSHC 2131, 2138 (No. 90-1747, 1994).

a)
Applicability

As noted above,
the cited standard requires fall protection for anyone working six feet or more
above a lower level and this requirement does not vary because the lower level
is water, the ground, or a structure. � 29
C.F.R. �� 1926.500(b) (definition of lower level), 1926.501(b )( 1). � In addition to the standard�s plain language,
two OSHA interpretation letters bolster the Secretary�s position. � ( Exs .
C-16 & C-17.) �
These letters emphasize that fall protection is required for employees
working over water, either on a scaffold platform or otherwise. � Id. � OSHA�s Letter of Interpretation dated
February 9, 2004, emphasizes that the �lower level� referred to in � 1926.501
could be water. � (Ex. C-16
at 2.) � The letter also notes that
the provision of life jackets is in addition to the fall protection
requirements, not in lieu of them. � Id. �
An earlier OSHA Letter of Interpretation, dated September 28, 1999, also
emphasized that employers must provide fall protection, not just life jackets,
when the distance from the working platform to the water surface exceeds six
feet. � (Ex. C-17 at 1.) � Indeed, even Respondent appeared to recognize
that the fall protection standards do not make a distinction between falling
onto land and falling into water. � ( Resp�t Br. at 4; Tr. 440-41, 448.) � Therefore, the Court finds that the cited
standard applied. � See Armstrong Steel Erectors, Inc. , 17 BNA OSHC 1385 (No. 92-262,
1995) (concluding that the fall protection requirements applied even when
surface below was water).

The Court notes
that Manson�s Vice President for Equipment, Shawn Hillis, testified that the
company chose to follow the Army Corps of Engineers� EM-385 manual, which requires
fall protection only when working more than 25 feet over water, rather than
OSHA�s more stringent standards. � (Tr. 682-84; Ex. C-26 (excerpt from EM-385 manual).) � The EM-385 manual is not codified, and as
such does not have the force and effect of law. �
BME & Sons,
Inc. , 23 BNA OSHC 1731, 1735 (No. 10-0248, 2011) (Welsh, J.). � Indeed, Manson�s Director of Safety
acknowledged that EM-385 was something the Army Corps put together for
contractors and that it applied to the workers on the jilly
lift, but did not cover the worker on the dolphin. � (Tr. 427, 487.) � So it is not even clear whether Manson
thought the EM-385 exception to fall protection requirements for work over
water applied to the worker on the dolphin. �
(Tr. 487.) �
Further, even if Manson thought the EM-385 manual�s fall protection
requirements applied to the worker on the dolphin, the manual itself indicates that
when more stringent requirements are set out in 29 C.F.R. � 1926, those
requirements take precedence over what is set forth in EM-385. � (Ex. C-26 at 2.) � Thus, in order to follow EM-385, Manson still
needed to comply with the cited standard and provide fall protection to the
worker on the dolphin. �

b)
Violation of 29 C.F.R. � 1926.501(b )( 1)

There is no
dispute that the worker on the dolphin was not using fall protection on
February 13, 2014. � (Stip.
10; Ex. C-5; Tr. 855-56 .) � Respondent argues that if an employee fell,
it could have lowered the jilly lift to rescue him. � ( Resp�t
Br. at 13; Tr. 672.) � It also asserts
that there is no evidence of debris in the water that could have injured a
falling employee and further notes that employees were wearing personal
flotation devices. � ( Resp�t Br. at 18; Tr. 432.) �

Even accepting Respondent�s assertions as true does nothing to undermine
the Secretary�s undisputed evidence that the worker on the dolphin did not have
fall protection as required. [3] � (Stip. 10; Ex. C-5.) � Respondent�s arguments, at best, go to the violation�s
gravity. � The purpose of the OSH Act is
to prevent accidents. � See generally Mineral Indus. & Heavy Constr. Grp. v. OSHRC , 639 F.2d 1289,
1294 (5th Cir. 1981) (�The goal of the Act is to prevent the first accident,
not to serve as a source of consolation for the first victim or his survivors�). � Thus, the fact that an employer has taken a
required step to reduce injury in the event of an accident does not mean that
there has been no violation of a mandatory safety standard. � Id. �

c)
Exposure to the Violative
Condition

�Exposure to a violative condition may be established either by showing
actual exposure or showing access to the hazard was reasonably
predictable.� � Phoenix Roofing Inc. , 17 BNA OSHC 1076, 1079 (No. 90-2148,
1995). � Exhibit C-6 depicts the employee
working atop dolphin without fall protection. �
(Tr. 541.) �
That employee, Anthony Barr, admitted that he could have hit either the
water or the bottom part of the dolphin if he had fallen off the
structure. � (Tr. 541, 615.) � This is sufficient to show actual exposure to
the violative condition. � ��

d)
Respondent Knew, or Should Have Known of the Violative Conditions

The worker on
top of the dolphin was a supervisor and another supervisor was within a few
feet of him on the jilly lift. � (Ex. C-6 at 2-3; Tr. 46, 55.
497-98. ) � See Hamilton Fixture, 16 BNA OSHC 1073, 1089 (No. 88�1720, 1993) (an
employer is chargeable with knowledge of conditions which are plainly visible
to its supervisory personnel), aff'd
without published opinion , 28 F.3d 1213 (6th Cir.1994); Minnotte Contracting & Erection Corp ., 6 BNA OSHC 1369, 1371-72 (No.
15919, 1978) (employees working without tied-off safety belts were in plain
view and within sight of a foreman) . � CO Scott witnessed and videotaped
the worker on top of the dolphin from a public road. � (Tr. 36, 38.) � The lack of fall protection was open,
obvious, and in plain view. � Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016 (No.
13390, 1981) (a leadman �would have been in a
position to observe� the employee in the hazardous situation) ; Am. Airlines, Inc., 17 BNA OSHC 1552,
1555 (No. 93-1817, 1996) (consolidated) (finding knowledge when conditions were
in plain view and supervisory personnel were present) . � This is
sufficient to establish Respondent�s knowledge of the violative
condition.

Affirmative Defenses

a)
Infeasibility Defense

An employer
arguing that compliance with a standard was infeasible must show that: (1)
literal compliance with the terms of the cited standard was infeasible, and (2)
an alternative protective measure was used or there was no feasible alternative
measure. � Rockwell Int�l Corp ., 17 BNA OSHC 1801, 1807 (No. 93-54, 1996)
(consol.); Avcon Inc., et al., 23 BNA OSHC 1440, 1454
(No. 98-0755, 2011) (consol.); E&R
Erectors, Inc. v. Sec�y of Labor , 107 F.3d 157,
163 (3d Cir. 1997) (�[t]he burden of establishing an affirmative defense is on
the employer, and every element must be established�). � It is not enough to show that compliance is
difficult, expensive, or would require changes to operations. � See
Long Beach , 811 F.2d at 479 (a workable method of abatement defeated
defense); Hughes Bros., Inc ., 6 BNA
OSHC 1830, 1835 (No. 12523, 1978) (difficulty of compliance was not sufficient
to defeat citation); Gregory & Cook
Inc ., 17 BNA OSHC 1189, 1190-92 (No. 92-1891, 1995) (guarding was
technologically and economically feasible). �

In terms of the
first element of the defense, feasibility of compliance, as discussed above,
the cited standard required employees to be protected by �a guardrail system,
safety net system, or personal fall arrest system.� � 29 C.F.R. � 1926.501(b )( 1). � (Tr. 139.) � Manson only discusses why it believes that a
personal fall arrest system would have been infeasible. [4] � (Tr. 768.) � See Dun-Par Engineered Form Co., 13 BNA OSHC 2147, 2149 (No.
79-2553, 1989) (requiring proof as to why each fall protection method permitted
by the standard was not feasible). � According to Manson, personal fall arrest
systems were infeasible because there was no suitable anchor point for such a
system. � ( Resp�t
Br. at 20-21.) � In addition, Bradley Dillon, of Guardian Fall
Protection, gave expert testimony that it would not be possible for a worker to
remain in fall restraint at all times because of the dolphin�s shape. � (Tr. 782.) �

Mr. Barr, the
Manson supervisor who was on top of the dolphin, testified that the pilings
which make up the dolphin were in such poor condition at the top that he would
not have used them for an anchor point on top of the dolphin. � (Tr. 552.) � Despite this assertion, Mr. Barr acknowledged
that he had not examined the steel plate at the top of the dolphin. � (Tr. 552, 589-90, 601.) � Nor did Manson�s safety director (Moore) or
its fall protection expert (Dillon) examine the steel plate or the rest of the dolphin
before the decision not to use fall protection was made. � (Tr. 449, 787) � The steel plate was 3/4 of an inch thick and
had a shackle used to hold ferries in place at night. [5] � (Tr. 372; Ex. C-11
(schematic of dolphin).) � Brian Endres , who was employed by the Washington State Department
of Transportation (DOT), testified that he had no reason to believe that the
steel plate and shackle were not firmly welded to the dolphin. � (Tr. 848.) � He indicated that when DOT employees work on
the dolphins, they use fall protection. � (Tr. 857-58.) � Former OSHA
Assistant Regional Administrator Cavanaugh also testified as to his belief that
the steel plate and shackle could have been used as an anchor point. � (Tr. 375, 880, 901.) � Indeed, the shackles on the dolphins were
used to moor 400-ton ferries. � (Tr. 850.) � Further,
Manson did not explain why, if the steel plate had not been firmly in place, it
could not have been welded sufficiently to make it a suitable anchor
point. � (Tr. 499.) � All of these considerations undermine Manson�s
contention that there were no means available to anchor a fall restraint system. � See So.
Pan Servs ., Co., 21 BNA OSHC 1274, 1278 (No.
99-0933, 2005) (requiring site specific evaluation of the availability of fall
protection for leading edge work). �

Manson also argues that
there was not enough room on the top of the dolphin to use a fall arrest
system. � ( Resp�t Br. at 21.) �
Mr. Dillon testified that a 22 feet minimum fall clearance is required
for a worker wearing a full body harness with an anchor point at foot
level. � (Tr. 856.) � He noted that OSHA would calculate a lower
minimum (nineteen feet). � (Tr. 764.) � Still, he opined
that 22 feet was required if the calculation was made according to the
assumptions set out in the American National Standards Institute (ANSI)
voluntary consensus standard. � Id. �

Regardless of whether the
fall clearance is calculated consistently with the OSHA methodology or the ANSI
standard, the Court finds that Manson failed to show there was insufficient
room for a fall arrest system. � At the trial,
Manson�s counsel represented to witnesses that the dolphin was twenty feet
above the water, but all of the witnesses described the height as one to five
feet greater than that. [6] � (Tr. 57, 669, 757, 856,
810.) � CO Scott estimated the
height to be �roughly� twenty-one feet. � (Tr. 57.) � Mr. Endres of the DOT calculated the dolphin�s height to be approximately
twenty-four feet above the surface of the water. � (Tr. 855-56.) � His estimate is consistent with that of Mr.
Hillis, Manson�s Vice President of Equipment, who indicated that the dolphin
was about twenty-five feet high, and the schematic of the dolphin, which
indicates a total height of twenty-eight feet. �
(Tr. 668-69; Ex. C-11.) � Thus, Manson�s counsel�s unsupported
representation that the person on top of the dolphin was twenty feet above the
water is rejected. � Since Mr. Dillion�s
opinion about whether there was sufficient height for a fall arrest system was
based on counsel�s unsupported representation of height, it is given less
weight. � It is unclear if he would have
had the same opinion had he been told that the height of the dolphin was more
than twenty-one feet high. � Considering
the discrepancies, the Court finds that it does not have sufficient information
to conclude that the dolphin was not high enough to permit appropriate fall
protection. �

Finally, Manson argues that
a fall restraint system would not be feasible because of the dolphin�s irregular
shape. � ( Resp�t Br. at 21.) �
However, Manson never explained why the irregular shape rendered all
fall restraint systems infeasible. � Some
fall restraint systems prevent a worker from getting close enough to the edge
to fall, while others permit workers to move about more, because they have a
longer reach, but lock in the event of a fall. �
(Tr. 370.) �
29 C.F.R. � 1926.500 (defining personal fall arrest
system and self-retracting lifeline/lanyard). � Mr. Barr conceded that a self-retracting
lanyard would have prevented him from falling very far and former Assistant
Regional Administrator Cavanaugh indicated that such a system could be
feasible. � (Tr. 601-2,
901-2.) � Mr. Dillion
asserted that he was not aware of a self-retracting lanyard certified to be
appropriate for use with an anchor point at foot level that was available at
the time of the inspection. � (Tr. 455-56.) � He
appeared to acknowledge that such systems were available�indeed they have been
defined in 29 C.F.R. � 1926.501 since it first became a final rule in
1994. � (Tr. 455.) � However, he asserted that he was not aware of
a system that had been �certified� for use with an anchor point at foot level. � Id. � He was not asked, and did not explain, whether
he was referring to an OSHA certification or one to be provided by a
manufacturer. � (Tr. 454-56.) � Nor did he indicate when certified systems
became available. � Id. � Finally, he limited his
opinion solely to his awareness of self-retracting systems with an anchor point
at a worker�s feet. � (Tr.
455.) � He did not address systems
with anchor points at a higher point and Respondent offered no clarification in
its brief. [7] � In contrast, Mr. Cavanaugh indicated that the
anchor point did not need to be at the worker�s feet because Manson could have
welded a pole to the steel plate at the top of the dolphin. � (Tr. 901.)

Even accepting
that a certified self-retracting lanyard with an anchor point at foot level was
not available, Respondent did establish why it could not have implemented a
guardrail or safety net system . � (Tr.
779, 781-3.) � Area Director Baker indicated
that a guardrail system could have been used and Respondent does not refute such
assertion. � (Tr. 244.) � Because this is an affirmative
defense, Manson had the burden to show compliance was infeasible, and its
failure to offer sufficient evidence on why each of the standard�s
specified systems was infeasible defeats the defense. � See Altor,
Inc. , 23 BNA OSHC 1458, 1470 (No. 99-0958, 2011) (rejecting infeasibility
defense in connection with a fall protection violation); MJP , 19 BNA OSHC at 1643 (rejecting feasibility defense in
connection with violations of 29 C.F.R. � 1926.501(b)).

Finally, even if
Manson had shown that literal compliance was infeasible, it failed to satisfy
the second element of its burden�that an alternative protective measure was
used or there was no feasible alternative measure. � See MJP,
19 BNA OSHC at 1642. � Manson did not employ
any method of fall protection for the worker on top of the dolphin. � When an employer cannot fully comply with the literal terms
of a standard, it must nevertheless comply to the
extent feasible. � See Walker Towing Corp. , 14 BNA OSHC 2072, 2075 (No. 87-1359, 1991)
(finding that limited guardrails may have been feasible and that therefore the
defense was not established). � There
is no evidence that Manson considered the feasibility of fall protection at the
worksite, prior to the inspection, let alone implemented any alternative
measures. � See So. Pan, 21 BNA
OSHC at 1278 (requiring a site specific analysis of the need for fall
protection); MJP, 19 BNA OSHC at 1642
(rejecting defense when employer failed to establish that alternative means of
protection were being used or were unavailable). � Thus, as Manson failed to demonstrate either
the infeasibility of implementing any one of the methods of fall protection specified
in the standard or the informed absence of other steps which could have been
taken, its affirmative defense of infeasibility is rejected. �

b)
Greater Hazard

To the extent that
Respondent intended to raise the greater hazard defense, the Court notes that
this defense requires the employer to prove each of the following elements: (1)
compliance with the hazard is more hazardous than noncompliance; (2)
alternative means of protection are unavailable; and (3) either a variance has
been sought and denied or a variance application would be inappropriate. � Dole, 876 F.2d at 188; True
Drilling , 703 F.2d at 1090. �

As discussed above, the
cited standard permits the use of safety nets, fall arrest systems, or
guardrails as methods of fall protection. �
29 C.F.R. � 1926.501(b )( 1). � While Manson offered evidence about whether safety nets and
personal fall arrest systems would present a greater hazard, it did not present
evidence on whether the use of guardrails would have created a greater hazard. � (Tr. 555, 729.) � See State Sheet Metal Co., 16 BNA OSHC 1155, 1159 (No.
90-1620, 1993) (consol.). �
Manson also has not applied for a variance or explained why doing so
would be inappropriate. � See Spancrete Ne.,
Inc., 15 BNA OSHC 1020, 1022-23 (No. 86-521, 1991) (�We need not inquire
whether [the employer] has proved the first two elements of the defense,
because it is clear that the company has introduced no evidence on the third�);
Loomis Cabinet Co. v. OSHRC, 20 F.3d
938, 943 (9th Cir. 1994) (greater hazard defense cannot be raised without the
employer �first exhausting the procedures for obtaining a variance�); Altor , 23 BNA OSHC at 1470 (rejecting
greater hazard defense in connection with a fall protection violation when
there was no explanation for not seeking a variance). � Instead of rejecting the defense on the basis
of this failure, the Court discusses remaining requirements.

Concerning the first element
of the defense, Paul Huber, a professional engineer and manager at Manson, gave
expert testimony concerning the suitability of safety nets as fall
protection. � (Tr. 728.) � He indicated that it would be safer to fall
into open water where there are no obstructions rather than into a safety
net. � (Tr. 729.) � His opinion was limited to situations where a
person would encounter no obstructions in the fall. � Id. �

However, Manson did not
establish that a person falling from the dolphin would not encounter any
obstructions. � First, the dolphin tilted
at an angle such that an employee falling off the top could strike the base,
which was wider than the top. � (Tr. 56, 70, 179-80, 641; Ex. C-11.) � Second, even though the video does not appear
to show debris near the base of the dolphin when the photograph was taken, Area
Director Baker and CO DeLach both testified that
debris was frequently present in the water of Puget Sound. � (Tr. 170, 236-37, 263-64.) � Third, a person falling off the dolphin could
strike the jilly lift. � (Ex. C-6; Tr. 175.) � Besides the possibility of obstructions, the
Secretary also presented evidence that falling into open water was a serious
hazard. � (Tr. 174, 265.) � Thus, the Court finds that Manson did not
establish that using a safety net would have created a greater hazard than
providing no fall protection. �

Manson also argues that it
could not use the personal fall arrest systems permitted by the standard,
because doing so would have introduced a tripping hazard. � (Tr. 555, 557.) � That possibility is insufficient to excuse noncompliance
with the cited standard. � See Forest Park Roofing Co ., 8 BNA OSHC 1181, 1185
(No. 76-1844, 1980) (noting that safety lines could create a trip hazard but
finding that insufficient to establish greater hazard defense for a
violation of the fall protection requirements found in 29 C.F.R. � 1926.28(a) ); J.W. Conway, Inc., 7 BNA OSHC 1718, 1719
(No. 15942, 1979) (rejecting the argument that the possibility of a trip hazard
rendered fall protection infeasible). � As
former OSHA Assistant Regional Administrator Cavanaugh testified, crews can be
trained to avoid the trip hazard when the anchor is at floor level. � (Tr. 880.) � Further, as discussed above, although Mr. Barr indicated that
an anchor point at the level of his feet would have created a trip hazard,
neither he nor any other witness established that this risk was greater than
the risk associated from noncompliance. [8] � (Tr. 720.) � Mr. Barr acknowledged that a self-retracting
lanyard system attached to an anchor would have limited his fall. � (Tr. 555, 601-2.) � The fact that compliance may create a
different hazard is not sufficient to establish the defense. � See
Marion, 8 BNA OSHC at 2248; Forest ,
8 BNA OSHC at 1185. �

In any event, even if Manson
had shown that compliance with the standard would be more hazardous than
noncompliance, Manson failed to establish the other elements of the defense�that
alternative means of protection were unavailable and that it either sought a
variance or that a variance application would be inappropriate. � As for the availability of alternative means
of protection, while Manson offered testimony as to why safety nets could not be
used, it did not establish that there was not any type of personal fall arrest
system that could have been implemented. �
(Tr. 729.) �
It did not explain why a guardrail system could not have been
implemented. � See State Sheet,
16 BNA OSHC at 1159 (�[b] efore an employer elects to
ignore the requirements of a standard because it believes that compliance
creates a greater hazard, the employer must explore all possible alternatives
and is not limited to those methods of protection listed in the standard�). � ��

Finally, as to the third
element of the defense, Manson never sought a variance for any of its work
practices, including those related to fall protection. � (Tr. 451.) � In its brief, Respondent argues that it was
justified in not seeking a variance due to time constraints it was under to
make repairs. � ( Resp�t
Br. at 22-23.) � Even if this Court were
to assume that the need to perform the work quickly could excuse a failure to
apply for a variance, the Court finds that Manson did not establish that it did
not have time to seek a variance from the requirement to have fall protection
when employees worked from the top of dolphins. �
Manson regularly performed work at the ferry terminal and employees had
re-lashed dolphins before. � (Tr. 428.) � While it
may have been that on the first occasion of performing such work applying for
the variance would have been difficult, Manson could have done so after the
fact, knowing that it would be called on again to perform similar tasks. � �The variance requirement is very much a part
of an employer�s burden of the affirmative defense of greater hazard.� � Spancrete , 15 BNA OSHC at 1023. � The Court finds that Manson failed to
establish any of the elements of the affirmative defense of greater hazard and
thus rejects the defense. �

Characterization and Penalty

Manson claims
that falling into the water from the dolphin could not result in death or
serious physical injury. � ( Resp�t Br. at 18-19.) �
The Secretary disputes this, arguing that the dolphin tilted at an angle
and so a worker might not fall directly into the water and asserts that even a
direct fall into the water could result in serious injuries or death. � ( Sec�y
Br. at 12-13, 20; Tr. 70, 174,179-80, 287, 367.) �

A violation is
classified as serious under section 17(k) of the Act if �there is substantial probability
that death or serious physical harm could result� if an accident occurred. � 29 U.S.C. � 666(k); Compass Envtl ., Inc ., 23 BNA OSHC 1132,
1136 (No. 06-1036, 2010), aff'd , 663
F.3d 1164 (10th Cir. 2011). � Substantial
probability �refers not to the probability that an accident will occur but to
the probability that, an accident having occurred, death or serious injury
could result.� � Illinois Power Co. v. OSHRC , 632 F.2d
25, 28 (7th Cir. 1980). � If the
harm the standard was intended to prevent is �death or serious injury, a
violation of the regulation is serious per se.� �
Phelps Dodge
Corp., v. OSHRC , 775 F.2d 1237, 1240 (9th Cir. 1984). �

The Secretary
offered evidence about injuries from a fall and the risk of inhalation if a
worker tumbled into water from a trip or fall. �
(Tr. 262, 287.) �
CO Scott explained that a worker falling from the dolphin
could strike the jilly lift or the dolphin itself on
his way down and this could result in serious injury. [9] � (Tr. 70-71.) � In addition, a person falling into the water
could strike debris. [10] � (Tr. 263-64, 298, 366.) � CO DeLach agreed
with CO Scott�s assessment of the seriousness of this item. � (Tr. 177, 265.) � He elaborated that the injuries could be
serious and permanent and even result in death. �
(Tr. 175, 179.) �
Further, the average temperature of water near the Vashon Island ferry
terminal in February is 46 degrees Fahrenheit. �
(Ex. 30 (temperature table); Tr. 298.) � As CO DeLach
explained, a person falling into cold water such as this has a tendency to
inhale due to the shock of the cold water. �
(Tr. 262.) �
This can lead to drowning. � Id. �
Former Assistant Regional Administrator Cavanaugh also testified that
because the fall would be into water, drowning was a possibility. � (Tr. 174, 407.) � The Court finds the violation is properly
classified as a serious citation. � See Boh Bros.
Constr., Co., 24 BNA OSHC 1067, 1075 (No. 09-1072, 2013) (affirming judge�s
determination that exposure to water related hazards such as drowning was
serious); Peavey Co. , 16 BNA OSHC
2022 (No. 89-2836, 1994) (affirming a violation for a lack of fall protection
on rail cars as serious). � In the event
of an accident from the violation, there was a substantial probability of serious
injuries.

The OSH Act
imposes a penalty of up to $7,000 for a serious violation. [11] � 29 C.F.R. � 666(b). � As the final arbiter of penalties, the
Commission must give due consideration to the gravity of the violation and to
the employer�s size, history, and good faith. �
J.A. Jones
Constr. Co. , 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). � These factors are not necessarily accorded
equal weight, and gravity is generally the most important factor. � Trinity Indus., Inc ., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). � Gravity depends upon such matters as the
number of employees exposed, duration of exposure, precautions taken against
injury, and the likelihood that an injury would result. � J.A.
Jones , 15 BNA OSHC at 2213-14.

Evaluating the
gravity of the violation, the Court finds that although the injury from a fall
could have been minor, it also could have been catastrophic. � (Tr. 71, 177, 179, 262.) � CO Scott indicated that he saw one employee
working without fall protection from the top of the dolphin. � (Tr. 70.) � The employee was working on the edge of
the dolphin, increasing the risk that a fall would bring him over the
edge. � (Tr. 179.) � Manson did take some precautions, by providing
personal flotation devices and a lifesaving skiff, which could
potentially reduce the harm caused by a fall. �
(Tr. 177.) �
However, these precautions did not lessen the likelihood of a fall. � (Tr. 177-79.) � Manson is a large employer with over
250 employees. � (Tr.
176.) � It has been cited for a
serious violation within the past five years. �
(Tr. 176, 179, 237.) � As for good faith, although Manson had some
safety policies, it did not fully comply with them for this project. � The Secretary initially proposed a $6,000
combined penalty for Citation 1, Items 4a, b and c. � (Tr. 12.) � As noted above the Secretary withdrew
Citation 1, Item 4c and the Court vacated Citation 1, Item 4a. � The Court reduces the penalty commensurately
with the reduction of citation items. � Having
considered all of the penalty factors, the Court finds that a penalty of $3,500
is an appropriate penalty amount for Citation 1, Item 4b.

D.
Item 5a � Violation of 29 C.F.R. � 1926.1431(b )( 1) � Guarding of personnel platform

The cited
standard, found in Subpart CC, Cranes and Derricks in Construction, requires
that platforms used to hoist employees must comply with specified guarding
requirements. [12] � 29 C.F.R. � 1926.1431(b )( 1). � The Secretary
alleges that the jilly lift used by Manson employees
is a personnel platform within the meaning of the cited standard and that it
was not equipped with a guardrail system as required. � ( Sec�y
Br. at 18-19; Stip. 8.) �
Respondent does not appear to dispute the merits of this citation item,
but does assert the affirmative defenses of infeasibility and greater hazard. � ( Resp�t
Br. at 23.) � It also argues that
if its defenses are rejected, the violation should not be characterized as
serious. � Id . at 18-19, 23.

Secretary�s prima facie case- applicability,
violation, exposure and knowledge

The jilly lift was suspended from a derrick-mounted crane and
used to hoist employees from the derrick�s deck to the dolphin. � (Tr. 71; Stip. 7.) � According to CO Scott, this means it was a �personnel
platform,� within the meaning of the standard. �
(Tr. 46, 71.) �
Manson�s engineer appeared to agree with this assessment when he
indicated that he had consulted the requirements for personal lifting systems
found in ASME B-30.23 and the OSHA standards for personnel platforms when designing
the jilly lift. �
(Tr. 706-7.) �
The Court concurs and concludes that the jilly
lift was a personnel platform being used to hoist personnel and therefore it
needed to comply with the cited standard�s guarding requirements. �

Specifically, the
cited standard requires personnel platforms to be equipped with a guardrail
system that meets the requirements of Subpart M (Fall Protection). � 29 C.F.R. �� 1926.1431(b )( 1), 1926.1431(e). �
Under Subpart M, the personnel platform needs a guardrail system, safety
net, or personal fall arrest system when employees are six feet or more above a
lower level. [13] � 29 C.F.R. � 1926.501(b )( 1). � It is undisputed that no safety net was being
used and that employees were not wearing a personal fall arrest system. � (Stip. 10, 11; Ex. C-5.) � Without such protections, the jilly lift needed to have guardrails around all four
sides. � (Tr. 148.) � However, the guardrail system only went around
three sides. � (Ex. C-5;
Stip. 11; Tr. 72.) � The fourth
side was open, with neither a grab rail nor a toe board. � Id. � Therefore, the Court agrees that the jilly lift did not comply with the requirements of 29
C.F.R. � 1926.1431(b )( 1). �

Relevant to employee
exposure to the cited condition, CO Scott observed three employees on the jilly lift with the unguarded side. � ( Exs .
C-5, C-6; Tr. 36, 186.) � Although a chain could have been attached to
the open side, Manson�s foreman indicated that no one engaged the chain when
the workers were being hoisted to the dolphin on February 13, 2014. � (Tr. 605.) � This evidence is not contested, and the Court
concludes that the Secretary established exposure to the violative
condition. � See Phoenix
Roofing , 17 BNA OSHC at
1079 (actual exposure to unguarded skylight established exposure).

Finally, in
terms of knowledge, the three sided jilly lift was
being used in the open by at least two supervisors. � (Ex. C-6.) � As noted above, the foreman was aware that
one side of the jilly lift was completely open. � (Tr. 604-5.) � Manson�s Vice President for Equipment (Hillis)
was also aware that the jilly had an open side. � (Tr. 666.) � He acknowledged that he was aware that the jilly lift was being used even though its guardrail system
only protected three sides. � (Tr. 667-8.) � In
addition, there is no dispute that CO Scott witnessed and videotaped the violative condition from a public road. � (Tr. 37-38.) �
Accordingly, the Court finds that Respondent knew of the violative condition. �
See Hamilton Fixture, 16 BNA
OSHC at 1089; Ted Wilkerson , 9 BNA OSHC at 2016 ;
Am. Airlines, 17 BNA OSHC at 1555 . �

Affirmative Defenses

a)
Infeasibility

As discussed
above, to establish the affirmative defense of infeasibility, an employer must
show: (1) literal compliance with the terms of the cited standard was
infeasible, and (2) an alternative protective measure was used or there was no
feasible alternative measure. � Otis , 24 BNA OSHC at 1087. � Respondent argues that in order to perform
the lashing work it was necessary for the jilly lift to
have an open side because of the amount of force it takes to drive the staples
into the dolphin. � ( Resp�t Br. at 23.) �
As for the second element of the burden, Respondent alleges that
alternative protective measures could not have been implemented because they would
create pinching and/or ergonomic hazards. �
Id. � The Secretary responds by arguing that
Respondent failed to show either infeasibility or that there were no feasible
alternative measures of fall protection that could have been implemented. � Id. at 28.

With respect to whether
literal compliance with the standard was possible, Mr. Huber, the professional
engineer who designed the jilly lift, acknowledged
that it was possible to install a fourth guardrail. � (Tr. 739-40.) � Likewise, Mr. Barr acknowledged that they
could weld almost anything onto the jilly lift. � (Tr. 612.) � Mr. Huber also admitted that Manson had
enough money to build a jilly lift that would protect
workers in a manner consistent with OSHA standards. � (Tr. 741-42.) �

Respondent does
not dispute this evidence showing it was technically possible for the jilly lift to comply with the standard�s requirements. � Instead, it argues that a complete guardrail
system would have precluded the necessary work from being done. � However, Mr. Barr admitted that he hammered
staples into the dolphin at chest height, which would be sufficiently above the
level of a guardrail. � (Tr.
606.) � Although he noted that some
workers prefer to hammer at different levels, he indicated that this was a
matter of personal preference, not work necessity. � Id. � And it appears that at least one other worker
also hammered the staples in at chest level, as the video shows Greg Stewart
hammering staples into the dolphin above the level of where a compliant
guardrail would have been. � (Ex. C-5.) �

Further, even if
it was not possible to conduct all of the lashing work with a fourth guardrail
in place, this only goes to one instance in the use of the jilly
lift�when the lashing work was being performed. �
This argument does not shield application of this standard when the
personnel platform was being used to hoist or move employees rather than for
actual lashing work. � 29
C.F.R. � 1926.1431; Cranes and Derricks in Construction, 75 FR 47906,
47911 (Aug. 9, 2010) (� 1926.1431 �addresses fall protection when
employees are being hoisted�). � Manson
offers no explanation as to why it would be infeasible for the jilly lift to have been enclosed when it was being used to
lift employees to the height of the top of the dolphin or when employees were
being transported to the work site. � ( Resp�t Br. at 23.) � Manson�s engineer acknowledged that it would
be possible to install a compliant removable guardrail, so the workers could at
least have been protected during lifting operations even if the rail had to be
removed occasionally for certain work. � (Tr. 739-40.)

Finally, Manson
does not offer evidence of any alternative protection used, or why such
alternative protection was infeasible during the lifting operation. � For example, the jilly
lift had a stanchion for a chain to go across the side that did not have guardrails. � (Tr. 604.) � Manson fails to explain why this could not have
been used while the jilly lift was hoisting employees
or during other operations. � (Tr. 605.) � Thus, the
Court finds that Respondent failed to establish the defense of
infeasibility. �

b)
Greater Hazard

�� Manson
argues that putting up the guardrail during lashing operations would have
exposed workers to a pinch point and ergonomic hazards. � ( Resp�t
Br. at 23; Tr. 691.) � With respect
to the pinch point, a Manson pile driver testified that the work could still be
accomplished and the pinch point avoided if the jilly
lift was lowered so that the guardrail would not be in the line of work. � (Tr. 607.) � As for the ergonomic hazard, Manson�s Vice
President for Equipment, Mr. Hillis, testified that lowering the jilly lift to avoid the pinch hazard would create an
ergonomic hazard. � (Tr.
681.) � However, Manson never did
an ergonomic evaluation of lashing work conducted from the jilly
lift and did not offer other evidence to support this view point. � Id. �

Further, Manson offers
no explanation as to what greater hazard would have been present if there had
been a guardrail in place during operations other than lashing. � The Secretary did not target this citation to
Respondent�s failure to have a guardrail during lashing, and both of the
potential alternative hazards suggested by Respondent would occur (if at all) only
during such work, not lifting or transport operations. � (Tr. 681.) � Nor does Manson explain why other types of
fall protection, such as a fall arrest system could not have been used during
operations when a guardrail presented a hazard. [14] �

Finally, Manson
acknowledges that it never sought a variance and does not even acknowledge that
such an application would have been appropriate. � (Tr. 451.) � Altor , 23 BNA OSHC at 1470; Loomis Cabinet , 20
F.3d at 43 . � Accordingly,
Respondent did not meet its burden of proof with regard to showing a greater
hazard. �

Characterization and Penalty

As discussed
above, a violation is classified as serious if �there is substantial probability
that death or serious physical harm could result� if an accident occurred. � 29 U.S.C. � 666(k); Compass , 23 BNA OSHC at 1136; Illinois Power , 632 F.2d at 28; Phelps Dodge , 775 F.2d at 1240. � When assessing penalties, the Commission must
give due consideration to the gravity of the violation and to the employer�s
size, history, and good faith. � J.A. Jones , 15 BNA OSHC
at 2213-14; Trinity , 15 BNA OSHC at
1483. �

Manson�s Vice
President for Equipment, Mr. Hillis, acknowledged that employees could fall off
the open side of the jilly lift. � (Tr. 667.) � However, Manson claims that such a fall could
not result in death or serious physical injury. �
( Resp�t Br. at 18-19.) � The Secretary disputes this, arguing that the
violation was appropriately characterized as serious and warrants the proposed
penalty of $7,000. � (Tr.
12, 71.) �

Four of the
Secretary�s witnesses challenged Manson�s assertion that a fall from the jilly lift could not result in serious physical harm. � CO Scott, CO DeLach ,
Area Director Baker and former Assistant Regional Administrator Cavanaugh all
testified that a fall from the jilly lift could have
resulted in serious physical harm. � (Tr. 69, 181, 298, 365.) �
CO Scott testified that a worker falling from the jilly
lift could strike the dolphin or hit the water in a way that could cause
serious injury. � (Tr.
65, 69, 72, 75.) � CO DeLach noted that the temperature of the water created a
drowning hazard as a person has a tendency to inhale when exposed to cold
water. � (Tr. 262, 298.) � The Court finds the violation is
properly classified as a serious citation. �
In the event of an accident from the violation, there is a substantial
probability of serious injury.

Three employees
were exposed to a fall hazard due to the lack of compliant guarding on the jilly lift. � (Tr. 186, 298.) � Employees
could lose their balance and either strike the inside of the lift or be ejected
from it. � (Tr. 186.) � While they might fall directly into the
water, it was also possible that they could hit the dolphin itself, a nearby
boat, or debris. � (Tr.
298, 367.) � An employee also could
get caught between the jilly lift and the dolphin
itself. � (Tr. 186.) � For the same reasons set forth above in
connection with the Court�s findings for Item 4(b), the Court concludes that
Manson is not entitled to penalty reductions for history or size. � The Court notes the efforts of Manson to
address the hazards with the use of PPE, rescue skiffs and the like. Thus,
having considered all of the penalty factors, the Court finds that a penalty of
$6,000 is appropriate.

E.
Item 6 � Violation of 29 C.F.R. � 1926.1431(k )( 3) � Securing Personnel Platforms

The cited
standard requires personnel platforms to be secured to the structure where the
work is to be performed when employees are entering or exiting the platforms,
unless the employer can demonstrate that securing to the structure would create
a greater hazard. [15] � 29 C.F.R. � 1926.1431(k )( 3). � The Secretary
alleges that the jilly lift used by Manson employees
is a personnel platform within the meaning of this standard and that it was not
secured to the dolphin when the worker left the top of the dolphin to return to
the jilly lift. �
( Sec�y Br. at 20.) � Manson disputes the Secretary�s allegation
that it did not comply with the standard. �
( Resp�t Br. at 9, 24.) � It alleges a process called �over booming�,
wherein the crane operator brought the jilly lift up
against the dolphin and then pushed the suspension point further toward the
middle of the dolphin, was tantamount to securing the lift to the dolphin and
therefore compliant to the cited requirement. �
Id . at 24. � It also alleges that the Secretary had the
burden of proving specific and technologically feasible methods of compliance
and failed to do so. � Id. �
Finally, Respondent raises the affirmative defense of greater
hazard. � Id. �

Secretary�s prima facie case

As noted above,
Respondent alleges the Secretary had the burden to prove specific and
technologically feasible methods of compliance. �
( Resp�t Br. at 24.) � However, The Commission has long held the
burden of proving feasibility does not pertain to violations of section 5(a)(2)
of the OSH Act such as those alleged in this item. � See
e.g., Research , 9 BNA OSHC at 1497. � Other
than in connection with personal protective equipment standards, neither the
D.C. Circuit nor the Ninth Circuit departs from Commission precedent which does
not require the Secretary to prove feasibility to establish violation of a
standard promulgated under section 5(a )( 2) of the OSH
Act. [16] � See
e.g., Long Beach , 811 F.2d at 479; Nat�l
Steel & Shipbuilding Co. v. OSHRC , 607 F.2d 311, 313 (9th Cir. 1979)
(not requiring a showing of feasibility in connection with an alleged violation
of a scaffold standard); A.J. McNulty
& Co ., 283 F.3d 328, 335 (D.C. Cir. 2002) (allegation that compliance
was impossible or infeasible was an affirmative defense). � Nor has any other circuit court held that the
Secretary must prove feasibility in connection with a violation of 29 C.F.R.
� 1926.1431(k )( 3). �

Similarly, the
Secretary�s prima facie burden is not altered by the fact that 29 C.F.R.
� 1926.1431(k )( 3) includes an express reference
to the greater hazard defense. � The cited
provision specifically states that platforms �must be secured to the structure
where the work is to be performed, unless the employer can demonstrate that securing to the structure would
create a greater hazard.� � 29 C.F.R.
� 1926.1431(k )( 3) (emphasis added). � This language is explicitly consistent with the
usual rule that employers have the burden of establishing that compliance with
a standard creates a greater hazard than non-compliance. � See C.J.
Hughes Constr. Inc., 17 BNA OSHC 1753, 1756 (No. 93-3177, 1996) (noting
that a party seeking �the benefit of an exception to a legal requirement has
the burden of proof to show that it qualifies for the exception�); Avcon , 23 BNA OSHC at 1454 (concluding that
the employer had the burden to show that the exception to fall protection
requirements contained in 29 C.F.R. � 1926.501(b)(2) applied); L&L Painting Co., Inc., 23 BNA OSHC
1986, 1991 (No. 05-0055, 2012) (employer had the burden of proving that
historical monitoring exception applied); A.J.
McNulty , 283 F.3d at 225 (concluding that the employer had the burden to
show that the feasibility exception contained in 29 C.F.R.
� 1926.501(b)(2)( i ) applied). � In Falcon
Steel Co ., 16 BNA OSHC 1179 (No. 89-2883, 1993) (consol.), the employer
argued that because greater hazard and impossibility were integral parts of the
fall hazard standard at issue (29 C.F.R. � 1926.550(g)) the Secretary should
have the burden to prove them. � 16 BNA OSHC at 1181. �
The Commission rejected this claim. �
Id. � The Crane and Derrick fall hazard standard
at issue in Falcon generally
prohibited certain conduct unless certain alternatives �would be more
hazardous� or �not possible because of structural design or worksite conditions.� � Id.
at 1181 n.3 (discussing 29 C.F.R. � 1926.550, which at the time addressed
the use of crane or derrick suspended personnel platforms). � Even though the standard at issue in Falcon did not indicate which party had
the burden to prove that the exception applied, the Commission concluded that
the employer had the burden. � Id. at 1181 citing Dover Elevator Co., 15 BNA OSHC
1378, 1381 (No. 88�2642, 1991). � In
the present matter, the cited standard explicitly places the burden on the
employer to show that securing the crane suspended platform to the dolphin
while the employee was transferring to the platform would have resulted in a
greater hazard than not doing so. � 29
C.F.R. � 1926.1431 (k )( 3). � Therefore Manson, not the Secretary, had the
burden of proving that securing the personnel platform to the dolphin would have
created a greater hazard. �

Accordingly, the
Court finds that the Secretary�s burden was to establish: (1) applicability of
the cited standard, (2) that the employer failed to comply with the terms of
the cited standard , (3) that employees had access to the violative condition; and (4) that Manson either knew or
could have known with the exercise of reasonable diligence of the violative condition. �
Astra, 9 BNA OSHC at 2129. � For the reasons set forth below, the Court
finds that he has met this burden. �

a)
Applicability

There is no
dispute that the jilly lift was offshore and being
used to hoist personnel when the employee who had been working on the dolphin
entered it from the dolphin on February 13, 2014. � (Ex. C-5; Tr. 544, 548.) � Respondent does not contest the applicability
of the cited standard, and, consistently with the discussion above, the Court
finds that the jilly lift was a crane suspended
personnel platform and therefore the requirements set out in Subpart CC, Cranes
and Derricks in Construction, including the cited provision, applied. � 29 C.F.R.
� 1926.1431(k); Cranes and Derricks in Construction, 75 FR 47906, 47911
(Aug. 9, 2010) (� 1926.1431 �addresses fall protection when employees are
being hoisted�). �

b)
Violation

As for whether
there was a violation, the parties agree that nothing connected the jilly lift to the dolphin. �
(Tr. 72, 184; Ex. C-5.) � Respondent alleges that the jilly lift was secured to the dolphin because it was either
over boomed or over swung. [17]
� ( Resp�t
Br. at 9, 24). � The Secretary
disputes that the crane operator over boomed or over swung the jilly lift and further contends that even if he had, doing
so was not a compliant method of securing the jilly
lift to the dolphin. � ( Sec�y Br. at 21.) �

Raleigh Madeiros , a member of the Carpenter�s Union who had worked
for Manson in the past, testified as a non-expert witness for Respondent. � He acknowledged that the jilly
lift should be secured when people are entering or exiting it. � (Tr. 829, 833.) � He explained that one method of accomplishing
this is for the crane operator to over swing or over boom such that the jilly lift is pushed against the dolphin. � (Tr. 833.) � He acknowledged that there probably are other
ways to secure the jilly lift during worker transfers
as well. � (Tr. 829.) � He was not shown the video of Manson�s
worksite and did not offer an opinion as to whether the crane operator had in
fact secured the jilly lift on the date referenced in
the citation (February 13, 2014). �

Mr. Barr, the
employee of Manson depicted in the video, testified that on February 13, 2014
the crane operator over swung the jilly lift into the
dolphin. [18] � (Tr. 544-45.) � When asked whether the jilly
lift moved when he stepped on it, Mr. Barr indicated that to his memory it did
not move. � (Tr. 545.) �

The video
contradicts Mr. Barr�s recollection. � (Ex. C-5.) In the video, a worker is seen stepping down off
the dolphin onto the jilly lift, which begins to rock
and move as the worker�s weight shifts. � Id. � The
jilly lift appears to move away from the dolphin and
Mr. Barr is seen reaching for a grab bar as the other workers take hold of the
wires connecting the jilly lift to the crane. � Id. � Although the jilly
lift was close to the dolphin, it was not pushed up against it in a stable
manner, and movement of the jilly lift was
visible. � (Ex. C-5; Tr.
73, 184, 386, 421.) � Thus the
evidence supports the Secretary�s position that the jilly
lift was not secured to the dolphin or any other structure. � (Ex. C-5; Tr. 66, 72, 386.) �

Further, even if
the Court were to accept Mr. Barr�s testimony that there was no movement when
his weight transferred to the jilly lift instead of what
is seen on the video, Respondent could still be in violation. � The standard does not include any exception for
a personnel platform which is momentarily stable during transfer but not
connected. � 29 C.F.R. � 1926.1431(k )( 3). �

Mr. Huber, the
Manson engineer who designed the jilly lift, noted
that when a rig is on the water, there is motion all the time and people cannot
rely on water to be smooth and calm. � (Tr. 705.) � Even Mr.
Barr recognized the risk of swells, listing it as a risk on his job safety
analysis form. � (Ex.
C-22; Tr. 591.) � Not only was the
platform suspended, but the crane suspending the platform was floating on deep
water. � While bringing the jilly lift close to the dolphin may have made it easier for
the worker to transfer, this is not the equivalent of securing the equipment. � See The
Duncanson -Harrelson Co., 9 BNA OSHC 1539 (No.
76-1567, 1981) (when evaluating a standard addressing cranes on barges, the
Commission held that in order to be �secured� the crane had to be fastened to
the barge). �

The CO also testified that
�over-booming� is not an appropriate method of securing personnel
platforms. � (Tr. at
399.) � The Court need not resolve
whether over-booming, if appropriately executed, satisfies the standard since
the videographic evidence shows that the platform was
not secured in a stable manner. � (Tr. 399; Ex. C-5.) � Accordingly,
the Court finds that the cited standard was violated.

c)
Exposure

In terms of
exposure, CO Scott observed one employee enter the jilly
lift when it was not secured. � (Tr. 73.) � The video is
consistent with this testimony as it shows one worker transferring from the
dolphin and two additional workers on the jilly lift
itself. � (Ex. C-5; Tr.
74.) � This evidence is not
contested and the Court concludes that the Secretary established exposure to
the violative condition. � Phoenix
Roofing , 17 BNA OSHC at
1079.

d)
Knowledge

As for knowledge
of the violative condition, the worker involved in
the transfer was a supervisor. � (Tr. 514, 544.) � He
was aware that while a portion of the jilly lift
abutted the dolphin, it was not otherwise secured to it. � (Tr. 544-45.) � As a supervisor, his knowledge is imputable
to Manson. � See e.g., Kansas Power & Light Co. , 5 BNA OSHC 1202, 1204 (No.
11015, 1977) (foreman�s knowledge and approval of conduct is imputed to
employer); Hamilton Fixture, 16 BNA
OSHC at 1089. � Further, CO Scott
witnessed the violative conditions from a public
road. � The unsecured jilly
lift was open, obvious, and in plain view. �
Ted Wilkerson, 9 BNA OSHC at 2016 (a leadman �would have been in a position to observe� the
employee in the hazardous situation) ;
Am. Airlines, 17 BNA OSHC at 1555 . � Therefore, the
Secretary established Respondent�s knowledge of the violative
condition.

Affirmative Defense � Greater Hazard

As noted above, the greater
hazard defense requires the employer to prove that: (1) compliance with the
hazard is more hazardous than noncompliance; (2) alternative means of
protection are unavailable; and (3) either a variance has been sought and
denied or a variance application would be inappropriate. � Dole, 876 F.2d at 188; True
Drilling , 703 F.2d at 1090. �
Manson argues that securing the jilly lift to
the dolphin with rope would create a greater hazard. � ( Resp�t
Br. at 24.) � The Secretary appears
to accept Manson�s contention that rigidly connecting the jilly
lift to the dolphin might be problematic, but suggests several other ways to
secure the jilly lift and make the transfer safer
which the Respondent has not been shown to have considered. � ( Sec�y
Br. at 22.) � Further, according to
the Secretary, even if that were not the case, Manson failed to apply for a
variance, as required to sustain the defense. �
Id . at 29.

Manson�s Vice
President for Equipment, Mr. Hillis, testified regarding some of the safety
concerns encountered when securing an object suspended by a floating crane to a
fixed structure. � (Tr.
686-87.) � Another Manson employee,
Mr. Huber, indicated that a worker must be careful when attaching a floating crane
to something that is fixed to the land because tidal forces can cause suspension
cables to break. � (Tr.
703-4.) �

However, Manson�s own
policies and procedures required crane suspended personnel platforms to be
secured to the dolphin and witnesses described ways this could have been
done. � (Tr. 188.) � Former Assistant Regional Administrator
Cavanaugh explained that the standard does not require the jilly
lift to be rigidly attached. � (Tr. 386, 882.) � CO
Scott stated that there were several possible ways of securing the jilly lift without rigidly attaching it to the dolphin. � (Tr. 75.) � For example, Manson could have landed the
lift on the dolphin itself or used cables. �
Id. � Area Director Baker also agreed that the jilly lift could have been secured these ways. � (Tr. 187-88.) � �

Manson does not refute the
testimony of these witnesses. � Even fully
crediting the testimony of Mr. Hillis and Mr. Huber that securing the jilly lift with a cable could have created a greater hazard,
Manson does not explain why landing the jilly lift on
top of the dolphin was not an available method of compliance. � (Tr. 75, 386.) � Before an employer elects to ignore the
requirements of a standard because it believes that compliance creates a
greater hazard, the employer must explore all possible alternatives and is not
limited to those methods of protection listed in the standard. � M. J. Lee
Constr. Co ., 7 BNA OSHC 1140 (No. 15090, 1979) (recognizing that literal
compliance would have created a greater hazard but concluding that the employer
did not make out the defense because it failed to use alternative means of
protecting employees); Hackensack Steel
Corp ., 20 BNA OSHC 1387, 1391 (No. 97-0755, 2003) (defense fails because
employer did not use alternative methods of protection). � Manson did not even bring the jilly lift level with the top of the dolphin. � (Ex. C-6; Tr. 72.) � Instead, it required the worker to step down
onto the jilly lift. �
Id. � The record does not establish Manson fully
explored alternatives to rigid, albeit temporary, attachment of the dolphin to
the jilly lift to facilitate worker transfer. Therefore,
the court finds that Manson failed to establish the second element of the
defense.

Finally, as noted above,
Manson never sought a variance for any of its work practices. � (Tr. 451.) � It does explain why seeking one for not
securing the jilly lift would have been
inappropriate. � See Altor , 23 BNA
OSHC at 1470; Loomis Cabinet , 20 F.3d at 43 . � The
Court finds that Respondent did not meet its burden of proof with regard to
showing a greater hazard and so the affirmative is rejected. �

Characterization & Penalty

Manson does not
challenge the characterization as serious or the proposed penalty amount. � In terms of characterization, CO Scott
indicated that the employee accessing the jilly lift
had exposure to potentially serious injuries, including falling into the water,
striking the dolphin or hitting the jilly lift. � (Tr. 74-75.) �
Area Director Baker agreed with CO Scott�s assessment of the seriousness
of the hazard, as did the former Assistant Regional Administrator. � (Tr. 187, 385-6.) � The Court agrees with the characterization of
Item 6a as serious. � See KS Energy Servs ., Inc ., 22 BNA OSHC
1261, 1268 n.11 (No. 06-1416, 2008) (affirming characterization and penalty
where neither was in dispute).

Turning to the
penalty factors, Area Director Baker testified that severity and probability of
harm warranted a penalty of $7,000. [19] � He concluded that injuries from an incident
could include death. � (Tr.
188.) � In terms of good faith,
Manson had policies and procedures in place that required crane suspended
personal platforms to be secured to the dolphin, but those policies were not
followed. � Id. � The Court notes good
faith is more indeterminate as to this citation in comparison with the other
citations because of the complexity of assessing risks inherent in available
options. Accordingly, h aving considered all of the penalty
factors, the Court finds that a penalty of $4,000 is appropriate.

ORDER

�� The
foregoing Decision constitutes the Court�s Findings of Fact and Conclusions of
Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. � Citation Items 1, 2b, 3, 4c, 5b, and 5c were withdrawn prior to
trial. � Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:

Citation 1, Items 2a and 2c are VACATED and no
penalty is assessed.
Citation 1, Item 4a is VACATED and no penalty is
assessed.
Citation 1, Item 4b is AFFIRMED as a Serious violation and a penalty of $3,500 is ASSESSED.
Citation 1, Item 5a is AFFIRMED as a Serious violation and a penalty of $6,000 is ASSESSED.
Citation 1, Item 6 is AFFIRMED and a penalty of
$4,000 is ASSESSED.

SO ORDERED.

�� /s/ ��

�� Peggy
S. Ball

�� Judge,
OSHRC

Date: � December 12, 2016

Denver,
Colorado

[1] Respondent did not challenge in its Answer the
allegation in the Complaint that it was a business engaged in commercial
construction. � ( Compl . � II.) � Therefore, this fact is deemed admitted. � 29 C.F.R. � 2200.34(b )( 2).

[2] Since the cited standards do not apply, the Court
does not further address the remaining requirements to establish violation of
29 C.F.R. � 1926.451(b )( 2) and (c)(2)(iii).

[3] The Court notes that CO Scott and OSHA Area Director
Dave Baker testified that an employee falling off the top of the dolphin could
have struck the dolphin itself, the jitter boards, or the jilly
lift. � (Tr. 70, 179-80.)

[4] Manson did offer testimony suggesting that the safety
nets would create a greater hazard. � That
claim is discussed in the following section. �

[5] Manson notes that the video showing the shackle was
taken a year after the alleged violations. �
(Ex. C-9; Resp�t Br. at 21.) � It presented no evidence that the passage of
time resulted in changed conditions at the top of the dolphin or that the
shackle had been adequately evaluated before the citation was issued. Although
Mr. Barr did not recall seeing the shackle, he made no assertion about the
steel plate itself. �

[6] In its brief, Manson also states, without citation to
the record, that the height of the dolphin was twenty feet above the water
level. � ( Resp�t Br. at 21.) �

[7] Mr. Cavanaugh acknowledged that he did not know for
certain if there was a self-retracting lanyard available that complied with the
OSHA six foot fall limitation and three and half feet of deceleration
requirement at the time of the inspection but indicated that he would be
surprised if that was the case. � (Tr. 903.) �

[8] For example, Mr. Huber, one of Manson�s engineers who
gave expert testimony, indicated that an anchor point at the level of someone�s
feet was �not as desirable� as one higher up. �
(Tr. 720.) �
He did not indicate that it presented a greater hazard than no fall
protection at all. ��

[9] Raleigh Mederios , a service
representative for United Brotherhood of Carpenters who worked for Manson on
various occasions, also acknowledged falling from the dolphin could be
hazardous. � (Tr. 825).

[10] The Court notes that there is no testimony about
debris being present on the date alleged in the citation. � (Tr. 236-37, 631.)

[11] The Inflation Adjustment Act of 2015, Pub. Law 114-74
� 701, 129 Stat. 559-602 (2015) granted OSHA the ability to increase the
statutory minimum and maximum penalties for violations of the OSH Act. � OSHA has exercised this authority but the
revised penalties apply only to violations occurring after November 2,
2015. � 81 Fed. Reg. 43430 (July 1, 2016); 29 C.F.R. � 1903.15(d). � All of the violations in the instant matter
occurred prior to November 2, 2015, so the statutory maximum applicable here is
$7,000. � 29 U.S.C.
� 666. �

[12] Specifically, the standard states: �[w]hen using
equipment to hoist employees, the employee must be in a personnel platform that
meets the requirements of paragraph (e) of this section.� � 29 C.F.R. � 1926.1431(b )( 1).

[13] The jilly lift was more
than six feet above the surface of the water. �
29 C.F.R. � 1926.500(b) (definition of lower level). � (Ex. C-5; Tr. 58, 667.) ��

[14]
As noted above, Mr. Dillion questioned the
availability of a self-retracting lanyard certified for a tie off point at the
feet. � (Tr. 455.) � However, he did not address the use of a
self-retracting lanyard with a tie off point above the level of a worker�s
feet. �

[15] Specifically, the standard states:

Before employees exit or enter a hoisted personnel platform that is not
landed, the platform must be secured to the structure where the work is to be
performed, unless the employer can demonstrate that securing to the structure
would create a greater hazard. �

29 C.F.R. � 1926.1431(k )( 3).

[16] The D.C. and Ninth Circuits are the two Circuits to
which this case could be appealed. � Where
it is highly probable that a Commission decision would be appealed to a
particular circuit, the Commission has generally applied the precedent of that
circuit in deciding the case -- even though it may differ from the Commission's
precedent. � See, e.g., Farrens
Tree Surgeons, Inc ., 15 BNA OSHC 1793, 1794-95 (No. 90-998, 1992). � The Court notes certain other appellate
courts diverge from this general rule in narrow circumstances not applicable
here. � See e.g., Gen. Elec. Co. v. OSHRC , 540 F.2d 67, 69-70 (2d Cir.
1976) (concerning certain personal protective equipment standards), Diebold, Inc. v. Marshall, 585 F.2d
1327, 1333 (6th Cir. 1978) (vaguely worded machine guarding standard). �

[17] Mr. Barr indicated that over booming and over swinging
were two separate crane maneuvers, either of which was intended to bring the jilly lift �tight� to the dolphin. � (Tr. 522-24.) �

[18] Neither the crane operator nor any of the other
employees on the jilly lift testified. �

[19] As noted above, $7,000
is the maximum possible penalty for this violation. � 29 U.S.C. � 666.

Get today's answer for your situation

You just read Commission precedent from 2017. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the authority it relies on.

Apply this precedent to your situation

This is citable Commission precedent from 2017, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.

On this page

Decision type

Commission decision

Docket

14-0816

Decided

April 27, 2017

Outcome

Mixed result

Precedential status

Citable Commission precedent

Cited standards

29 C.F.R. § 1926.451(b)(2) 29 C.F.R. § 1926.451(c)(2)(iii) 29 C.F.R. § 1926.451(g)(1)(vii) 29 C.F.R. § 1926.501(b)(1) 29 C.F.R. § 1926.1431(b)(1) 29 C.F.R. § 1926.1431(k)(3)

Official source

Read the official release (oshrc.gov)

View Official PDF