The Reybold Group of Companies, Inc

Plain-English summary

Reybold employed a 17-year-old vocational-school student at a Delaware residential construction project where balconies remained open and unguarded. The student regularly accessed balconies for cleanup work and was hospitalized after falling 11 feet while receiving trim passed down from the floor above. The judge found that general school-based OSHA training and a written manual did not replace hands-on, site-specific instruction needed for a young worker exposed to active construction hazards. Reybold also failed to provide fall protection or restrict access to the balconies despite prior notice from its insurer and knowledge among project managers. Both the training and fall-protection items were affirmed as serious. The fall item was reduced from willful because the evidence showed negligence and inadequate diligence, but not conscious disregard or plain indifference. The judge assessed $7,000 for each item, for a total of $14,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.503(a)(1); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Training item affirmed as serious; fall-protection item reduced from willful to serious; $14,000 in total penalties assessed.
• Key point: A young worker needs practical, site-specific fall-hazard training, and known unguarded balconies must be protected or made inaccessible.

Full text (OSHRC public release)



The Reybold Group of Companies, Inc., Docket No. 15-0175

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

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

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No.
15-0175

THE REYBOLD GROUP OF COMPANIES, INC.,

Respondent.

Appearances:    John A. Nocito, Esq. & Bertha Astorga, Esq.

Office of the Regional Solicitor

United States Department of Labor

170 S. Independence Mall West

Philadelphia, PA 19106-3306

For the Complainant

Jill Agro, Esq. & Richard L. Rainey, Esq.

Womble, Carlyle Sandridge & Rice, LLP

One Wells Fargo Center

301 South College Street, Suite 3500

Charlotte, NC 28202-6017; and

Suzanne Ilene Schiller, Esq.

Jill Hyman Kaplan, Esq. & Diana A. Silva, Esq.

Manko, Gold, Katcher & Fox, LLP

401 City Ave., Suite 901

Bala Cynwyd, PA 19004

For the Respondent

Before:   
   Keith E. Bell

Administrative Law Judge

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. § 451 (the Act). The Occupational Safety and Health Administration (OSHA) conducted an inspection of a worksite located
at 700 Roger Chaffee Square, Meridian Crossing
( the worksite)
Unit 725, Bear, Delaware on or about July 14, 2014 . As a result,
o n January 9, 2015,
OSHA issued a Citation and Notification o f Penalty (Citation) to The Reybold Group of Compan ies, Inc. ( Respondent or
Reybold ), alleging
two
violations of the Act. Citation 1, Item
1 , allege s
that Respondent violated 29 C.F.R. §
1926.503(a )(1)
for exposing employees to a fall of greater than 11 feet without training. This violation
is
classified as “serious” and a
penalty
in the amount
of
$ 7,000
is
proposed for this item. Citation 2, Item 1 , alleges a violation of 29 C.F.R. § 1926 .501(b)(13)
because an employee was allowed to work 11 feet above ground along the leading edge of a balcony without fall protection. This violation
is
classified as “willful” and
a penalty
in the amount of $70 ,000
is proposed for this item . Respondent tim ely contested the Citation. A hearing
was held on May 31 through June 1, 2016 ,
in Philadelphia, Pennsylvania.
For
the reasons discussed below,
Citation
1, Item 1
is AFFIRMED
as issued
and
Citation 2, Item 1 is AFFIRMED as “serious”. The proposed penalty for Citation 1, Item 1 is assessed while a modified penalty, based on a finding of “serious” rather than “willful”, is assessed for Citation 2, Item 1 .

Jurisdiction

The parties have stipulated to the Commission’s jurisdiction over this proceeding and coverage under the Act. (Tr. 12-13). The parties have
also
stipulated that Reybold
is a Delaware corporation. Admitted Fact No. 1. T he record establishes that at all times r elevant to this case,
Reybold
was an “employer” engaged in a “business affecting commerce” within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5).
The evidence supports a finding
that the Act applies and the Commission has jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c).

Admitted Facts 1

1. Respondent, The Reybold Group of Companies, Inc., is a Delaware Corporation, with its principal
   place of business at 116 E. Scotland Drive, Bear, Delaware 19701.

2. Respondent had a worksite at Roger Chafee Square, Meridian Crossing, Bear, Delaware 19701 (the worksite) on July 14, 2014.

3. [redacted]
   was a Reybold employee on July 14, 2014.

4. Reybold hired
   [redacted]
   pursuant to a cooperative arrangement with St. George’s Technical High School.

5. [redacted]
   was issued a Delaware Department of Labor Child Labor Work Permit for Minor in order to work for Respondent.

6. [redacted]
   began working at the worksite on June 12, 2014.

7. Greg DaPron was Respondent’s Project Manager at the worksite.

8. Lloyd Baker was Respondent’s Site Superintendent at the worksite.

9. Greg DaPron was at the worksite
   on the morning of July 14, 2014.

10. Lloyd Baker was on a scheduled vacation and did not report to the worksite on July 14, 2014.

11. On July 14, 2014,
    [redacted]
    performed work for Respondent at the worksite.

12. On July 14, 2014,
    [redacted]
    fell from the second
    floor balcony of Unit 725 at the worksite.

13. The distance from the ground to the second
    floor balcony at Unit 725 at the worksite is 11 feet, 2 inches.

The following fact was admitted by stipulation at the hearing:

14. [redacted]
    called to clarify that he would be working on July 14, 2014. Tr. 119-21.

The followi ng facts were admitted by ruling
at the hearing : 2

15. The doors leading to the unguarded balconi es were not shut with 2x4s
    on the day of
    [redacted] ’s fall.

16. No
    s igns were posted concerning unguarded balconies.

17. Keenan Benson stated they would always move the debris by handing it down from the third
    floor to the second
    floor.

18. Reybold Project Manager, Greg DaPron, told the OSHA Compliance Officer that the building was protected at the time of the incident when, in fact, it was not.

Background

Respondent, Reybold, is a company involved in real estate which includes construction of properties
that it maintains. Reybold has
been involved in construction for 34 years. Tr. 143. On July 14, 2014, Reybold
had a worksite at Roger Chafee Square, Meridian Crossing located in Bear, Del awa r e . Admitted Fact No. 2. Meridian Crossing
is a mixed development of homes, apartments, and townhomes. Tr. 337.

Reybold has a co-op program through which it hires students from St. George ’s
Vocational and Technical School
(St. George ’s ) . Tr. 53. Reybold chose to work with students from St. George ’s
because
they have training. Tr. 358. Reybold hired
[redacted]
pursuant to its co-op
arrangement with St. George’s . Admitted Fact No. 4.

St. George ’s
highly recommended
[redacted]
and confirmed that he had received the OSHA 10-hour training which included a
segment on fall protection. Tr. 364-65.

[redacted]
began working for Reybold on June 12, 2014, and
was assigned
to Meridian Crossing
where large condominiums were being built. Admitted Fact No. 6; Tr. 57.
At the
time of hire,
[redacted]
was
17 years old and had just completed his
j unior year of high school at St. George’s. Tr. 56, 85. During
his employment with Reybold,
[redacted]
mainly worked in the 700
building. Tr. 57. [redacted] ’s
primary duties included sweeping and moving debris out of the way of the working crew. Tr. 59. Debris
often
accumulate d
on the balconies because things would get loaded onto them (plastic, empty buckets, wood shavings etc.). Tr. 61. Utility closets were also located on the balconies from which debris needed to be removed. Id . [redacted]
put the debris into
a box
then dispose d
of it
by tossing it from a balcony
into the dumpster positioned in front of the balconies on the ground below. Tr. 62. [redacted]
accessed the balconies every d ay by simply walking through an adjoining
door which was usually open to keep air flowing. Tr. 63. Lloyd
Baker was Reybold’s Site Superintendent at Meridian Crossing and
he was
[redacted] ’s
immediat e supervisor. Admitted Fact No. 8;
Tr. 58.

Day of the Accident

Lloyd Baker,
[redacted] ’s immediate supervisor, was on scheduled vacation and did not report to the worksite on July 14, 2014 --- the day of the accident. Admitted Fact No. 10. Though it is unclear whether
[redacted]
was scheduled to work on the day of the accident, at some point, he called to clarify that he would be working on July 14, 2014. Tr. 119-21. During a conversation between
[redacted]
and Reybold’s HR M anager,
Collyne Figgs, she informed him that if he wanted to work on July 14 th , he would need approval by a manager because his supervisor
(Lloyd Baker)
wouldn’t be working that day. Tr. 382. Reybold Project Manager ,
Mike Clineff 3

gave the approval for
[redacted]
to work on the
day of the accident. RX-39 at

2. Mr. Clineff then called
   Reybold’s Commercial Project Manager, Greg DaPro n,
   on the
   morning of July 14 th
   stating that
   [redacted]
   was on site and neede d something to do. Tr. 389 ; RX-39 at
   2 . Mr. DaPron
   was surprised by this because
   he believed that
   [redacted]
   was scheduled to be off. Id. In any case, Mr. DaPron stopped by the worksite and assigned
   [redacted]
   and another employee, Keenan Benson, to clean up the third floor. Tr.
   87-88,
   389-90.
   At some point,
   [redacted]
   was standing on the second
   floor balcony
   of Unit 725
   receiving trim from his work partner, Keenan Benson, who was
   passing it down from the third
   floor balcony. Admitted Fact No. 12;
   Tr. 92. While re aching for a piece of trim,
   [redacted]
   fell approximately 11 feet to the ground below and struck his head. Tr. 91 .
   [redacted]
   was hospitalized due to injuries sustained from his fall. Id .

OSHA Investigation

OSHA Compl iance Officer (CO), Timothy Lo uden received a phone call from the local po lice on July 14, 2014, notifying him of
an accident at Meridian Cr ossing . Tr. 180. As a result, an investigation was initiated. Id . CO Lo uden arrived on site at Meridian Crossing in the early afternoon
on the day of the accident. Tr. 181, 205 . Upon arrival, he encountered Reybold employees Frank Bailey and Greg DaPron. Id . After receiving an update from the police on site,
CO Lo uden conducted an investigation that included taking photos, statements, and making observations of the accident site . Tr. 182-83. Initially, CO Lo uden interviewed Reybold employees Frank Bailey and Greg DaPron. Id . During his interview, Mr. DaPron told CO Louden that the building where the accident occurred was protected at the time of the accident
when, in fact, it was not. Admitted Fact No. 18. CO Louden’s
interview of accident victim,
[redacted] , took place approximately a month after the accident due to injuries sustained by
[redacted] . Tr. 206. CO Louden’s investigation of the accident revealed that the doors leading to the unguarded balconies were not shut by 2x4s on the day of the accident. Admitted Fact No. 15. Additionally, no signs were posted concerning the unguarded balconies. Admitted Fact No. 16.

Discussion

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 employer
either knew or could have known with the exercise of reasonable diligence of the violative condition. JPC Grp., Inc ., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A preponderance of the evidence is “that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false.” Astra Pharma. Prods ., 9 BNA OSHC 2126, 2131, n. 17 (No. 78-6247, 1981)
aff’d in relevant part,
681 F.2d 69 (1st Cir. 1982).

Alleged Vio lations of 29 C.F.R. § 1926.503(a)(1)

Citation 1, Item 1a alleges a viol ation of 29 C.F.R. § 1926.503(a )(1) which states :

Training Program. The employer shall provide a training program for each employee who might be exposed to fall hazards. The program shall enable each employee to recognize the hazards of falling and shall train each employee in the procedures to be followed in order to minimize these hazards.

Specifically,
Citation 1, Item 1
alleges that on or about July 14, 2014, employees were exposed to fall of greater than 11 feet and were not trained.

Reybold
does not dispute the applicab ility of this standard. Instead , Reybold
makes two arguments in its defense: 1)
that the training
[redacted]
received from his vocational school was
sufficient for the work he was expected to do; and 2) Reybold’s Safety Policies and Procedures Manual
(Safety Manual) put
[redacted]
on notice that he was required to wear fall protection when working from certain heights . Resp’t B r.
15-16. The record is clear that on July 14, 2014,
[redacted]
was exposed
to a fall hazard. T he
cited
standard applies.

The terms of this
stan dard require training that covers
(1) recognition of hazards of falling; and (2) training on procedures to minimize such hazards. However, the standard does not set forth specific requirements to achieve the stated goals . When the language of a training standard is general and potentially subjective,
the Commission and courts have a pplied a
reasonableness standard.

That is, to establish non - complian ce, the Secretary must prove
that the cited employer failed to provide the instructions that a
reasonably prudent employer
would have given in the same circumstances.
El Paso Crane and Rigging Co., Inc. , 16 BNA OSHC 1419, 1426 (No. 90-1106, 1993).
(emphasis
added ).

Reybold’s Safety Officer, Frank Bailey, testified that he didn’t provide fall protection training to
[redacted]
because he believed the training provided by the vocational school was adequate. Tr . 507. [redacted]
testified that he received OSHA 10-hour training . Tr. 118. This training was confirmed by the production of his training card. RX-21. According to
[redacted] , his
OSHA 10-hour training
was
computer -based training that consisted of a slide pres entation. Tr. 118. [redacted]
also
testified that the
training
covered fall protection. Id . He
further testified
that
his vocational school training
included information on fall protection
and h ow to use it. Tr. 72-73, 100. It is established that Reybold’s Safety Manual was provided to
[redacted]
who signed a form receipt thereby acknowledging his responsibility to familiarize himself with its contents. RX-47, at 8. This Safety Policies and Procedures Manual addresses fall protection. CX-10, at 40. The evidence
shows
that
[redacted]
received some fall protection training
at school and
a copy of a fall protection policy and procedures statement
from Reybold. However , there is no evidence that this training was adequate to prepare him to recognize the fall hazards h e encountered at the worksite. For example,
[redacted]
testified that it was common for Reybold employees/contractors to toss debris from the balconies into the dumpsters below. Tr. 86. He also saw trim being passed from one floor to another by way of the balcony as if it was an “established method” for moving the trim. Tr. 99. Further, he testified that he didn’t see anyone wearing fall protection. Most importantly, he testified that he didn’t feel empowered to challenge these methods because he was so young. Tr. 96. Interestingly, Reybold’s Chief Operating Officer and Executive Vice President testified that he believed co-op students, like
[redacted] , needed more detailed instruction. Tr. 167. Apart from the training
[redacted]
received from his school and the material on fall protection provided to him in Reybold’s Safety Manual, he may have received further safety instructions from his imm ediate supervisor Lloyd Baker. However, Mr. Baker did not testify so we will never know. What we do know is that, according to
[redacted] , he w asn’t aware of any
work rule regarding balconies and n o one at Reybold went over fall protection with him or proper procedures for working on balconies. Tr.
103, 110.

Frank Bailey
also testified that
[redacted]
wasn’t expected to do work in areas that would expose him to fall hazards. Tr. 460. This assertion seems incredulous in view of the fact that
[redacted]
was assigned to work in a multi-level building. The real question is whe ther a reasonabl y
prudent employer
would have relied on the training provided by
[redacted] ’s vocational school without offering supplemental
on-site
training on fall protection. Notably, a t
the time of the accident,
[redacted]
was
only
17 years old and still in high school. Tr.
56, 85. [redacted] ’s
age and impressionabi lity seemingly
influenced
how he performed his duties based on his testimony that “…there’s a lot of older guys, you know,
I just did what I saw. I was just 17 at the time and young, and I was just doing what everybody else was doing at the jobsite.” Tr. 85. The evidence reveals that,
i n the absence of proper training on fall hazards present at the worksite,
[redacted]
was susceptible to
and
likely
pick ed
up
unsafe
wo rk
habits from others.

Given
[redacted] ’s age, the fact that he was
still
in high
school, had no practical/hands on training
and
was
assigned to work on an active construction site where he was exposed to elevated/unguarded work platfo rms, it was not reasonable for
Reybold
to rely on the training he received from
St. George’s . In fact, it defies all logic th at any reasonabl y
prudent employer
would have failed to give
hands on
training and detailed instruction to a teenager on all hazards likely to be encountered on
a construction site. Even Reybold ’s
s ub- c ontractor ,
Alan Coryell ,
testified that despite the fact that he provided safety harnesses to his employees, he couldn’t guarantee that
they used them when he wasn’t on site. Tr. 429. M r. Coryell
highlighted
this point when he testified about a time
when
he was off site and received notification that
one of his employees refused to wear his harness .

Tr. 429.

Alan Coryell’s testimony furt her underscored
the importance of fall protection training at this worksite. R eybold ’s arguments in defense of
its failure to provide fall pro tection training to
[redacted]
are unpersuasive. The evidence supports a finding that
Reybold failed to comply with the requirements of the cited standard.

Employee Exposure

The
facts regarding employee exposure/access to the
hazard of a fall
are
the same for both standards cited (training and fall protection). Therefore, the
discuss ion of employee exposure
is consolidated here.

[redacted]
testified that “[he] was on balconies every day.” Tr. 63. He accessed balconies using doors that were usually open. Id . He testified
that the doors to the balconies were usually left open to keep the air flowing because it was summertime. Id . [redacted] ’s testimony regarding balcony doors being left open is supported by the testimony of Reybold ’s
s ub- c ontractor, Alan Coryell, who stated that “it was next to impossible to keep them closed.” Tr. 440. [redacted]
also testified that no temporary railings were installed during
the time when he was on site. Tr. 65-66. In fact, a ccording
to
[redacted] , the balconies were left unguarded until permanent railings w ere installed. Tr. 66. [redacted] ’s
account is supported by statements made to CO Louden by Reybold’s Project Manager at Meridian Crossing, Greg DaPron ,
that temporary railings were not installed because they didn’t want to damage the vinyl siding for
potential homeowners. Tr. 219,

388. Photographs of the accident site taken by OSHA CO Louden reveal t hat the balcony from which
     [redacted]
     fell was unguarded. CX-9. The facts reveal that
     [redacted]
     accessed the balconies to toss debris into th e dumpster below. Tr. 70. Further, the facts reveal that
     [redacted]
     was never provided fall protection and didn’t use any. Id . Prior to the accident,
     [redacted]
     observed other
     workers
     moving pieces of wood trim from one floor to the other by “shimmying” the trim up or down to someone standing on another balcony who would grab it and pull it in. Tr. 78-79. On occasion,
     [redacted] ’s
     supervisor, Lloyd Baker, asked h im to move trim . Tr. 81, 83. There is no evidence to refute
     [redacted] ’s claims that he was repeatedly exposed to unguarded balconies without fall protection. Employee exposure to the fall hazard is established.

Employer Knowledge

The violative conditions that resulted in alleged violations at this worksite are
the same for both standards cited (training and fall protection) . Therefore, the discussion of employer
knowledge is consolidated here.

Here, the facts reveal that Reybold had both actual and constructive knowledge of
the violative conditions.
Frank Bailey,
Reybold ’s Safety Officer , participated in an inspection with a representative of Reybold’s insurer on November 20, 2012. Tr. 136. During the inspection, they observed balconies with buckets stored on them and no guardrails. Id . Shortly after the inspection, on the same day,
Reybold’s
i nsurer sent a letter, via email, to Frank Bailey recapping hazardous conditions observed to include unguarded bal conies. CX-11. The letter
suggested that balconies
should either be guarded or that acce ss should be restricted by the use of warning signs, locked doors, or temporary guardrails. Id . As a result of
the inspection and receipt of the
letter from Reybold’s
i nsurer, Frank Bailey sent an email to Messrs. Lloyd Baker (Site Superintendent ),
Greg DaPron (Project Manager) ,
and Mike
Clineff (Project Manager)
notifying them of the fall hazard presented by the unguarded balconies . Tr. 137, CX-12. Although the
i nsurer’s inspection occurred more than a year before the accident, the record is void of any credible evidence that
Reybold
changed its practice of leaving balconies unguarded and accessible to employees. The collective
knowledge of
these Reybold managers
(Bailey, Lloyd, DaPron and
Clineff )
concerning
the hazard of falling present at this worksite is imputed to
Reybold . See ,
Dover Elevator Co. Inc. , 16
BNA
OSHC 1286-87 (No. 91-862, 1993) quoting
Baytown Constr. Co ., 15 BNA OSHC 1705, 1710
(No. 88–2912S, 1992),
aff'd , 983 F.2d 282 (5th Cir.
1993)
(unpublished)
( h olding that a lthough the Secretary has the burden to establish employer knowledge of the violative conditions, when a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies his burden of proof without having to demonstrate any inadequacy or defect in the employer's safety program. ) . Moreover, Reybold ’s own Safety Manual addresses
fall protection thereby acknowledging the possibility of
such a hazard. CX-10
at

40. In February 2014, Reybold’s Safety Committee minutes reflect that a meeting took place with the building construction management team to address s u pervisor s'
    responsibility for monitoring safety on a worksite . RX-35. The implementation of such a proactive safety policy should have resulted in the discovery of violative conditions such as unguarded and accessible balconies as well as unsafe work practices such as those that led to
    [redacted] ’ s accident. According to
    [redacted] , he has communicated with
    S ite Superintendent Lloyd Baker while standing on a balcony. Tr. 69. [redacted]
    also testified that he would frequently see Mr. Baker walking around the worksite. Id.
    I nspections such as those performed by
    Safety Officer
    Frank Bailey (RX-29) should have recorded these violative conditions along with any correc tive
    measures to be taken. The photographic and testimonial evidence of
    the conditions giving rise to the alleged violation
    establishes that they
    were in plain view of both managers (Baker and Lloyd) and should have been discovered if either had been following the company’s
    safety monitoring
    policy. The Commission has held that an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Constr.
    Inc.,
    16 BNA OSHC 1995, 1998 (No. 92-1022, 1994).

Although
Reybold
claims that
[redacted]
was not provided fall protection training, in part, because he was not expected to do work that w ould require such training,
t his argument is without merit because
[redacted]
was assigned to work in a multi-level unit with unguarded balconies. Therefore, the hazard of falling was always present. It has been held that
a n employer “cannot fail to properly train and supervise its employees and then hide behind its lack
of
knowledge
concerning their dangerous working practices.”

A/C Elec .
v. Occupational Safety & Health Review Comm’n . ,
956 F.2d 530,
535
(6 th
Cir. 1991). Reybold’s knowled ge of the
violative conditions that led to
[redacted] ’s accident
is established.

Serious Classification

To prove a violation
was “serious” under section 17 ( d) of the Act, 29 U.S.C. § 666(d) ,
the
Secretary must show there was a substantial probability that death or serious physical harm could have resulted from the cited condition and that the employer knew or should have known of the condition; the likelihood of an
accident occurring is not required.
Spancrete N e. , Inc. , 15 BNA OSHC 1020, 1024 (No. 86-521, 1991). The facts reveal that
[redacted]
fell and hit his head. Tr. 90. As a result of the fall and injuries sustained, he was hospitalized. Tr. 91. The record is clear that Reybold had knowledge of the fall hazard . The Secretary has met his burden of proving that the violation alleged in Citation 1, Item 1 is properly classified as serious.

Alleged Violation
of 29 C.F.R. § 1926.501(b)(13)

Citation 2, Item 1
alleges a violation
of 29 C.F.R. § 1926.501(b)(13 ), which states, in pertinent part,
that:

Residential Construction. Each employee engaged in residential construction activities 6 feet or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system…

Specifically, the Citation
2, Item 1 alleges
that on or about July 14, 2014, an employee working along
the leading edge
of the second
floor balcony, approximately 11 feet above ground was not protected from a fall hazard.

The facts establish that
Meridian Crossing was a residential construction site. Tr. 57. O n July 14, 2014,
[redacted]
was employed by Reybold when he
fell from the second
floor balcony of Unit 725 at the worksite. Admitte d Fact Nos. 3 &

12. The distance from the ground to
    the second
    floor balcony at Unit 725 at the worksite is 11 fee t and 2 inches. Admitted Fact No.
13. At the time of his fall,
    [redacted]
    was moving pieces of wood trim by way of a second
    floor balcony. Tr. 91. There was no g uardrail in place on the second
    floor balcony where
    [redacted]
    fell. Tr. 65-66, CX-9. T he cited standard applies.

The record is clear that
[redacted]
was exposed to a fall hazard on the day of the accident. Further,
[redacted]
testified that “[he] was on balconies every single day.” Tr. 63. According to
[redacted] , his supervisor, Lloyd Baker, never told him to stay off the balconies. Tr. 64. He stated that he was frequently instructed to remove object s
and debris from the balconies although he do esn’t say exactly who
gave these instructions. Tr. 65. [redacted]
also stated that no temporary railings were installed during his time on the site and the balconies remained unguarded until permanent railings were installed. Tr. 66.

[redacted] ’s testimony concerning the unguarded balconies is supported by photographs taken at the worksite as part of CO L ouden’s investigation. CX-9. There is no evidence that the worksite was equipped with a safety net system. Finally,
[redacted]
was not given a personal arrest (fall protection) system and didn’t use any. Tr. 70. The evidence supports a finding that Reybold violated the standard.

Unpreventable Employee Misconduct Defense

In its Answer, Reybold asserted the affirmative defense of
u npreventable
e mployee
m isconduct. Resp’t Answr . 4. In its post-hearing brief, Reybold specifically alleges that the July 14, 2014, accident may have been caused by the misconduct of
[redacted] ’s immediate supervisor, Lloyd Baker. 4 Resp’t B r. 29-31.

An employer may defend
itself
against
the Secretary’s allegation that it committed
a violation by establishing the affirmative defense of
unpreventable
employee
misconduct .

To establish this
defense, the employer is required to prove that “ [it ]
has established
work rules
designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered . ” Pa. Power & Light Co. v. Occupational Safety & Health Review Comm'n,
737 F.2d 350, 358 (3d Cir.
1984)
(emphasis omitted) (quoting
Marson Corp.,
10 BNA OSHC 1660,
1662
(No. 78–3491 , 1982) .

At the time of the accident, Reybold had a written fall protection policy set forth in it s Safety
Manual. Reybold’s fall protection policy establishes the following fall protection protocol for its employees when working in an area that is 6 feet or more above a fixed platform or floor:

Full body harness with “D” ring located in rear between the shoulder blades;

An approved 6-foot lanyard with a tear away portion for relieving shock;

The lanyard is to be connected to the “D” ring and the other end to a fixed point either level with or over the head of person wearing it;

In times that a person has to work along a lateral surface the use of a retractable is suggested. For 100% Fall Protection use a double lanyard. Connect one in forward movement and disconnect one in rear “leap frog style.” One should be connected at all times. CX-10,
at
40.

Notwithstanding the existence of Reybold’s fall protection policy,
[redacted]
testified that he didn’t see anyone using fall protection when working on balconies. Tr. 86. In response to an
inspection
of the worksite on November 20, 2012,
that revealed unguarded balconies at Meridian Crossing where the accident occurred, Reybold’s Safety Officer, Frank Bailey, sent an email to Commercial Project Manager, Greg DaPron telling him that anyone accessing balcony areas had to be wearing fall protection or the balcony had to be guarded. Tr. 470. Additionally, Reybold’s Safety Committee established a “tool box talk” to remind employees
and supervisors about safety and accountability in construction. RX-34, 35.
Greg
DaPron
testified t hat
the doors were
screwed shut or barricaded by 2x4 pieces of wood to prevent access to any area where a fall hazard was present and no guardrails were installed. Tr. 413. He further testified that he didn’t check to see if the doors were screwed shut
on the day of the accident. Tr. 414. By contrast,
[redacted]
testified that he never saw a balcony door blocked by wooden pieces, screwed shut, or with warning signs posted. Tr. 1 09- 10. Although
s ubcontractor Alan Coryell testified that he and his crew would put a screw
in the door after installation, h e also stated that the screws were easily removed due to the number of people accessing the balcony areas for loading and unloading purposes. Tr. 439. Further ,
referencing the doors leading to the balconies, Mr. Coryell candidly stated that, “it was next to impossible to keep them closed.” Tr. 440.

The evidence establishes that Reybold had established work rules designed to prevent this violation; however, they were not always followed.

According to
[redacted] , he was given orientation by Reybold’s Human R esources Manager, Collyne Figgs. Tr. 55. His orientation included going over a lot of paperwork, procedures, and manuals. Id . Sometime later, he met with Reybold’s Safety Officer on site. Id . Ms. Figgs testified that when she met with
[redacted] , she reviewed Reybold’s personnel manual along with its policies and procedures manual and provided him with a safety manual. Tr. 365. Reybold ’s exhibit no. 47, page 8
confirms that
[redacted]
received a copy of Reybold’s Safety Manual. Ms. Figgs also testified that she was present when
[redacted]
and the other co-op students received their safety orientation. Tr. 373, 385. During the safety orientation, Reybold’s Safety Officer, Frank Bailey ,
reviewed the
S afety
M anual with the students. Id . However,
Frank Bailey
testified that he did not provide fall protection training to
[redacted]
because he was not expected to do work where fall protection would be required. Tr. 460, 507. Although Reybold’s Safety Committee discussed the implementation of “tool box talks” to reinforce workplace safety,
a ccording to
[redacted] , he never had a tool
box talk and didn’t even know such a thing existed. Tr. 117. He further testified tha t no one from Reybold communicated to him proper procedures for working on balconies. Tr. 103. Lloyd Baker is the Reybold employee who would likely be able to dispute
[redacted] ’s claim s ; however, he
didn’t testify. Based on the foregoing, the undersigned finds that
Reybold failed to
adequately communicate its work rules regarding fall hazards to
[redacted] .

Reybold’s President, Jerome Heisler, testified that Frank Bailey drove around the worksite on a regular basis and was involved in inspections of the worksite. Tr. 343. Annual inspections were
conducted by
Reybold ’ s insurer. Id . Additionally,
Frank
Bailey testified that he conducted regular inspections at the worksite where the accident took place --- Meridian Crossing. Tr. 461. The last inspection he conducted at that worksite was within a week of the accident. Id . Reybold ’s exhibit no. 29, pg. 18 reflects an inspection conducted by Frank Bailey on July 2, 2014, a little more than a week prior to the accident. On page 2 of the July 2 nd
inspection sheet, a box was checked denoting no violations found during the inspection. RX-29
at

19. Despite his testimony concerning regular inspections and the July 2, 2014 ,
    inspection sheet,
    Frank
    Bailey also testified that
    he was unaware that
    there were unguarded balconies. Tr. 460.
    Frank
    Bailey’s lack of knowledge concerning this condition of unguarded balconies in plain view undermines the trustwo rthiness of his
    inspections.
    Greg DaPron also testified he didn’t notice whether the second
    floor had guardrails
    on the balconies. Tr. 390. Greg
    DaPron further testified that he never saw an employee working on a balcony without fall protection. Despite the evidence concerning inspections performed by Reybold managers, it seems that the inspections were either not frequent enough or thorough enough to reveal the dangerous work practice that led to
    [redacted] ’s accident. In fact, the Constructive Action Report issued to Greg DaPron following
    the accident states, “…it is reasonable to expect that Greg, as a Project Manager, should have recognized the potential hazard and addressed it immediately.” CX-15. While the evidence shows that Reybold did take some steps to discover violations,
    it also
    reveal s
    that
    those actions were inadequate.

Reybold offered no evidence of enforcement of its policies and procedures regarding fall hazards and fall protection
prior to the July 14, 2014
accident . Following the accident, Greg DaPron received a written reprimand
titled “Constructive Action Report Performance Counseling and Documentation”
for failing to identify and address the fall hazard. CX-15.

Reybold
s ub c ontractor
Alan Coryell testified that he worked for Reybold for six years. Tr. 424. As a sub-contractor, he was familiar with Reybold’s safety policies and procedures. Tr. 425. Mr. Coryell recounted an inst ance when he received
a phone call telling him that an employee was on a balcony without a harness. He responded by threatening to send the employee home if he did not put on his harness. Tr. 429. Mr. Coryell also testified th at he provided harnesses to all
of his employees who would be working on patios/balconies and that he never saw a Reybold employee on unguarded balconies. Tr. 428. The evidence supports a finding that Reybold enforced the rules concerning fall hazards once discovered. However, the evidence doesn’t conclusively show that such enforcement was effective.

Reybold ’s defense of unpreventable employee m isconduct by
S ite Superintendent Lloyd Baker fails, in large part, because it didn’t adequately communicate the established work rules on the use of fall protection when working on unguarded and elevated surfaces to
[redacted] . Moreover, its inspections designed to uncover violations were ineffective and inadequate.

Willful Classification

Citation 2, Item 1 in this case is classified as “willful”. “ A willful violation is one committed
with either intentional disregard of or plain indifference to the requirements of the Act or a standard.”

J.A. Jones Constr. Co ., 15 BNA OSHC 2201 ,
2209
(No. 87-2059, 1993).

[I]t is not enough for the Secretary to show than an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation .... A willful violation is differentiated by a heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference.

Hern Iron Works , 16 BNA OSHC 1206, 1214 (No. 89-433, 1993).

The Secretary has not established that
Reybold ’s violation of
29 C.F.R.
§  1 926.501(b)(13) was willful. Although
[redacted] ’s
fall was unfortunate and could likely have been avoided if the balcony had been guarded, it was more the result of a confluence of factors that made for a perfect storm.

The Secretary
makes compelling
argument s
that
Reybold ’s
knowledge of the cited standard along with
the
findings of an inspection conducted by its insurer in
N ovember 2012,
referencing the fall hazard(s) created by the unguarded balconies put
Reybold
on notice and should have created a “heightened awareness” of these conditions. Sec’ y Br. 21-22. However,
to establish the willful characterization,
the Secretary
must show that, at the time of the violative act, the employer was either actually aware that the act was unlawful or “that it possessed a state of mind such that if it were informed of the standard, it would not care.”
Propellex Corp ., 18 BNA
OSHC 1677 ,
1684
(No. 96-0265, 1999). Such is not the case here.

It is established that
[redacted] ’s
immediate supervisor was not working on the day of the accident. As a result, the responsibility for giving him a work assignment
fell on the Project Manager, Greg DaPron. Mr. DaPron wasn’t at the worksite when he received notification that
[redacted]
showed up for work and needed an assignment. Yet, he took the time to travel to the worksite to give
[redacted]
and Keenan Benson a work assignment
which was to clean up the
third
floor unit(s). Ironically, the permanent railing s for the third
floor balconies
where Mr. DaPron assigned
[redacted]
to work on the day of the accident
had already been installed. Tr. 65 -66 , CX-9
at
1-4, 6, 8-10.
Mr. DaPron testified that he had never seen
[redacted]
working on a balcony nor had he seen any Reybold employee working on a balcony without fall protection. Tr. 390. Also, Mr. DaPron testi fied that
his instruction to Site Superintendent Lloyd Baker was
that “all the balconies were to be protected at all times, which in this [sic] phase of the constructio n
meant that either the doors were screwed shut or there was a two by four across the door. ” Tr. 408. Therefore, Mr. DaPron had no way of knowing that either
[redacted]
or Keenan Benson would be exposed to a fal l hazard on that day. In hindsight, even
Mr. DaPron
conceded that, given
[redacted] ’s need for constant supervision, it would have been a better decision to send
[redacted]
home on the day of the accident. Tr. 399. Nevertheless,
his failure to do so can be characterized as negligent
or a lack of diligence
at best. See ,
Beta Constr. Co .,
16 B NA OSHC 1435 ,
1444
(No. 91-102, 1993) ( h olding that
it is not enough to show that
Reybold
was merely careless or displayed a lack of diligence. ).

In reaching the conclusion that Reybold’s violation of 29 C.F.R.
§1926. 501(b)(13)
was
not
willful, the undersig ned also considered the company’s overall attitude toward safety. The record reveals that
Reybold had a full-time Safety Officer (Frank Bailey) employed at the time of the accident
Tr. 127. Also,
Reybold had a written safety policy on fall protection at the time of the accident
which had also been provided to
[redacted]
prior to the accident.
CX-10 . Additionally,
Reybold had a Safety Committee in plac e at the time of the accident
and the Comm ittee attempted to address
issues r elated to
workplace safety
prior to the accident .
Tr. 336, 356; RX- 34, 35. In sum, the weight of the evidence does not support a finding of “willful”. Accordingly, Citation 2, Item 1 is modified from “willful” to “serious”.

Penalty Determination

The Commission, as the final arbiter of
penalties , 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
at
2213-14 . 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).

The
gravity
of a violation 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.

In this case,
c ounsel for
Reybold
stipulated to the proposed penalties based on the undersigned’s findings regarding classification. Tr. 172 , 311 . Accordingly, the proposed penalty of $7,000 for Citation 1, Item 1 is undisputed. Likewise, the modified penalty of $7,000 for Citation 2, Item 1 is undisputed. This
modified penalty is based on a
finding that Citation 2, Item 1 is properly classified as “serious” rather than “willful” as originally classified by the Secretary.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing 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 Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 alleging a violation of 29 C.F.R. § 1926.503(a)(1) is AFFIRMED as issued and a penalty in the amount of $7,000 is imposed.

2. Citation 2, Item 1 alleging a violation of 29 C.F.R. §1926.501(b)(13) is AFFIRMED as modified (from “willful” to “serious”) and a penalty in the
   amount of $7,000 is imposed.

/s/Keith E. Bell

Keith E. Bell

Judge, OSHRC 

Dated:

April 11, 2017

Washington, D.C.

"

1
In their Joint Prehearing Statement, the parties agreed to and admitted the following facts in this matter (Nos. 1-13).

2
At the hearing, the undersigned granted the Secretary’s motion for sanctions, under Rule 52(f)(1) of the Federal Rules of Civil Procedure, related to a last-minute production of documents that were responsive to an earlier discovery request made by the Secretary. One of the sanctions requested was the admission of certain facts as established. The facts are contained in a document marked CX-20 and admitted into evidence though counsel for the Secretary only sought to have four facts listed above (15-18) as “established.” Although the Secretary also sought relief in the form of an adverse inference, the undersigned finds no basis to impose such a sanction here. Tr. 313-14. Fed. R. Civ. P. 52.

3
In the transcript (pgs. 137 & 389), this individual whose first name is Mike is referenced with the last name “Klinen” and “Kline”. However, Reybold’s report of the July 14, 2014, fall incident refers to him by the
name Mike Clineff. RX-39 at
2.

4
At the hearing, counsel for the Secretary objected to Reybold’s affirmative defense of unpreventable
supervisory
employee misconduct. The basis for the Secretary’s objection is Reybold’s failure to specifically assert supervisory misconduct in its answer. It is well established that
pleadings before the Commission are to be liberally construed and easily amended.

Nat ’l
Realty and Const r . Co., Inc .
v. OSHRC , 489 F.2d 1257, 1264
(D.C. Cir. 1973).