LM Sanderson Construction, Inc.

Read the official release (oshrc.gov)

Plain-English summary

LM Sanderson Construction employees framed townhomes while working about 20 feet above lower levels. Employees stood on stacked roof sheathing supported by an elevated telehandler fork, a foreman worked from the top plate of an exterior wall, and other employees installed sheathing on a steep roof without compliant fall protection. The judge found that the elevated material stack functioned as a scaffold and required fall protection. He amended the other allegations to the residential-construction standard because the evidence established that standard applied and the employer was not prejudiced. The company’s infeasibility, greater-hazard, and employee-misconduct arguments failed, and its fall-protection plan did not satisfy the site-specific requirements. Three serious violations were affirmed with $5,600 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Three serious fall-protection violations affirmed; $5,600 total penalty assessed.
• Key point: Residential contractors need compliant fall protection or a valid site-specific alternative plan; blanket assumptions that protection is infeasible are insufficient.

Full text (OSHRC public release)


Document

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET No.
1 6 - 1321

LM SANDERSON CON STRUCTION , INC.,

Respondent.

Appearances:    Attorney Molly J. Theobald

U.S. Department of Labor,
Office of the Solicitor

New York, New York

For the
Complainant

Mr. David Sanderson

Vice-President, LM Sanderson Construction, Inc.

Webster, New York

For the Respondent

Before:    William S. Coleman

Administrative Law Judge

DECISION AND
ORDER

The Respondent,
LM Sanderson Construction, Inc.,
(LMS)
is
a construction company whose business includes
framing buildings and other related activities.

(Stip.
No. 2). In the spring of 2016,
LMS
was
working
on a
residential
construction project
in Rochester, New York,
known as Ivy Bridge Townhomes.

(Stip.
No.
2;
T.
129).

On
the morning of
April 7, 2016,
a
Compliance Safety and Health Officer
(CO) assigned to the
Rochester area office
of the
Occupational Safety and Health Administration (OSHA)
drove past the
Ivy Bridge Townhomes construction site
while
on his way to another worksite, when
he
observed what he
suspected to be a
violation of fall
protection standards. The CO
stopped
his car, took
some photographs from the roadside,
and then
sought his supervisor’s
permission to open an investigation. He received
the requested
permission later that same day
and
formally commenced
an
investigation
that
afternoon.

That
investigation
resulted in
OSHA issuing
a two-item serious citation to
LMS
on
July 6, 2016,
with a
proposed
penalty of $2,800 for each
citation
item, for a total proposed penalty of $5,600.

LMS timely contested the citation and proposed penalties, and the Executive Secretary of the Occupational Safety and Health Review Commission (Commission) docketed the matter on August 17, 2016. The Commission’s Chief Judge thereafter designated the matter for disposition under the Commission’s rule for “Simplified Proceedings,” 29 C.F.R. pt. 2200, subpt. M, and assigned the matter to the undersigned Commission Judge for hearing and decision.

Citation item 1
alleged a violation of the construction industry
fall
protection standard at 29 C.F.R.
§ 1926.501(b)(1), which
requires
that “[e]ach employee on a walking/working surface … with an unprotected side or edge which is 6 feet ... or more above lower levels shall be protected from falling by guardrail systems, safety net systems,
or
personal fall arrest systems.” Item 1 alleged that LMS had violated this standard on April 7, 2016 in that “an employee
was unloading roof sheathing from an articulating boom of a Caterpillar Telehandler --
20 feet above ground level; with unprotected sides, and were not using fall protection.”

Prior to the hearing, the Secretary filed a written motion to amend item 1. LMS
did not object
to the motion, and the motion was granted. 1 (T.
10-11).

As amended, item 1 alleged two instances
(instances “a” and “b”)
of a violation of § 1926.501(b)(1), with instance “a” being the originally described alleged violative condition
quoted
above. As to
instance “a,” the Secretary
pleaded in the alternative that if
§ 1926.501(b)(1)
was
not
the
applicable
standard,
then
either
one of
two other standards was. See
Commission Rule 30(e) (allowing for alternative pleading), 29 C.F.R. § 2200.30(e). Those two alternatively cited standards
are contained
in
29 C.F.R.
Part
1926, subpart L,
“Scaffolds.”

The
first alternative cited standard was
§ 1926.451(g)(1), which provides that
“[e]ach employee on a scaffold more than 10 feet
…
above a lower level
shall be protected from falling to that lower level” by certain means described within that section. The
other alternative cited standard
was
§ 1926.453(b)(2)(v), which pertains to aerial lifts used to elevate personnel.

In his post-hearing brief, the Secretary
took the
position
that
the standard
applicable to
instance “a” was
§ 1926.451(g)(1)
of the scaffolds standard. (Secretary’s Post-Hearing Brief, p. 2). Accordingly,
instance “a” will be adjudicated
only as an alleged violation of
§ 1926.451(g)(1).

Instance “b” of amended
item 1 alleged another
violation of the
fall
protection
standard at
§ 1926.501(b)(1),
in that
on April 7, 2016
“an employee was working without fall protection on surface below the partially constructed roof that was unprotected and 20 feet above ground level.”

Citation item 2
alleged a violation of
the fall protection standard at
§ 1926.501(b)(11), which
requires
that “[e]ach employee on a steep roof with unprotected sides and edges 6 feet …. or more above lower levels shall be protected from falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems.” The Secretary alleged in item 2 that LMS violated this standard at the Ivy Bridge Townhomes construction site on April 7, 2016, in that “employees were installing roof sheathing on surfaces 20 feet above ground level; with unprotected sides, and were not using fall protection.”

The undersigned conducted an evidentiary hearing in
Rochester, New York on December 15, 2016. The
Secretary filed his post-hearing brief, to which LMS thereafter filed a brief in response. Post-hearing briefing was completed
on
May 16, 2017, when the Secretary filed a statement that he would not file a brief
in reply.

The
salient
issues
for decision
are:

· Did the Secretary
prove by a preponderance of the evidence
that
LMS
violated the scaffolds
standard at § 1926.451(g)(1) when
employees were
atop a
stack of roof sheathing material that was supported on the elevated fork of a telehandler? (Item 1, instance “a”).

· Did LMS prove by a preponderance of the evidence that compliance with the scaffolds
standard at § 1926.451(g)(1) was infeasible? (Item 1, instance “a”).

· Would LMS be prejudiced by the Commission
Judge
ordering
sua sponte ,
after post-hearing briefing was completed, that citation
item 1, instance “b,” and
citation
item 2,
be amended to change the standards
that
the Secretary alleged were applicable [respectively, subparagraphs (1) and (11) of § 1926.501(b)] to
the fall protection standard for residential construction [subparagraph (13) of § 1926.501(b)]?

· Did the Secretary prove by a preponderance of the evidence that LMS
violated the
residential
construction fall protection standard at § 1926.501(b)(13)
when its foreman
was working without fall protection while standing on the top plate of an exterior wall while
adjusting
roof trusses? (Item 1, instance “b”).

· Did LMS prove by a preponderance of the evidence that
the foreman’s
violation of the fall protection standard alleged in item 1, instance “b”,
constituted
unpreventable
employee misconduct? (Item 1, instance “b”).

· Did the Secretary prove by a preponderance of the evidence that
LMS violated the
residential
construction fall protection standard at § 1926.501(b)(13)
when
employees installed
roof
sheathing
without
using any conventional
fall protection
system? (Item 2).

· Did LMS demonstrate by a preponderance of the evidence that it
met the exception
contained
in
§ 1926.501(b)(13)
for utilizing
certain
conventional
fall protection
systems
in residential construction
by demonstrating
both
(1) the use of such
conventional
fall protection
systems was infeasible, and (2) that it had developed
and implemented
a fall protection plan that complied with the provisions of § 1926.502(k)?
(Item 2).

For the reasons described below, the three alleged violations are affirmed, and a
penalty of $2,800
is assessed
for each
citation item, for a total penalty of $5,600.

F indings of
F act

The following facts were proven by at least a
preponderance of the evidence:

1. The
   Respondent, LM Sanderson Construction, Inc. (LMS) is a
   construction company
   based in Webster, New York,
   whose business includes
   framing
   buildings
   and
   other
   related construction activities. (Stip. No. 2). The number of workers that
   LMS
   employs
   is variable ,
   but
   LMS
   generally employs fewer than ten workers
   at any given time . ( T. 65;
   Stip. Nos. 3 & 4).

2. Beginning in February 2016, LMS
   began working on a
   residential
   construction
   project
   in Rochester, New York, known as
   Ivy Bridge Townhomes . (T.
   129).

3. On April 7, 2016, the LMS personnel at the
   Ivy Bridge Townhomes
   construction site included the foreman ,
   Timothy Lenz ,
   and three workers
   who Lenz supervised. Lenz’s supervisory responsibilities
   included overs ight of
   safe work practices . (Stip. No. 8; T. 128 -30). The vice-president of LMS, David Sanderson, was also present
   at the construction site that day ,
   and he
   personally
   participat ed
   in
   some
   construction activities .

When Sanderson was present , both he and Lenz
were involved in supervising the other
three
LMS
employees . (Stip. 8 ; T. 128 ).

4. The
   building
   under construction on which
   LMS employees were working
   on April 7, 2016
   was a two-story
   structure
   that was intended
   to be used as a home or dwelling . (T. 57-58). The building was
   being constructed using traditional wood frame construction materials and methods .

5. On
   the morning of
   April 7, 2016,
   LMS
   employees were
   completing the installation of
   roof
   trusse s
   on the building .

B y the afternoon ,
they had
beg u n to
sheath the
roof
with 4-ft x 8-ft plywood sheets to create a
roof
that would have a
slope
greater than 4 in 12 (vertical to horizontal) . (Stip .
No s .
7 &
9; T. 53-55 , 117 ).

The
roof
eave
was not protected by a wall or guardrail system . The eave
was about
18 to
20 feet
above
ground level
and about eight feet
above
the interior floor of the second story . ( Stip. No. 10 ; T.
41, 131 ).

6. The first floor of the
   building
   was wider than the second floor —it
   project ed
   outward
   about
   six to eight fee t
   from the
   exterior wall
   of
   the second story and had a flat roof that had been fully sheathed. (T. 76, 90).
   Th e edge of this flat roof was not protected by a wall or guardrail system, and was
   at
   least eight feet
   below
   the
   roof eave
   and
   was
   at least ten feet above
   ground level. (Stip. No. 10; T.
   131 ).

7. The photographs at Exhibits C-13, C-14 and C-18 depict the b uilding’s first floor project ing
   out
   from the second floor’s exterior wall . T he
   2x4 ’s
   that are depicted rising vertically
   from the first floor
   flat
   roof are set flush against the second floor exterior wall , and
   were
   not
   set on the outside edge of the first floor roof
   as the CO had mistakenl y recalled in his testimony .

( T.
79-80 , 93 ).

Citation Item 1,
I nstance “ a ”

8. LMS employees placed a stack of 4-ft x 8-ft plywood roof sheathing material on the fork of a
   Caterpillar-brand rough terrain forklift truck known as a “telehandler,” and
   elevated
   the sheathing materials
   to the roof
   by means of the telehandler’s extensible boom on which the fork was attached. The fork
   was elevated about one to two feet above
   the eave of the roof and was positioned in a manner so that about half the stack of plywood was suspended directly over the second floor roof, and the other half was suspended directly over the flat roof of the first floor projection. (Ex. C-6). The stack of plywood was about four feet high , so
   the top of the stack was
   about
   four feet higher than the telehandler’s fork, about
   12 feet higher than the flat roof of the
   first floor
   projection, and
   about
   22 to
   24 feet higher than ground level .
   After the
   stack of
   plywood had been elevated to that
   position ,
   at different times two
   LMS employees stepped from the
   building on to the stack to
   transfer
   individual
   plywood sheets
   onto
   the building
   and to cut plywood .
   Only one
   worker
   was
   atop
   the stack at any given time—one of those
   worker s was the
   foreman Lenz and the other
   was a worker who Lenz was responsible for supervising .

Neither
Lenz nor the other
worker
was protected from falling
while atop the
elevated stack by either a personal fall arrest system or guardrail system .

9. The elevated stack of plywood
   on which Lenz and the other employee were working as depicted
   in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19, constituted a work surface that was elevated above lower levels . This work surface
   constituted a “platform” as defined in
   § 1926.450 (b)
   (defining "platform" as "a work surface elevated
   above lower l evels”),
   so that the makeshift platform and the telehandler
   constituted a “scaffold” as
   defined in §  1926.450(b) (defining “scaffold” as “any temporary elevated platform … and its supporting structure … used for supporting employees or materials or both”).

10. The photograph at Exhibit C-6 accurately depicts foreman Lenz kneeling on the
    makeshift elevated platform
    without any fall protection. (T. 104-105, 116-117).

11. The photographs at Exhibits C-7, C-8, C-10, C-13, C-14, C-18, and C-19, accurately depict the other LMS worker in various postures (crouching, stooping, standing) while positioned on the
    makeshift elevated platform . Those photographs also accurately depict
    vice- president
    Sanderson standing on or near the top plate
    of the second floor exterior wall , within arm’s reach o f the
    makeshift
    elevated
    platform . Sanderson was
    supervising workers and
    was intending to act as a safety monitor for the worker on the stack of plywood a s well as for LMS
    workers
    on the roof
    installing
    sheathing ,
    who were also not
    using
    any
    conventional
    fall protection system. (Stip. No. 11; T. 116-18, 141-142).

12. If either of the employees who had been
    atop
    the
    makeshift
    elevated platform had fallen ,
    there is a substantial
    probability that
    the employee would have sustained
    serious physical harm
    or even death. (T. 60-64).

13. I t was no t necessary for
    Lenz
    or the other worker to have been
    atop
    the stack of plywood
    as depicted
    in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19, in order
    for LMS
    to
    transfer the
    plywood
    from the telehandler
    to the roof ,
    or
    to cut the
    plywood. (T. 104-107).

Citation Item 1, Instance “b”

14. On the morning of April 7 , 2016, before the workers had begun to install the plywood sheathing material to the roof frame, the foreman Timothy Lenz
    was
    moving roof trusses while
    standing
    on
    or near the top plate of the
    exterior wall of the building in between two
    roof
    trusse s . ( Stip. No. 7;
    T.
    89- 90). His position at that
    time is accurately depicted in the photographs set forth in Exhibits C-2, C-3, C-4 and C-5. The
    top plate of
    the
    exterior wall
    constituted an
    unprotected edge
    and was
    about
    (a)
    twenty feet above ground level ,
    (b)
    eight feet above the
    flat roof
    of the first-floor projection, and
    (c)
    eight feet above the
    next lower level in the building’s
    interior. ( Stip. No. 10;
    T.
    55,
    90 , 131 ). Lenz was not protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems. (T. 42-43, 54 , 132 ).

15. If Lenz had fallen,
    there is a substantial
    probability that serious physical harm could
    have
    result ed. (T. 60-64).

16. The vice-president of LMS, Dave Sanderson,
    was at the construction site at the time
    that Lenz
    was
    standing on the top plate of the exterior wall without fall protection, but
    Sanderson
    did not see
    or know
    that Lenz was in th at
    position .

Sanderson
did not
learn that
Lenz had been
in that position
until later that day,
when
Lenz
told Sanderson that he
had seen
someone
(the CO) taking photo graph s of him
while
in
he had been in
that position . (T.
100,
132).

17. LMS ’s
    standard procedure for setting roof trusses
    is
    for work ers to do so while
    standing
    on a ladder. Lenz
    was aware of this standard procedure and he consciously did not follow it while engaged in the activity
    depicted in the photographs at Exhibits C-2, C-3, C-4 and C-5 . (T. 90 , 133 ).

18. LMS disciplined Lenz for standing on the top
    plate
    of the wall without
    using
    any fall protection. The written record of this discipline indicated that the discipline imposed was a “verbal warning” and that
    it
    was a “First Notice.” (Ex. R-6).

At the time
Lenz
receiv ed
this discipline,
he
ha d
been employed by LMS
for about
six
years
and
had
been
a
supervisor for about three to four years .

(T.
99,
128).

LMS had never before
disciplined Lenz for
failing to use fall protection . (T. 100 , 134 ).
Except for this discipline of Lenz, there was no
evidence
of any other instance of LMS disciplining an employee for
violati ng
a
safety rule.

19. LMS
    had a
    written
    “ Company Safety Plan ”
    in place on April 7, 2016,
    that include d
    a section titled “Installing and Spreading Roof Trusses . ”

(Ex. R-1, p. 4). This section provide d
that
“on a site-specific basis , ” LMS would “develop a plan for the protection of workers from falls in regard to the installation of roof trusses,” and that “[a]ll employees involved in this job-specific task will be instructed to ut ilize 10 0 % fall protection CONTROLS utilizing PFAS
[personal fall arrest system] to solid anchorage point with possibly the exception of receiving and spreading the roof trusses.”

( Id. )

LMS did not
follow this section of the
C ompany
S afety
P lan in that it did not
establish a site-specific plan for the Ivy Bridge Townhomes construction site for the protection of workers installing roof trusses.

(T.
143 ).

20. The “Installing and Spreading Roof Trusses” section of the Company Safety Plan
    further
    provided that “[a]fter careful consideration [LMS] has assessed that it would cause a greater hazard to personnel to utilize conventional fall protection during the spreading of
    the
    roof trusses ,” so that while spreading roof trus ses “an
    employee may be exposed to a short duration fall hazard that cannot be addressed through the use of PFAS and/or the setting of the scaffold.” (Ex. R-1, p. 4). This section goes on to describe measures to be taken to minimize the duration of exposure to a fall hazard du ring truss spreading activities, an d includes the provision that “[l] adders will be used to secure and
    brace trusses when possible.” (Ex. R-1, p. 5). LMS
    did
    not raise the affirmative defense of “greater hazard” to the violation alleged in
    instance “b” of
    item 1. (T.
    16, 31 ).

Citation
Item 2

21. The photographs
    at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19
    accurately depict LMS workers installing the plywood roof sheathing material to the roof trusses
    at the Ivy Bridge Townhomes construction site on April 7, 2016 . The LMS workers
    shown in the photographs
    installing the roof sheathing were not protected by
    a
    conventional fall protection system (i.e.,
    guardrail system, safety net system, or
    personal fall arrest system ) .

Those photographs also accurately depict
vice - president
Sanderson standing on or near the top plate
of the second floor exterior wall , also
without
using
any conve ntional fall protection system . Sanderson was
supervising workers and
was intending to
serv e
as
a
safety monitor for the workers who were sheathing the roof , none of whom
w as
using
any conventional fall protection system. (Stip. No. 12; T. 116-18, 141-142).

22. LMS’s written Company Safety P lan
    in effect on April 7, 2016,
    has a section titled “Installing Roof Sheathing , ”
    which
    provides as follows (Ex. R-1, p. 7):

There are serious fall hazards associated with the installation of roof sheathing and
[ LM S]
will
eliminate the potential hazards associated with this task through the use of lines of
demarcation, PFAS and solid anchorage points as described in the fall protection controls
aspect of the written plan.

Retractable lifeline stands may also be utilized by workers installing
roof sheathing.

All fall protection controls will be established under the guidance of the
competent person, along with safety rails around perimeter.

LMS was not emp loying any of the fall protection systems described in this section of the Company Safety Plan during the roof sheathing activities depict ed in the photographs at
Exhibits C-6, C-7, C-8, C -10, C-13, C-14, C-18, and C-19.

( LMS did intend to install roof anchors and
to begin to
us e
the
personal fall arrest system s
that
it had onsite , but only after
having first partial ly
sheathed the roof
[T. 138, 150-51] . )

23. If any
    of
    the
    employee s
    installing roof sheathing
    without fall protection
    had fallen,
    there is a substantial
    probability that
    the employee would have sustained
    serious physical harm
    or even death. (T. 60-64).

24. The evidence is insufficient to establish
    that it was
    technologically
    impossible
    to use a conventional fall protection system (i.e., guardrail system, safety net system, or personal fall arrest system)
    to perform the roof sheathing activities
    depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19 . (T. 135-140).

25. LMS did not
    develop or
    implement a fall protection plan
    for the roof sheathing activities depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19 that :
    (a)
    was developed specifically for the Ivy Bridge Townhomes construction site ;
    (b)
    documented the reasons why the use of conven tional fall protection systems we re infeasible ;
    (c)
    included a discussion of other measures that would be taken to reduce or eliminate the fall hazard for workers w ho could not
    be provided with protection from the conventional fall protection systems;
    or
    (d) identified each location where conventional fall protection methods
    could
    not be used ,
    classified those locations
    as controlled access zones ,
    and identified employees authorized to work in such controlled access zones. (T. 142-144; Ex. R-1).

Discussion

The Commission
obtained
jurisdiction
of this
matter
under section 10(c) of the
Occupational Safety and Health
Act
(Act)
upon
LMS’s timely contest of the citation and proposed penalties.

29 U.S.C.
§
659(c). At all relevant times,
LMS
was
an employer covered by the Act because it met the Act’s definition of
“employer . ”

2 9 U.S.C.
§   652(5).

To prove a violation of an OSHA standard, the Secretary must
establish
that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the employer knew or could have known of the condition with the exercise of reasonable diligence.

Astra Pharma .
Prod s . , 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981)
aff’d in relevant part , 681 F.2d 691 (D.C. Cir. 1980).

Citation Item 1 , instance
“ a ” —

(workers
atop
the
elevated stack of plywood)

Although
the Secretary
pleaded
three alternative safety
standards
as applicable to instance “a” of item 1,
in his post-hearing brief the Secretary
settled
on
§ 1926.451(g)(1)
as being the applicable standard
among the three. Section
1926.451(g)(1)
requires
that “[e]ach employee on a scaffold more than 10 feet
…
above a lower level
shall be protected from falling to that lower level” by certain means described within that section.

Applicability of
§ 1926.451(g)(1)

Section 1926.45l(g)(l)
is included in
the construction industry standards at
subpart L,
“Scaffolds.”

Subpart L
applies to "all scaffolds used in workplaces covered by” the construction industry standards codified in 29 C.F.R. Part 1926.

29 C.F.R § 1926.450(a).

The term “scaffold”
is
defined as
"any temporary elevated platform (supported or suspended) and its supporting structure (including points of
anchorage), used for supporting
employees or materials or both."

29 C.F.R. § 1926.450(b).

The preamble to subpart L
shows that the
Secretary
intended
to
allow
equipment such as rough terrain forklifts
(like
the telehandler involved here)
to be used to support scaffold platforms,
and that
if so used the platforms “must comply with the applicable requirements of § 1926.451 for capacity, construction, access, use,
and
fall protection .”

Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed. Reg. 46026, 46044 (August 30, 1996)
(to be codified at 29 C.F.R. pt. 1926)
(emphasis supplied). This
stated
intent is
manifest
in
provisions of subpart L
that
impose specific requirements on
the
design and use of forklifts and “similar pieces of equipment” when used to support scaffold platforms. See , e.g.,
§§ 1926.451(c)(2)(iv) & (v). 2 The meaning of
subpart L
is plain—some of its provisions unambiguously
apply
to
elevated
platforms supported by forklifts and other similar
equipment,
such as
telehandlers. See Exelon Generating Corp. , 21 BNA OSHC 1087, 1090 (No.
00-1198, 2005) (upholding unambiguous reading of cited standard that was consistent with structure of whole standard and its
preamble);
accord ,
OSHA Interpretation letter dated November 27, 2001,
“Applicable Standards to Lifting Personnel on a Platform Supported by a Rough-Terrain Forklift;”
Salco Constr., Inc. ,
No. 05-1145, 2006 WL
1719697, at * 11-12
(O.S.H.R.C.A.L.J., Apr. 24,
2006) (concluding that
a
personnel platform
that had
guardrails on three sides
and
was elevated on the fork of a
telehandler
constituted a “scaffold”
as defined in subpart L).

Because
the LMS
employees
were
working
from a scaffold
platform, the general fall protection standard
that was originally
cited does
not apply.

See
29 C.F.R. § l926.500(a)(2)(i) (specifying that the
general fall protection standards
for construction workplaces set forth in subpart M of Part 1926
do not
apply
to scaffolds, but rather that
fall protection requirements
for employees working on scaffolds
are
provided by
the scaffold
standard at
subpart
L);
see also
OSHA Directive STD 03-11-002, “Compliance Guidance for Residential Construction” published December 16, 2010,
at page 2
(noting “that fall protection requirements for residential construction work performed on scaffolds
…
are in Subpart L
…
not 29 CFR 1926.501(b)(13)”).

Compliance with § 1926. 451 ( g )(1)

Section 1926.451(g)(1) requires
that “[e]ach employee on a scaffold more than 10 feet
…
above a lower level
shall be protected from falling to that lower level” by certain
prescribed
means
depending on the type of scaffold involved.

For the makeshift scaffold platform involved here,
subparagraph (vii) of § 1926.451(g)(1)
specifies the types of fall protection that would meet the standard,
and
requires
that each worker on the platform “be protected by the use of personal fall arrest systems or guardrail systems
meeting the requirements of [§ 1926.451(g)(4)].” § 1926.451(g)(1)(vii).

The work surface of the makeshift scaffold platform was more than 10 feet
higher than
all
three levels to which a worker
who was
atop the platform could fall—the
ground
level, the flat rooftop of the first floor projection, and the interior second floor of the building under construction. Neither of the
workers on the platform as depicted in the photographs at Exhibits
C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19
was protected by the use of personal fall arrest system or guardrail systems. LMS did not comply with the standard.

Employee
Exposure,
and
Employe r Knowledg e

Foreman Lenz and one other LMS employee
were exposed to the violative condition
as
depicted in the photographs at
Exhibits C-6, C-7, C-8, C- 10, C-13, C-14, C-18, and C-19 , and this evidence establishes the “employee access” element of the Secretary’s burden of proof .

The vice-president of LMS, Dave Sanderson, was standing within arm ’ s reach of the platform wh en each of the
employees w as
atop the platform . His
actual knowledge of the violative condition is imputable to LMS , and establishes the “employer knowledge” element of the Secretary’s burden of proof .

The Secretary has met his burden to establish by a preponderance of the evidence that
LMS
violated § 1926.451(g)(1) in the manner alleged in
instance “a” of
item 1.

Infeasibility
Defense to Violation of § 1926. 451 ( g )(1)

LMS
interposed the affirmative defense of infeasibility to
citation item
1, instance “a.”

An employer who raises the affirmative defense of infeasibility has the burden to prove that “(1) literal compliance with the requirements of the standard was infeasible
under the circumstances and (2)
either
an alternative method of protection was used
or
no alternative means of protection was feasible.” State Sheet Metal Co. , 16 BNA OSHC 1155, 1160 (No. 90-1620, 1993)
(consolidated) (emphasis in original).

LMS’s
foreman, who was one of the two LMS employees exposed to the hazardous condition, acknowledged in his testimony that it had not been necessary for
anyone
to step onto the makeshift
elevated
platform
on the telehandler. (T. 104-107). The foreman’s forthright
testimony
on this point
was reliable and credible, and it
vitiates the
claim that it was
impossible
to
perform required work without violating
§ 1926.451(g)(1). LMS has failed to establish the affirmative defense of infeasibility as to
instance “a” of
item 1.

Classification of Violation
of § 1926.451(g)(1)

The Act provides that a
violation is “serious” if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). “ [Section 666(k)]
does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result should an accident occur.” Pete Miller, Inc.,
19 BNA OSHC 1257, 1258 (No. 99-0947, 2000).

If either of the workers had fallen from the makeshift platform onto any of the three levels below it (the ground level, the flat rooftop of the first floor projection , or the interior floor for the second story)
serious injury,
and possibly even a fatal injury, could result. (T. 61). The violation
is
correctly
classified
as “serious.”

Citation Item
1, instance “b”
–

Foreman Lenz standing on top plate
of wall

Instance “b” of citation item 1 alleges that LMS
violated
§
1926.501(b)(1)
when
“an employee was working without fall protection on surface below the partially constructed roof that was unprotected and 20 feet above ground level.” At the outset
of the hearing, the parties expressed their
common understanding that instance “b”
pertained to
the
foreman, Lenz,
having been
standing on the top plate of the wall
without fall protection
while adjusting roof trusses, as
is
depicted in the photographs at Exhibits
C-2, C-3, C-4 and C-5 . The parties also expressed their common understanding that
as to th e
violation
alleged in instance “b” ,
that
LMS was interposing the affirmative defense of unpreventable employee misconduct. (T. 16-17).

Applicability of § 1926. 501

The cited standard is contained in § 1926.501, which by its terms “sets forth requirements for employers to provide fall protection systems.” § 1926.501(a)(1). The
Secretary
cited subparagraph (b)(1) of § 1926.501
to be applicable standard. That subparagraph
provides:

(b)(1)
Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface)
with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

While paragraph (b) of
§
1926.501
does
indeed
apply
to the alleged violative
condition,
its
subparagraph
(1)
does not. Rather, because the Ivy Bridge Townhomes construction site involved residential construction, subparagraph (13) of
paragraph
(b)
applies. Subparagraph
(b)(13)
is applicable to
“residential construction,” and
provides as follows:

(13)
Residential construction.
Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.

Exception: When the employer can
demonstrate that it is infeasible or
creates a greater hazard to use these
systems, the employer shall develop and
implement a fall protection plan which
meets the requirements of paragraph (k)
of
§ 1926.502.

Note:
There is a presumption that it is
feasible and will not create a greater hazard
to implement at least one of the above-listed
fall protection systems.

Accordingly, the
employer has the burden of establishing that
it is appropriate to implement a fall
protection plan which complies with
§   1926.502(k) for a particular workplace
situation, in lieu of implementing any of
those systems.

Subparagraph (b)(13)
was
specifically
promulgated
to
address the “unique work conditions” involved in residential construction work
and
to
be the standard
that applies to
that
unique
work
environment.

Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. 40672, 40695 (Aug.
9, 1994);
OSHA Directive STD 03-11-002,
“Compliance Guidance for Residential Construction,” published Dec.
16, 2010,
at page 14 (stating that
“a citation for violating 1926.501(b)(13)
should be issued” for an employer
that is
engaged in residential construction
and
that “does not provide guardrail systems, safety net systems, personal fall arrest systems, or other fall protection allowed under 1926.501(b)”).

The purpose of the
conditional clause
in subparagraph (13)
(“unless another
provision in paragraph (b) of this section provides for an alternative fall protection measure”)
is
not for
any such
alternative measure to supplant subparagraph (13) as the applicable standard
for the residential construction environment. Rather,
the implementation of
any
such alternative measure in
a
residential construction
worksite would
establish
compliance
with subparagraph (13). See
Safety Standards for Fall Protection in the Construction Industry,
supra , 59 Fed. Reg. at 40693 (noting that
as to compliance with subparagraph (b)(13),
“if
another provision in paragraph (b) allows an alternative fall protection measure, such as covers over holes, those alternatives measures are also acceptable and do not need to be documented in a fall protection plan in order to be used”);
see also
OSHA Instruction STD 3.1,
“Interim Fall Protection Compliance Guidelines for Residential Construction , ”
issued
December 8, 1995
(providing that “[f]ailure to provide fall protection in accordance with any part of this directive shall be cited as a violation of 1926.501(b)(13)”),
superseded by OSHA Instruction STD 03-00-001,
“Plain Language Revision of OSHA Instruction STD 3.1,”
dated June
18, 1999,
which
in turn
was cancelled by OSHA Directive STD 03-11-002,
supra .

For purposes of determining the applicability of
subparagraph (13) of § 1926.501(b), the Secretary interprets the
term
“residential construction” “as covering construction work that satisfies the following two elements: (1) the end-use of the structure being built must be as a
home, i.e., a dwelling; and (2)
the structure being built must be constructed using traditional wood frame construction materials and methods.”

OSHA Directive STD 03-11-002,
supra , at page 11. The Ivy Bridge Townhomes
construction site plainly meets this definition of the term “residential construction,” and
thus the applicable standard is
subparagraph (13) of § 1926.501(b),
and
not subparagraph (1) as
originally
alleged
in the citation.

Because the Secretary did not cite
§ 1926.501(b)(13) as the applicable standard,
either
the violation as alleged must be vacated because the standard
that was cited
is not applicable
to the alleged violative condition, or
the alleged violation
must be amended
sua sponte
by the Commission to allege the standard
that is applicable.

“The Commission has recognized that amendments, including those made
sua sponte , are routinely permissible where they merely add an alternative legal theory, but do not alter the essential factual allegations contained in the citation.”

Avcon, Inc. , 23
BNA
OSHC
1440, 1451
(No.
98-0755, 2011)
(consolidated), quoting
N.Y. State Elec. & Gas Corp. , 17 BNA OSHC 1129, 1132
(No. 91-2897, 1995) (internal quotes
omitted). Such a
sua sponte
amendment is
not
appropriate
if
the respondent would be prejudiced thereby. “In determining whether a party has been prejudiced, the Commission looks ‘at whether the party had a fair opportunity to defend and whether it could have offered any additional evidence if the case was retried. ’”

Id.
at 1451-52
quoting
Nuprecon LP , 22 BNA OSHC 1937,
1939
(No. 08-1037, 2009).

Amending
the
alleged violation described in instance “b” of
item 1 to allege a violation of
subparagraph (13) of
§ 1926.501(b)
rather than subparagraph
(1)
would not prejudice LMS.

Id.
(reflecting the
Commission’s
sua sponte
amendment of a citation
to allege the applicable standard to be subparagraph
(2)(i) of §
1926.501(b),
rather than the
originally
cited subparagraph (1)
of 1926.501(b)).

LMS had a fair opportunity to defend the allegation that it lacked fall protection required by § 1926.501(b). LMS
does not
dispute that
Lenz was not utilizing
any fall protection
system, and
it
seeks to avoid responsibility for the violation by
establishing
the affirmative defense of unpreventable employee misconduct. Instance “b” of item 1 is therefore ordered amended
sua sponte
to allege a violation of § 1926.501(b)(13).

Violation
of
§ 1926. 501 ( b )(1 3 )

The
Findings of
Fact
at
¶¶
4–6
&
14
supra
establish that
while
foreman Lenz
was positioned
on the top plate
of the wall
to adjust roof trusses
(as depicted in the photographs at Exhibits
C-2, C-3, C-4 and C-5),
he was engaged in residential construction and was exposed to a fall of more than six feet above lower levels without utilizing any fall protection system
prescribed by
§ 1926.502(b)(13). Lenz was a supervisor and his
awareness of his own violative conduct
is sufficient for the Secretary to meet his burden
to
prove
that LMS had knowledge of the violative condition,
without having to demonstrate any inadequacy or defect in
LMS’s safety program. 3
Dover
Elevator , 16 BNA OSHC
1281, 1286 (No. 91-862, 1993).

Affi rmative Defense of Unpreventable
Employe e
Misconduct

to Citation Item 1, instance “b”

To establish the affirmative defense of unpreventable employee misconduct,
LMS
must show that it “(1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.”

Manganas Painting Co. , 21 BNA OSHC
1964,
1997
(No.
94-0588, 2007).

An
employer’s burden
to establish this defense
is
“more rigorous”
where, as here, a
violation
involves
the
misconduct
of
a supervisor, since a
supervisor’s duties include “protect[ing] the safety of employees under his supervision” and the supervisor’s misconduct is “strong evidence that the employer’s safety program is lax.”

Stark
Excavating, Inc. , 24 BNA OSHC 2218, 2220 (No. 09-0004, 2014) (consolidated)
aff’d,
811 F.3d 922 (7th
Cir. 2016), quoting
CBI Servs., Inc. , 19 BNA OSHC 1591, 1603 (No. 95-0489, 2001),
aff’d per curiam , 53 F. App’x 122 (D.C. Cir. 2002) (unpublished).

Here, LMS
had an established work rule designed to prevent the violative condition—the Company Safety Plan required “100% fall protection CONTROLS
utilizing”
personal fall arrest systems (PFAS)
during installation of roof trusses, subject to exception. 4 LMS adequately communicated this rule to its employees, as
demonstrated by
Lenz’s
knowledge
of that rule. LMS also took steps to discover violations of that rule by having a supervisor on
construction
sites
whose responsibilities included
assuring employee compliance with
company safety rules.

The evidence is insufficient to establish the fourth enumerated element of the defense, however—that LMS effectively enforced the rule when
a
violation was discovered. The photographs that show Lenz in violation of § 1926.501(b)(13) at Exhibits C-1 and C-3
also
depict
another LMS
employee
standing on the center chord of one of the roof trusses about 10 to 15 feet away from Lenz. Lenz and the other employee were plainly visible to each other, and the other employee
was
violating the same work rule that Lenz was violating in his plain view. (T. 96-98). Unlike Lenz, however, that employee was not disciplined for violating the work rule. (T. 100).

The
only evidence
presented
describing
LMS’s
disciplinary policy
is the following broad policy statement
contained
in the Company Safety Plan: “Management will take disciplinary action against an employee who willfully and repeatedly violates workplace safety rules.” (Ex. R-1, p. 1). There was no evidence that LMS had
developed or had
implemented any formal disciplinary program or procedure. Cf.
Thomas Indus .
Coatings, Inc. , 23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012)
(noting instances of employee discipline
that were
meted out
prior to OSHA inspection
pursuant to
a
disciplinary program). The
only evidence of any LMS employee having
ever
been disciplined
for failure to comply with
any safety rule
was the reprimand that Lenz received for the conduct described in instance “b”—and this
was the only
time
over Lenz’s six years’ employment that
LMS had disciplined
him
for
not utilizing required fall protection. This
evidence of a
single instance of
either pre- or
post-inspection discipline
does not suffice to
establish that LMS had been effectively enforcing its work rules
prior to the inspection.

See Jersey Steel Erectors , 16 BNA OSHC 1162, 1165 n.3
(No. 90-1307, 1993)
(finding the
employer’s
discipline of
a
foreman
after
the foreman’s violative conduct
was
identified
during
an
OSHA inspection
did not
reflect
the existence of
a “coherent and integrated policy designed to increase employee compliance with” company
work rules),
aff’d
19 F.3d 643 (3d Cir.
1994)
(unpublished).

LMS has failed to carry its burden to establish the
defense of
unpreventable employee misconduct.

Classification of Violation
of
Citation Item 1, Instance “b”

Lenz was exposed to a fall of about eight feet to the interior of the building, eight feet to the flat roof of the first floor projection, and potentially
about
18 to 20
feet to the ground level. Lenz’s testimony that he was “very comfortable” working without fall protection and that he did not consider working without fall protection to have been a “serious” or “deadly” infraction
was seemingly
based
on his confidence in his skills and his belief that he was not at serious risk of actually falling. (T. 93-94). As noted previously, it is not the probability of an accident occurring that renders a violation “ serious” or not,
but rather whether “ a serious injury is the likely result should an accident occur.” Pete Miller, Inc.,
supra.

The violation
described in instance “b” of citation item 1
is
correctly
classified as “serious.”

See
Finding of Fact ¶
15 ,
supra .

Citation Item 2 –

Workers Installing Roof Sheathing

Citation i tem 2
alleged that LMS violated § 1926.501(b)(11) when
LMS employees were installing roof sheathing without using fall protection on surfaces with unprotected sides, 20 feet above ground level. Section 1926.501(b)(11) is captioned “Steep roofs” and requires that “[e]ach employee on a steep roof with unprotected sides and edges 6 feet …. or more above lower levels shall be protected from falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems.” At the outset of the hearing, the parties expressed their common understanding that
LMS was asserting the affirmative defense of infeasibility
to
this alleged violation. (T. 31).

For the same reasons
that were
described
supra
in connection with instance “b” of item 1, the applicable standard is subparagraph (13) of § 1926.501(b),
and not
the
originally cited
subparagraph (11). 5 And also for the same reasons described
supra
in connection with instance “b” of item 1,
citation item 2 is amended
sua sponte
to allege
that subparagraph (13) of § 1926.501(b) is the
standard
that is applicable to the alleged violative condition. Similarly,
LMS will not be prejudiced by the
amendment because
it
had a
fair opportunity to defend and could
not have
offered any additional evidence
pertinent to the alleged violation
if the case were
retried.

The Findings
of Fact
at
¶¶
4–5 &
21
supra
establish
the elements of the
Secretary’s burden
of proof that
LMS violated § 1926.501(b)(13) in the manner alleged in item 2. LMS seeks to avoid responsibility for the violation by
establishing the affirmative defense of infeasibility.

The infeasibility defense
is
expressly
integrated into
subparagraph (b)(13). Subpart M defines the
term “infeasible”
as follows:
“ Infeasible
means that it is impossible to perform the construction work using a conventional fall protection system
(i.e., guardrail system, safety net system,
or personal fall arrest system) or that it is technologically impossible to use any one of these systems to provide fall protection.” 6

§ 1926.500(b). The preamble to subpart M indicates that this definition was informed by case law involving the infeasibility defense. “Safety Standards for Fall Protection in the Construction Industry,”
59 Fed. Reg. 40672, 40678 (August 9, 1994) (stating that the
definition of the term
“infeasible” “has evolved from litigation involving contested citations where employers have asserted that compliance with an OSHA requirement was ‘infeasible’ or ‘impossible’”).

As set forth in Finding of Fact ¶
24,
supra , LMS did not carry its burden to demonstrate that use of conventional fall protection systems was
technologically
impossible
for the workers who were installing sheathing as depicted
in
the photographs at Exhibits
C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19. Nevertheless,
even
if
the scant
and conclusory
testimony
that the use of
conventional fall protection system s was
not technologically possible
was accepted at face value
(T. 135-140) ,
the infeasibility defense fails.

Under § 1926.501(b)(13), once an employer establishes that utilizing conventional fall protection
systems
is infeasible for any aspect of residential construction,
the standard
allows an employer to
perform the construction work
without using a conventional
fall protection
system, but only if the
employer
has
“develop[ed]
and implement[ed]
a fall protection plan which meets the requirements of paragraph (k) of § 1926.502.” Paragraph (k) of § 1926.502 provides as follows:

(k)
Fall protection plan.
This option is available only to employees engaged in leading edge work, precast concrete erection work, or residential construction work (See § 1926.501(b)(2),
(b)(12), and (b)(13)) who can demonstrate that it is infeasible or it creates a greater hazard to use conventional fall protection equipment. The fall protection plan must conform to the following provisions.

(1) The fall protection plan shall be prepared by a qualified person and developed specifically for the site where the leading edge work, precast concrete work, or residential construction work is being performed and the plan must be maintained up to date.

(2) Any changes to the fall protection plan shall be approved by a qualified person.

(3) A copy of the fall protection plan with all approved changes shall be maintained at the job site.

(4) The implementation of the fall protection plan shall be under the supervision of a competent person;

(5) The fall protection plan shall document the reasons why the use of conventional fall protection systems (guardrail systems, personal fall arrest systems, or safety nets systems) are infeasible or why their use would create a greater hazard.

(6) The fall protection plan shall include a written discussion of other measures that will be taken to reduce or eliminate the fall hazard for workers who cannot be provided with protection from the conventional fall protection systems. For example, the employer shall discuss the
extent to which scaffolds, ladders, or vehicle mounted work platforms can be used to provide a safer working surface and thereby reduce the hazard of falling.

(7) The fall protection plan shall identify each location where conventional fall protection methods cannot be used. These locations shall then be classified as controlled access zones and the employer must comply with the criteria in paragraph (g) of this section.

(8) Where no other alternative measure has been implemented, the
employer shall implement a safety
monitoring system in conformance with
§ 1926.502(h).

(9) The fall protection plan must
include a statement which provides the
name or other method of identification
for each employee who is designated to
work in controlled access zones.

No other employees may enter controlled
access zones.

(10) In the event an employee falls, or
some
other related, serious incident
occurs, (e.g., a near miss) the employer
shall investigate the circumstances of the fall or other incident to determine if the fall protection plan needs to be changed (e.g. new practices, procedures, or training) and shall implement those changes to prevent similar types of falls or incidents.

As described in Finding of Fact ¶
25,
supra ,
LMS did not have a fall protection plan in place that met the requirements of subparagraphs (1), (3), (5), (6), (7) or (9) of § 1926.502(k). LMS thus failed to meet the second prong of the
exception
set forth in § 1926.501(b)(13) to the general mandate that conventional fall protection systems must be used in residential construction.

Because LMS
failed to take
the measures required by § 1926.501(b)(13) to mitigate the
fall hazard to which employees were exposed while not using conventional fall protection systems,
LMS’s defense of infeasibility as to citation item 2 fails.

The violation described in citation item 2 is appropriately classified as a serious violation for the same reasons that the other two violations constitute serious violations.

Penalty Assessment

The permissible range of penalties for a serious violation
that was
in effect when the proposed penalty was assessed
was
from no penalty to $7,000. ( 29 U.S.C. § 666(b) ; T 62) . The Commission and its judges conduct
de novo
penalty determinations and have discretion to assess penalties based on the facts of each case and the applicable statutory criteria. Valdak Corp ., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995)
aff’d , 73 F.3d 1466 (8th Cir. 1996);
Allied Structural Steel , 2 BNA OSHC 1457, 1458 (No. 1681, 1975).

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the Commission give “due consideration” to four criteria: the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Specialists of the S . ,
Inc. , 14 BNA OSHC 1910 , 1910
(No. 89-2241, 1990). “ Gravity ”
is the primary consideration among these four statutory criteria, and is determined by “such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” J.A. Jones Constr. Co. ,
15 BNA OSHC 220 1 , 2214 (No. 87-2059, 1993).

The Secretary seeks
a penalty of $ 2 , 800 .00
for
each
citation item , for a total proposed penalty of $ 5 , 60 0.00. The Secretary determined that
a resulting injury from each of the violative conditions would have been of “higher” severity ,
and
that the probability of an injury resulting from each of the violations was
“greater”
(as opposed to “lesser”) .

The Secretary accorded a 60% reduction in penalty for LMS’s small size , and accorded no reductions for
good faith or prior history .

(T. 63-68).

LMS asserts that the violations should not be regarded as
having been “ high gravity ”
on the argument that
none of the employees were exposed to a fall to ground level. Rather, LMS argues that no employee could have fallen
further than
the
floor of the second story on the inside of the building, or the
flat roof of the first floor projection. LMS believes
that any fall
towards the exterior of the building
would have been arrested by the flat roof of the first floor projection.

This argument is rejected. First, a
landing after an unintended fall is like ly
to be an awkward landing, and a n awkward landing from an eight - foot fall
is likely to
result
in serious injury and possibly
even
a
fatal injury . Second, the edge of the
first floor’s
flat roof was unprotected, and nothing would have
prevented
an employee who had fallen and landed on t hat
flat roof from falling
further
from that level to the ground level and sustaining a second impact in the fall. For these reasons, a ll three violations were reasonably classified to have been high gravity violations.

The
record
supports
the substantial
reduction of the penalty to account for
LMS’s
relatively small size , a nd
such a substantial reduction
was provided in the penalties
originally
proposed .

(T. 65-66).

While there was no evidence that LMS had been previously cited for violations of safety or health standards,
considering that the
Company Safety Plan allowed for exceptions to the
use of fall protection
that
would
have
result ed
in
violat ions of
applicable fall protection standard s , no
penalty
reduction
i s
in order
on account of
LMS’s compliance history.

As for
adjust ing the penalty
for “ good faith, ”
this entails assessing an employer’s health and safety program, its commitment to job safety and health, its cooperation with OSHA, and its efforts to minimize any harm from the violation.

Monroe Drywall Constr., Inc. , 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013);
Nacirema
Operating Co. , 1 BNA OSHC
1001,
1002
(No. 4, 1972) .
T he inadequacies in LMS’s safety program that existed
at the time of the violations
weigh
heavily
against any reduction for good faith .

While
LMS’s post-inspection expenditures and measures taken to improve its safety program are appropriate and commendable (Exs. R-3, R-4, R-5, R-7, R-8, R-9 and R-10; T.
119–127) , they do not bear on whether LMS
had made
good faith efforts to comply with applicable standards
and minimize harm from the violations at the time they occurred .

Considering these factors, a penalty of $2,800.00 for each violation for a total penalty of $5,600.00 is appropriate

ORDER

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

If any finding is in
actuality
a conclusion of law or any
legal
conclusion stated is in
actuality
a finding of fact, it shall be deemed so,
any
label
to the contrary
notwithstanding . Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that :

1.
   Citation 1, i tem 1 , instance “a”
for a serious violation of 29 C.F.R.
§   19 26 . 451 ( g )(1)
is AFFIRMED .

2.
   Citation 1, i tem 1 , instance “b” ,
is amended to allege a violation of
29 C.F.R. §   19 26 . 501(b)(13), and as amended the violation §
19 26 . 501(b)(13) is
AFFIRMED .

3.
   Citation 1, i tem
2, is amended to allege a violation of
29 C.F.R.
§   19 26 . 501(b)(13), and as amended the violation of §
19 26 . 501(b)(13) is
AFFIRMED .

4. A penalty of $2, 800 . 00 is ASSESSED for citation 1, i tem 1 , instances “a” and “b” .

5.
   A penalty of $2, 800 . 00 is ASSESSED for citation 1, i tem 2.

S O
ORDERED.

/s/            

WILLIAM S. COLEMAN

Administrative Law
Judge

DATED: September 11, 2017

"

1
Because this matter has been designated for disposition under the Commission’s procedure for “simplified proceedings,” no complaint or answer has been filed. See
29 C.F.R. § 2200.205(a) (providing that “the complaint and answer requirements are suspended” in simplified proceedings). The original citation thus served as the functional equivalent of the Secretary’s complaint, so the motion to amend served to amend the original citation items. Pursuant to a scheduling order, LMS filed a statement of affirmative defenses
dated October 21, 2016. After the Secretary’s amendment to the citation was granted, LMS’s affirmative defenses to the amended citation items were further described at the outset of the hearing. (T. 16, 31).

2
There was no evidence that the telehandler here met the requirements of § 1926.451(c)(2)(iv) or (v), but whether LMS complied with those standards was not put in issue by the Secretary.

3
Imputing Lenz’s knowledge of his own misconduct to LMS is consistent with Commission precedent and the precedent of the two circuit courts of appeal to which judicial review may be sought here pursuant to 29 U.S.C. § 660(a) (i.e., either the D.C. Circuit or the Second Circuit). See
N. Y.
State Elec. & Gas Corp.
v. Sec’y of Labor , 88 F.3d 98, 107
(2d Cir. 1996)
(discussing the analytic framework that some circuit courts of appeal apply on the “employer knowledge” element of the Secretary’s burden of proof where the alleged violative conduct is that of a supervisor). Imputation of Lenz’s knowledge of his own misconduct to LMS would be appropriate even if the analytic framework adopted by some other circuit courts of appeal were operative here. See, e.g.,
W.G. Yates & Sons Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n,
459 F.3d 604, 609
n. 8
(5th Cir.
2006)
(holding that where a supervisor has failed to comply with a safety standard, “employer knowledge must be established, not vicariously through the violator’s knowledge, but by either the employer’s actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards]”);
accord
Comtran Grp., Inc. v. Department of Labor,
722 F.3d 1304
(11th
Cir. 2013). Here, as discussed
infra
in connection with the defense of unpreventable employee misconduct, on the record as a whole, the Secretary would have met his burden to establish employer knowledge of the supervisory misconduct by virtue of LMS having maintained an inadequate safety program. Cf. Spirit Aerosystems, Inc. , 25 BNA OSHC 1093, 1095 (No. 10-1697, 2014)
(deciding
that “[u]nless
…
evidence clearly preponderates against complainant, the Judge must either deny [a
FRCP
Rule 52] motion or defer disposition until the conclusion of respondent’s case”)
(citing
Morgan & Culpepper, Inc. , 5 BNA OSHC 1123, 1124-25 (No. 9850, 1977),
aff’d in relevant part , 676 F.2d 1065 (5th Cir. 1982)).

4
The
Company Safety Plan established a
blanket exception
to the use of PFAS during the
spreading of roof trusses
based upon a predetermination that use of PFAS during that operation would create a greater hazard under all circumstances . ( See
F indings of
F act ¶¶ 19–20 ). The standard at § 1926.501(b)(13) allows an employer to make a site-specific determination that a certain activity would create a greater hazard, but it does not allow an employer to predetermine that the use of conventional fall protection would create a greater hazard for a certain activity in all residential construction environments. See
§ 1926.502(k) (providing that where use of conventional fall protection systems in residential construction is infeasible or would create a greater hazard, the employer must create a fall protection plan “ developed specifically for the site where
the …

residential construction work
is being performed and the plan must be
maintained up to date ”) . Nevertheless, since LMS is not claiming the benefit of this exception to providing conventional fall protection that is otherwise required by § 1926.501(b)(13), this deficiency in the Company Safety Plan does not bear directly on the adequacy of LMS’s general work rule calling for 100% use of PFAS during installation of roof trusses.

5
The parties stipulated that the roof in question was a “steep roof” as defined in subpart M
at §1926.500(b) . (Stip. No.
9 ). If LMS had been utilizing
a
fall protection system that had been
compliant with subparagraph (11) of § 1926.501(b), LMS would have been deemed to have been com pliant with § 1926.501(b)(13).
See
Safety Standards for Fall Protection in the Construction Industry ,
supra , 59 Fed. Reg. at 40693 (noting that
as to compliance with subparagraph (b)(13),
“if another provision in paragraph (b) allows an alternative fall protection measure, such as covers over holes, those alternatives measures are also acceptable and do not need to be documented in a fall protection plan in order to be used”).

6 Absent from this
defin ition of
“infeasible” is
the concept of
“economic infeasibility . ”
Cf.
Dun-Par Eng ineered
Form Co. , 12 BNA OSHC 1962, 1986-87 (No. 82-928, 1986) (recognizing economic factors in rejecting infeasibility defense because employer had not shown that the costs were unreasonable in light of the protection afforded and had not shown what effect the added costs would have on its contract or on its business as a whole). The preamble to subpart M
expressly states that
“infeasibility”
of compliance
within subpart M does not encompass
claims of
“economic infeasibility.”

Safety Standards for Fall Protection in the Construction Industry ,
supra ,
59 Fed. Reg.
at
406 85 (stating that OSHA “does not consider ‘economic infeasibility’ to be a basis for failing to provide conventional fall protection for employees … performing residential construction work,” and that OSHA “has consistently maintained, and the record for this rulemaking shows, that the industry can either absorb the costs of compliance with revised subpart M or pass those costs along to its customers”).

In any event, LMS’s position here appears to be that providing fall protection was technologically impossible, not that compliance may have been technologically possible, but nonetheless economically infeasible. But even if LMS had intended to assert “economic infeasibility” of compliance, and assuming that such a defense is cognizable against a violation of § 1926.501(b)(13), LMS failed to present sufficient evidence to prove that defense under
Dun-Par .