Cooper/T. Smith Corporation d/b/a Blakeley Boatworks, Inc.

Plain-English summary

A Blakeley Boatworks supervisor and fitter replaced part of a ladder inside a barge tank while working more than five feet above the floor without fall protection. The supervisor fell eight to nine feet and was hospitalized with multiple serious injuries. The parties agreed that OSHA proved the serious violation, leaving only Blakeley's unpreventable employee misconduct defense. The Commission found no documented evidence that the company had enforced safety rules before the accident, even though its progressive policy required oral warnings to be recorded. After the accident, the fitter received only an undocumented reprimand and was soon promoted, while the injured supervisor had not been disciplined eight months later. The Commission reversed the judge, affirmed the violation of 29 C.F.R. § 1915.77(c), and assessed the proposed $4,900 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.77(c)
• Outcome: The serious shipyard fall-protection citation and $4,900 penalty were affirmed.
• Key point: An unpreventable misconduct defense requires specific proof that safety rules were consistently enforced before the violation and that discovered misconduct was disciplined under the employer's own policy.

Full text (OSHRC public release)

Cooper/T. Smith Corporation d/b/a Blakeley Boatworks, Inc. OSHRC Docket No. 16-1533

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR ,

Complainant,

v.

COOPER/T. SMITH CORPORATION D/B/A BLAKELEY BOATWORKS, INC.,

Respondent.

OSHRC Docket No. 16-1533

ON BRIEFS:

Brian A.
Broecker , Attorney;
Charles F. James , Counsel for Appellate Litigation;
Ann S. Rosenthal , Associate Solicitor;
Nicholas C.
Geale ,
Acting
Solicitor; U.S. Department of Labor, Washington, D.C.

For the Complainant

Scott D. Stevens,
Weathers Bolt ;
Starnes Davis
Florie
LLP ,
Mobile ,
AL

For the Respondent

DECISION

Before: SULLIVAN , Chairman; ATTWOOD and
LAIHOW , Commissioners.

BY THE COMMISSION:

Cooper/T. Smith Corporation d/b/a Blakeley
Boatworks , Inc.
(Blakeley)
repairs ships at its shipyard in Mobile, Alabama. OSHA issued Blakeley a
single - item
citation following an accident
involving one of its employee s
working
on a barge. The citation alleges a serious violation of 29 C.F.R. § 1915.77(c) for Blakeley’s failure to ensure employees were using fall protection while exposed to a fall hazard of
more than 5 feet. 1 The Secretary proposed a penalty of $4,900.

Because t he parties stipulated that the Secretary established his prima facie case , 2
the only issue before Administrative Law Judge John B. Gatto was Blakeley’s affirmative defense of unpreventable employee misconduct (UEM). After a hearing, the judge found that Blakeley had established the defense and vacated the citation. For the reasons discussed below, we reverse the judge’s decision and affirm the citation.

BACKGROUND

On June 18, 2016, two Blakeley employees—a shipyard supervisor and
an employee described as a “fitter” —were cutting out and replacing the top five feet of an access ladder
while standing
in a barge holding tank. The fitter
had
one foot on the access ladder and one foot on the “angle of the barge.” The supervisor was standing on a 4x4
inch
board
running
above
the bottom of the holding tank . Both the s upervisor and
the fitter
were working more than five feet
above the floor of the tank
and were not using fall protection. While cutting and replacing the access ladder, the supervisor fell eight to nine feet to the floor of the tank and was hospitalized with multiple serious injuries.

DISCUSSION

The only issue
before us
is whether Blakeley established the affirmative defense of UEM. To
establish the
defense, “the employer [must] show that it
(1)   created a work rule to prevent the violation at issue; (2)   adequately communicated that rule to its employees; (3)   took all reasonable steps to discover noncompliance; and (4)   enforced the rule against employees when violations were discovered.” 3
ComTran
Grp., Inc. v. U.S. Dep’t of Labor , 722 F.3d 1304, 1308 (11th Cir.
2013) (citing
N.Y. State Elec. & Gas Corp. v. Sec’y of Labor , 88 F.3d 98, 106 (2d Cir. 1996)). The only element of this defense
that
the Secretary disputes on review
is
the fourth element— whether Blakeley
established
that it effectively enforced its
work
rules when violations were discovered. ComTran , 722 F.3d at 1308;
Precast Servs., Inc. , 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995)
(“Adequate enforcement is a critical element of the [UEM] defense.”),
aff’d , 106 F.3d 401 (6th Cir. 1997) (unpublished).

To satisfy this burden, the employer must “present specific evidence concerning the manner in which it enforces its
[work]
rules,”
Stuttgart Mach. Works, Inc. , 9 BNA OSHC 1366, 1369 (No. 77-3021, 1981), including “evidence of having a disciplinary program that was effectively administered when work rule violations occurred,”
GEM Indus., Inc. , 17 BNA OSHC 1861, 1863 (No. 93-1122, 1996),
aff’d per
curiam , 149 F.3d 1183 (6th Cir. 1998) (unpublished). The evidence must also include proof that the employer uniformly and effectively enforce d
its
work
rules prior to the misconduct. See Daniel Int’l Co. v. OSHRC , 683 F.2d 361, 364 (11th Cir. 1982) (work rule must be “uniformly and effectively communicated and enforced”);
Precast Servs. , 17 BNA OSHC at 1456 (employer failed to establish effective enforcement of work rule because “company introduced no evidence that prior to [the misconduct] it had subjected an employee to termination, suspension, docked pay, or even a written reprimand or
[oral]
warning for failure to comply with a work rule”).

On review, the Secretary argues that the judge erred in
concluding
that Blakeley effectively enforced its work rules when violations were discovered. In reaching
his
conclusion,
t he judge credit ed
the company with having a progressive disciplinary policy
and
believed Blakeley’s assertion that
its
lack of
disciplinary records
for the period prior to the accident
was
due to
a
lack of
violations. The judge also found persuasive the testimony from Blakeley’s safety director that there had been no prior accidents due to the failure to use fall protection, as corroborated by the absence of any fall protection-related injuries on Blakeley’s injury/illness logs for 2015 and 2016. Finally, t he judge excused Blakeley’s failures to discipline the supervisor
involved in the accident
and document
the fitter ’s
or al discipline because it was undisputed that
the fitter
received a n
or al reprimand ,
and
he found that
it
was
reasonable for the company to wait to discipline the supervisor until he recovered
from his injuries
and was released to full duty.

We
find
that the record does not support
the
judge ’s
conclusion s . First,
there is no evidence in the record that ,
prior to the inspection ,
Blakeley had ever used its progressive disciplinary policy to discipline employees for safety violations .
As proof of
its
effective enforcement, Blakeley relies on ten employee disciplinary records from 2016 , none of which—as the judge correctly found—are relevant
here . 4 All but one of these records were issued after the June 18, 2016
accident , 5
and t hat record reflects written discipline for a non-safety issue
(“carelessly burning on top of a newly laid down geogrid mat thus damaging it[s] sole purpose”) .

T here is no other written evidence of disciplinary action taken before the supervisor’s misconduct. See Daniel Int’l Co. , 683 F.2d at 364 (employer must prove it uniformly and effectively enforced its work rules);
P.
Gioi o so
& Sons, Inc. v. OSHRC , 115 F.3d 100, 110 (1st Cir. 1997) (employer that “provided no evidence of unscheduled safety audits or mandatory safety checklists, and no documentation that it ever executed its . . . disciplinary policy” failed to establish effective enforcement of its safety program).

Contrary to the judge’s finding, t his lack of documentary evidence
is not overcome by Blakeley’s claim that none of its
employees failed to use fall protection before
th e accident . 6
Blakeley relies on
testimony from the safety direct or
and
the fitter , which the judge found persuasive, that there were no fall protection violations between the time the safety director was hired in January 2016 and the misconduct. 7
B ut
the company
provide s
no
explanation
for
why —even though the company provided all of its disciplinary records for the six months before the misconduct— there is no
documentary
evidence that Blakeley
enforced
any
of it safety-related work rules
before that incident .

See
Precast Servs. , 17 BNA OSHC at 1456 (finding ineffective enforcement due to employer’s failure to adduce evidence that it disciplined employees for
any
safety rule violations prior to the job at which the misconduct occurred) ;
see also
Am. Eng’g & Dev. Corp. , 23 BNA OSHC 2093, 2097 (No. 10-0359, 2012) (considering disciplinary actions taken in response to violations of both citation-related and other
work
rules);
Thomas Indus. Coatings, Inc. , 23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012) (same);
Rawson Contractors Inc. , 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003) (finding employer’s failure to impose discipline for “minor” violations discovered by an outside consultant defeated UEM claim for supervisor’s more serious misconduct);
Jensen Constr. Co. , 7 BNA OSHC 1477, 1479 n.5 (No. 76-1538, 1979) (finding employer’s claim that it enforced its safety program was undermined by
other instances of a failure to protect employees from the relevant hazard even though those other instances were beyond the scope of the citation) .

Second,
Blakeley cannot claim that there were no safety violations
at all
prior to the misconduct. Indeed, t he record shows
that
unspecified
safety
infractions
occur red
at the worksite
prior to the accident
and
that
those
infractions
were met with
or al
reprimands . 8
I t
is the “rare case , ”
however,
where
an employer can establish
effective enforcement
on the basis of
oral reprimands alone absent proof that the employer “has a long, near-unblemished safety and health history, despite frequent opportunity for violations.” Stark Excavating, Inc. , 24 BNA OSHC 2215, 2221 (No. 09-0004, 2014) (consolidated) (quoting
GEM Indus. , 17 BNA OSHC at 1864)),
aff’d , 811 F.3d 922 (7th Cir. 2016);
Precast Servs. , 17 BNA OSHC at 1456 (pre-inspection
or al warnings alone insufficient to establish effective enforcement); cf.
Falcon Steel Co. , 16 BNA OSHC 1179, 1193-94 (No. 89-2883, 1993) (consolidated) (enforcement not established because repeated
or al warnings ignored on widespread basis);
Pace Constr. Corp. , 14 BNA OSHC 2216, 2218 (No. 86-758, 1991) (enforcement ineffective because
it
consisted primarily of inconsistently-administered
oral
reprimands). Moreover, the first step of Blakeley’s
own
progressive disciplinary policy is a
“ verbal ”
(i.e., oral)
warning or
“ verbal ”
counseling
that is
also
documented
in the employee’s personnel file. Blakeley’s
evident
failure to document
any of
these pre-accident
oral
reprimands
greatly
“undermine[s] the policy’s progressive nature.” Stark , 24 BNA OSHC at 2221 ( where the disciplinary policy “expressly required written warnings with progressive disciplinary consequences,” employer that issued undocumented oral warnings “undermined the policy’s progressive nature”). We find, therefore, that Blakeley’s reliance on
undocumented
oral
reprimands is insufficient to establish that the company effectively enforced its safety program.

Finally, Blakeley’s
disciplinary
response to the
undisputed
violation here
contradicts its claim s
of effective enforcement .
See
Precast Servs. , 17 BNA OSHC at 1456 (explaining that “Commission precedent does not rule out consideration of
post -inspection discipline, provided that it is viewed in conjunction with pre-inspection discipline”). Blakeley
asserts
that “both [the
supervisor and
the fitter ] were disciplined under Blakeley’s progressive disciplinary policy . ” The evidence , however,
does not support
the company’s
claim.

T he
record
shows
that the safety director
gave
the fitter
a “verbal discretionary,” “wore him out,” and “scolded” him,
but
it also shows that the safety director
did not document
this
or al discipline in
the fitter ’s personnel file as the company’s
progressive
disciplinary
policy requires. 9
See Stark , 24 BNA OSHC at 2221. This lack of formal
discipline is
made
even more problematic
by the fact that
Blakeley promoted
the fitter
to a supervisory position less than
three weeks after
the fitter
violated the company’s fall protection rule . As for the supervisor,
the record shows
Blakeley had yet to discipline him as of the date of the hearing, which was held eight months after his misconduct.
Blakeley asserts that it fully intended to discipline the supervisor as soon as he was medically released from light duty to full duty and that
the company’s
“first concern with [the supervisor] was that he
recover
physically, mentally, and emotionally.” The judge accepted
these
reasons for delaying the supervisor’s discipline considering “the particular facts of this case” and that the supervisor’s “injuries were severe.”

While
we agree that
Blakeley’s concern
in this regard
is
understandable, in cases where the Commission has excused an employer for delaying or forgoing discipline following an accident, the employer had
documented
evidence that it had disciplined employees in the past—evidence not present in this case. 10
See Am. E n g’g , 23 BNA OSHC at 2097 (where employer established that it had extensive pre-inspection enforcement efforts, a single instance of delayed discipline did not establish ineffective enforcement);
Thomas Indus. , 23 BNA OSHC at 2088-89 (where employer had established that it had disciplined employees for safety violations in the past, employer’s decision to forgo discipline in one instance did not establish ineffective enforcement). Accordingly, we find Blakeley’s failure to discipline the supervisor and
the fitter
in accordance with its
own
progressive disciplinary policy is further evidence of
the company’s
ineffective enforcement. 11

For all these reasons , w e
conclude that Blakeley failed to establish its UEM defense and therefore,
reverse the judge’s decision, affirm the citation as serious, and assess the proposed penalty of $4,900. 12

SO
ORDERED.

/s/               

James J. Sullivan, Jr.

Chairman         

/s/               

Cynthia L. Attwood

Commissioner               

/s/               

Amanda Wood Laihow

Dated: April 1, 2020                Commissioner

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-31 0 4

ACTING SECRETARY OF LABOR , 13

Complainant,

v.

OSHRC Dock et No. 16-1533

COOPER/T. SMITH CORPORATION d/b/a BLAKELEY BOATWORKS, INC.

Respondent.

DECISION AND ORDER

COUNSEL:

Jaslyn
W. Johnson ,
Karen E. Mock,
Attorney s ,
Office of the Solicitor,
U.S. Department of Labor,
Atlanta, GA , for Complainant.

Scott D. Stevens, Weathers Bolt,
Attorneys, S tarnes Davis
Florie
LLP , Mobile, AL ,
for Respondent.

JUDGE:
John B. Gatto .

I. INTRODUCTION

In this enforcement proceeding,
Cooper/T. Smith Corporation d/b/a Blakeley
Boatworks , Inc.
(Blakeley) was issued one citation under the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 651 et seq., by the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) alleging a “serious” violation 14
of 29 C.F.R. § 1915.77(c), relating to working surfaces requirements in ship repairing and shipbuilding operations, with a
proposed penalty of $4,900.00. 15 After Blakeley contested the citation,
the Secretary
filed a formal complaint 16
with the Commission
seeking an order affirming the citation
and proposed penalty. There is no dispute that jurisdiction of this
action is conferred upon the Commission by section 10(c) of the Act , 29 U.S.C. § 659(c) , and
that
Blakeley
is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act,
29 U.S.C. § 652(5) .
(Stip. ¶¶
1, 2).

A
bench trial was subsequently held in Mobile, Alabama ,
under the Commission’s Simplified Proceedings. 17 Pursuant to Commission Rules 90(a) a nd 209(f), 18
after carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order, which
constitutes its final disposition of the proceedings under section 12(j) of the Act.
29 U.S.C. § 661(j) . If any finding is in truth a conclusion of law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so. The Court holds that for the reasons indicated  infra ,
the c itation
is
VACATED
with
no penalty assessment .

II. BACKGROUND

Blakeley
is an employer engaged in ship repair activities
with
approximately 35 employees.
( Pre trial
Order, ¶ 2(c) ;
see also
Tr.
32 ) . The citation was issued as a result of an accident
on the
Crimson Clove Barge
at
Blakeley ’s
shipyard
in Mobile, Alabama . Many of the facts in this case are
undisputed, including the facts of the accident itself. On June 18, 2016,
[redacted], a Blakeley
s hipyard
s upervisor ,
and
Blakeley
employee Keith Sullivan ,
were cutting out and replacing the top five feet of an access ladder in a barge holding tank. ( Stip.
¶ 3). Sullivan was standing in the barge holding tank with one foot on the access ladder and one foot on the angle of the barge. ( Stip.
¶ 4). [redacted]
was standing in the barge holding tank on a 4x4 piece of wood that was already in the barge holding tank. ( Stip.
¶ 5). Blakeley
e mployee Dana Bearden was positioned above and outside the barge holding tank, passing tools to
[redacted]
and Sullivan as needed. ( Stip.
¶ 6). Blakeley employee Kenny Bennett had cut the materials needed to erect the temporary scaffold and placed them next to the barge holding tank prior to the start of work, but both
[redacted]
and Sullivan failed to use the materials to erect the temporary scaffold. ( Stip.
¶ 9). While cutting and replacing the access ladder,
[redacted]
fell from an elevation of more than 5 feet. ( Stip.
¶ 10). Because of the fall,
[redacted]
was hospitalized with injuries. ( Stip.
¶ 11).

As a
shipyard supervisor,
[redacted]
was responsible for supervising Sullivan, Bearden and Bennett on June 18, 2016. (Stip.
¶
12). [redacted]
had the authority to enforce
Blakeley’s safety and work rules; had the authority to correct employees’ conduct while they were working; and had the authority to issue verbal and written warnings to employees who failed to follow
Blakeley’s safety and work rules.
(Stip.
¶
13). [redacted]
and Sullivan were exposed to a fall hazard when they were working at an elevation of more than 5 feet and were not using fall protection. (Stip.
¶ 7). It was feasible for
[redacted]
and Sullivan to tie off and/or erect a scaffold as means of fall protection. (Stip.
¶ 8).

The parties also stipulated the Secretary can establish his prima facie case of a violation since:

a. The cited standard applied to the work
Blakeley
was performing inside a barge holding tank at its worksite on June 18, 2016.

b. On June 18, 2016,
Blakeley
did not comply with the cited standard when [redacted] and Sullivan were working inside a barge holding tank at a height greater than 5 feet without fall protection.

c. On June 18, 2016, [redacted] knew that he and Sullivan were working inside a barge holding tank at a height greater than 5 feet without fall protection.

d. [redacted]’s knowledge of the violative conditions is imputed to
Blakeley
for purposes of establishing the Secretary’s prima facie case. 19

(Stip.
¶
14). The Court accepts the forgoing stipulations
and also
concurs with the parties’ stipulation that
the violation was appropriately classified as “serious” under the Act and
that
applying the statutory factors under the Act
the proposed penalty of $4,900 was appropriate. (Stip.
¶¶ 16-18;
see also
Tr. 16, 18-19).

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980) . “ To implement its statutory purpose, Congress imposed dual obligations on employers. They must first comply with the
‘ general duty ’
to free the workplace of all recognized hazards. 29 U.S.C.
§ 654(a)(1). They also have a ‘ special duty ’
to comply with all mandatory health and safety standards.
Id.
at § 654(a)(2). ”
ComTran
Grp., Inc. v. U.S. Dep't of Labor , 722 F.3d 1304, 1307
(11th Cir. 2013) . 20
“ The Secretary has rulemaking power and establishes the safety standards; investigates the employers to ensure compliance; and issues citations and assesses monetary penalties for violations. ”
Id.
( citing New York State Elec. & Gas Corp. v. Secretary of Labor , 88 F.3d 98, 103 (2d Cir.1996) ). On the other hand, the
Commission
“serves as a ‘ neutral arbiter ’
between the Secretary and cited employers. ”
Id.
( citing
Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 7
(1985) . Thus,
Congress established an “unusual regulatory structure,” which “separated enforcement and rulemaking powers from adjudicative powers”
and vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.”
Martin v. Occupational Safety and Health Review Comm'n , 499 U.S. 144, 151, 154 (1991) .

A. Violation

The cited standard
mandates
in relevant part
that
“[w] hen employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either scaffolds or a sloping ladder,
meeting the requirements of this subpart, shall be used to afford safe footing, or the employees shall be protected by safety belts and lifelines meeting the requirements of §§1915.159 and 1915.160.”
29 C.F.R. § 19 15.77 (c) . “Under the law of [ the Eleventh Circuit ] ,
the Secretary will make out a prima facie case for the violation of an OSHA standard by showing
(1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and
importantly, (4) that the employer ‘knowingly disregarded’ the Act’s requirements.”
ComTran , 722 F.3d
at
1307 .
See also ,
Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor , 567 F.
App'x
801, 803 (11th Cir. 2014)
( same ) . The parties have stipulated to the Secretary’s prima facie case and agreed the only issue remaining for adjudication is whether Blakeley “has established the
affirmative defense of unpreventable supervisory misconduct.” ( Stip.
¶ 18). Therefore, the Court limits its decision
t o that
issue .

B. Unpreventable o r Unforeseeable Employee Misconduct
Defense

“If the Secretary establishes a prima facie case with respect to all four elements, the employer may then come forward and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.”
Eller-Ito , 567 F.
App'x
at 803
( citing
ComTran , 722 F.3d
at 1308 )
(same) .
The employer bears the burden of establishing an affirmative defense by a preponderance of the evidence.
Faragher v Boca Raton , 524 U.S. 775, 807 (1998);
Burlington Industries, Inc. v.
Ellerth , 524 U.S. 742, 765 (1998).

In the Eleventh Circuit,
t he
affirmative defense
of
unpreventable or unforeseeable employee misconduct
“ requires the employer to show that it: (1) created a work rule 21
to prevent the violation at issue; (2) adequately communicated that rule to its employees; (3) took all reasonable steps to discover noncompliance; and (4) enforced the rule against employees when violations were discovered.”
ComTran , 722 F.3d
at
1307
( citing
New York State Elec , 88 F.3d
at
10 6).
See also ,
Eller-Ito , 567 F.
App'x
at 803 (where the Eleventh Circuit referred to this affirmative defense as “preventable employee misconduct”). However, a s
the
Eleventh Circuit has held, “noncompliance by a supervisor suggests lax enforcement of a safety rule[.]”
Daniel Int’l Co. v.
Occupational Safety and Health Review Comm'n , 683 F.2d 361, 36 5
(11th
Cir.
1982) ( citing
H. B. Zachry Co. v.
Occupational Safety and Health Review Comm'n , 638 F.2d 812, 81 9
(5th Cir.
1981);
Floyd S. Pike Electrical Contractor, Inc. v.
Occupational Safety and Health Review Comm'n , 576 F.2d 72, 77 (5th Cir. 1978);
National Realty & Construction Co. v.
Occupational Safety and Health Review Comm'n , 489 F.2d 1257, 1267 n.38 (D.C.Cir.1973)).

1. Created Work Rule

As to the first prong, the parties agree
Blakeley
had a safety plan in place at the time of the incident on June 18, 2016.
( Stip.
¶ 15). However, a ccording to the Secretary, Blakeley’s “work rules and maintenance thereof, leaves room for confusion and doubt,” and therefore, Blakeley “failed to establish that it has a work rule, which is explicit and whose scope is clearly understood.” ( Compl’t’s
Br. 5). According to t he Secretary ,
Blakeley “provided testimony and produced document evidence indicating that at various times it had different fall protection requirements.” ( Id. ) ( citing
Tr. at 69-70). However, properly
framed, this argument is an attack on the adequacy of Blakeley’s communication of it work rule and will therefore be addressed in Section III(B)(2),
infra .

In
Beta Construction Company , the Commission held that “[ i ]n order to be considered effective, an employer’s work rule must be clear enough to eliminate employee exposure to the hazard covered by the standard” or as it has
also
said ,
must be “designed to prevent the cited violation.”
Beta Constr. Co. , 16 BNA OSHC 1435, 1445 (No. 91-102, 1993) ( citations omitted ).
“Generally speaking, the
work rule must be sufficiently precise to implement the requirements of the standard or be functionally equivalent to it.”
Id.
( citations omitted ).

Here,
Blakeley ’s
Fall
Protection Program
required fall protection
“ at levels of
4 feet or higher , when an employee is not enclosed by handrails or other fall restraint apparatus. ”
(Ex. R-1)
(emphasis in original) . Baugh
also
testified that at the time of the accident Blakeley had established a rule whereby employees were to use fall protection when
working above
5
feet. (Tr.
39).

His testimony was
supported by materials from
3
training sessions before the accident, including one only
10
days before the accident, that specifically show a
5-foot
rule was in effect. ( Ex. R-
2,
Ex. R- 4,
Ex. R- 11).
The Court concludes this work rule
met the Commission’s standard
since
it was
clear enough to eliminate employee exposure to the hazard covered by the standard . The refore, the
Court concludes Blakeley met the first prong of its preventab le employee misconduct defense.

2. Adequately Communicated Rule

As to the second prong,
as indicated
supra , the
Secretary
asserts
Blakeley’s “work rules and maintenance thereof, leaves room for confusion and doubt,” and therefore, Blakeley “failed to establish that it has a work rule, which is explicit and whose scope is clearly understood.” ( Compl’t’s
Br. 5). Thus, the Secretary argues
Blakeley “provided testimony and produced document evidence indicating that at various times it had different fall protection requirements.” ( Id. ) ( citing
Tr. at 69-70).

The Secretary
also
argues Blakeley “kept these inconsistent fall protection requirements in its safety manual, which employees had access to” and “failed to differentiate the expired fall protection requirements from the current fall protection requirements. ( Id. ) The Court finds no merit in these arguments,
in particular since
at trial, the Secretary stipulated he “does not
dispute that
[ Blakeley ]
communicated its work order requiring the use of fall protection." (Tr. 27).

Baugh
also
testified at trial that when he took over the job of safety
director
he was concerned with the company’s fall protection policy that included an
8-foot
rule, which Baugh knew was incorrect. (Tr. 69-70). Therefore Baugh “highlighted through it, scratched through it with a pen, and put "five." (Tr. 70). The
5-foot
rule was in effect at the time of the accident. (Tr. 39). After the accident, Baugh again changed the policy by scratching through “five” and replacing it with “four,” even though OSHA only requires
5
feet. (Tr. 71-72; see also Ex. R-1). As Baugh explained, “I want to go to
4
feet, so that we will just be, you know, doubly safe at what we do. That's why -- and I did that.” (Tr. 72).

While it is true Blakeley kept the old version of its fall protection policy in its safety manual, Baugh testified the older version was not kept with the current version, but rather, was kept in the “very back” of the manual. (Tr. 73). As Baugh explained, “I wanted to show a progression. I wanted to be -- a progression of our safety program. I wanted to be transparent as possible, that we were
making an effort
to educate and enforce our manpower.” ( Id. ) Further,
each of
Blakeley's
employees that testified on the issue stated
that they had never been taught an
8-foot
rule. (Tr. 145, 172).
The Court credits this testimony, which it finds persuasive. In contrast, the Secretary failed to elicit any testimony that the
work
rule was confusing or otherwise unclear to any employee.

T he Secretary
also
argues Blakeley did not adequately communicate its alleged work rules
since, according to
the Secretary ,
Blakeley “adduced sign-in sheets from safety meetings ”
at t rial and “ the majority of the sign-in sheets fail to reflect specifics regarding the content of the training.”
( Compl’t’s
Br. 5) ( citing
Ex. R-2 – Ex. R-17) . According to
the Secretary , 8 of the 10
sign-in sheets produced
“ do not have training materials attached”
and
“ simply indicate what topic was discussed.” ( Id.
at 5 - 6) ( citing
Ex. R-3, Ex. R-8 to R-10, Ex. R-13 to R-15, Ex. R-17). T he Secretary points to Baugh’s testimony
regarding
Blakeley ’s Exhibit R-3, which is the sign-in sheet for a “Safety Gang Box Meeting” held on October 6, 2015. When
Baugh
was
asked
at trial
what the topic of this meeting
was ,
he
responded ,
“fall protection.” (Tr. 48). Therefore, according to the Secretary,
Blakeley
“ failed to show that it specifically communicated its alleged work rule requiring fall protection at
[5]
feet or above. ” ( Id. ) The Court finds no merit in the Secretary’s argument s.

The Secretary relies on the language from two Commission judges,
Dewitt Excavating, Inc. , 23 BNA OSHC 1834, 1838 (No. 10-1515, 2011)
(ALJ), and the judge’s decision appended at the end 22
of the Commission’s opinion in
Quinlan Enterprises , 24 BNA OSHC 1154 (No. 12-1698, 2013) . Although they may be persuasive,
unreviewed administrative law judge decision s
do not constitute binding precedent.
KS Energy Serv. Inc. , 23 BNA
OSHC 1483 (No. 09-1272, 2011);
Leone Constr. Co. , 3 BNA OSHC 1979, 1981 (No. 4090, 1976). The Court does not find
Dewitt
or
Quinlan
persuasive since both are distinguishable from the present case.

In
Dewitt , Judge
Welsch
found the “ tool box
talks fail to establish an adequate training program.

Although its principal business, the sheets identify only seven
tool box
talks over a four-year period which involved excavation training. The documents do not describe the specific information read to the employees. Also, the sign-in sheets do not show any training for the employees involved in this case ….”
Dewitt Excavating , 23 BNA OSHC at 1838 . In
Quinlan , Judge Calhoun
found
Quinlan ha d
not adequately communicated its work rules regarding fall protection to its employees
for multiple reasons, not simply because they “ fail [ed]
to reflect specifics regarding the content of the training ,” as the Secretary asserts, but also because
Quinlan
p rovided minimal evidence regarding the communication of its work rules , adduced
no specifics as to the training , and “ inconsistent with Mr. Quinlan's testimony that sign in sheets reflected safety training, Pacheco testified that they were used to show receipt of pay checks .”

Here, as
Blakeley
argues, and the Court agrees, “e ach employee, including
[redacted] , also testified that they knew fall
protection was required on the job at issue. ” ( Resp’t’s
Br. 3
( citing
Tr.
134, 154, 166).

I t is
also
undisputed that
[redacted]
had specific instructions from Baugh on this job to build a scaffold
with guard rails or wear a harness to serve as fall protection.
( Tr. 78).

[redacted]
also
testified had met with Baugh and received instructions on the type of scaffolding
needed and the alternative option of wearing harnesses.
( Tr. 131-32).
Blakeley ’s
employees
also
took steps to follow
the work rule
by cutting the parts to build the
scaffold. (Tr. 132-33). [redacted]
admits that he knew that he was supposed to use fall
protection for this job. (Tr. 134).

The record also shows [redacted]
was
trained on the
5-foot
fall protection rule
as recently as
10
days before the accident. Blakeley’s Exhibit 11 is a company record of a safety meeting held on June 8, 2016, and in subpart D, states “ When employees are exposed to
unguarded edges of decks, platforms,
flats, and similar flat surfaces, more
than five feet above the solid surface,
the edges shall be guarded by adequate
guardrails meeting the requirements of
1915.71(j).”
(Ex.
R -11). On bates stamp page 142 of that exhibit, it again states “ Guardrails (including toe
boards and top rails) shall be installed
on all open ends and ends of platforms
more than five feet above the ground, or
floor, or other platform. ”
(Id. ) [redacted] attended that safety meeting held on June 8, 2016. (Tr. 63). Further, all employees were required to
acknowledge that they had
received a
copy of the handbook that included the disciplinary policy . (Tr.). The record reflects [redacted] signed an
acknowledgment that he has read and understood the
employee handbook . (Ex. R-19).

Therefore, the Court concludes not only did Blakeley have a work rule in place to protect against this type of accident, it provided specific instructions to use fall protection on this specific job that would have prevented this accident. Thus, the Court concludes Blakeley
adequately communicated th e
work
rule to its employees . Therefore, the Court concludes
Blakeley
has met the second prong of its affirmative
defense .

3. Took All Reasonable Steps to Discover Noncompliance

Baugh
testified, “ We do visual walk-arounds all day.
I walk a cycle around the shipyard
repeatedly monitoring. ”
(Tr. 79-80). He also testified Tim Sheppard, head of
corporate
safety for the company , helped monitor, as well as the
shipyard
superintendents . (Tr. 50, 80). T he lead men
were taught to monitor. (Tr. 80). Further, t he shipyard manager himself
monitor ed .
( Id. ) As Baugh explained, “ We try to police each
other. ” ( Id. ) The Court credits this testimony, which was undisputed. The Court concludes
Blakeley
took al l
reasonable st eps to
d iscover
n oncompliance
and has therefore met the third prong of its affirmative
defense .

4. Effective E nforce ment of Work R ule

Blakeley
had a corrective action plan, which was included in its employee handbook, and presented copies of employee counseling notices issued to employees for safety infraction. (Ex. R-18, Ex. R-21;
see also
Tr. 83). Although admitted into the record, the Court does not find the counseling notices relevant in determining whether
Blakeley
effectively enforced the work rule
before
the accident, since they were all dated
after
the accident, except one, and that one was a “warning for “burning on top of a newly laid down geogrid mat.” ( Id. ) However, it is not dispositive that
Blakeley
did not have disciplinary records related to fall protection prior to the accident, since it is only required to show it
effectively enforced the
work
rule
“ when violations
were detected . ” Am. Eng'g & Dev. Corp. , 23 BNA
OSHC
2093,
2096
( No. 10-0359 , 2012) .

Baugh credibly testified he
taught the employees
and supervision and lead men that
Blakeley ha d
a disciplinary program.
“ I
communicated that disciplinary program to
the employees in our meetings, once I
communicated that to them, I went over
the
verbals . I went over the steps of
the policy. And then after that, as I
would see them on the shipyard, I would
remind them of the disciplinary policies
that we have and how we would enforce
them for noncompliance.

And I did that
often through meetings, you know. ” (Tr. 82). Baugh also testified that prior to the accident there had never been
any accidents due to failure to use fall
protection . (Tr. 81). The Secretary did not rebut that testimony. Blakeley
also presented copies of its logs of work-related injuries and illnesses for 2015 and 2016, none of which report injuries implicating
fall
protection . (Ex. R-22). Since the Court concluded
Blakeley
took al l
reasonable st eps to
d iscover
n oncompliance , and there is no evidence any violations of the work rule were detected prior to the accident, the Court would not expect any fall protection related disciplinary record to exist.

Finally, t he Secretary argues that Blakeley did not discipline
[redacted]
or
d ocument the discipline of Sullivan. (Sec ’y 's Br.
9-11).

However, a s
the Commission
observed in
Thomas Industrial Coatings, Inc. , No. 06-1542, 2012 WL 1777086 (OSHRC Feb. 28, 2012),
and noted again in
American Engineering , “ post-inspection discipline alone is not necessarily determinative of the adequacy of an employer's enforcement efforts. ”
Am. Eng'g , 23 BNA
OSHC at 2097.
It is undisputed
Sullivan was given a verbal reprimand after the incident. (Tr. 114-15, 171). As
Blakeley
points out,
Sullivan also witnessed firsthand the potential ramifications of fai ling to use fall protection and
as a result, said that he would never forget it. ( Resp’t’s
Br. 14;
see also
Tr. 171).

At the time of
trial, [redacted]
had not been released from medical
care
and t he evidence
i s clear that
[redacted]
had not been disciplined
at the time of trial
because Blakeley's
first concern
was that [redacted] “recover
physically, mentally, and emotionally. ” ( Tr. 89 , 145 ). However,
Baugh
also testified
that after
[redacted]
recovers and is released to full duty, he would be
disciplined. (Tr. 89). Further, a s the Secretary
acknowledges, [redacted] 's injuries were severe,
consisting of "twelve vertebrae injuries, thoracic fractures, a shattered shoulder blade, a fractured
hip, a fractured pelvis, a herniated disc, and three compression fractures." (Sec ’ y's Br., p. 3;
see also
Tr. 139-40).

Given the particular facts of this case, the Court does not find the company’s decision to delay the discipline of [redacted] and to impose a verbal warning to
Sullivan
is indicative of a lax safety program. In totality, based upon the evidence presented, the Court concludes
Blakeley
has met the fourth prong of its affirmative
defense . Accordingly,

I II . ORDER

IT IS HEREBY ORDERED THAT
the c itation
is
VACATED
with
no penalty assessment.

SO
ORDERED .

/s/ John B. Gatto   

John B. Gatto

Administrative Law Judge 

Dated:
March 31, 2017

Atlanta, GA

"

1
The cited shipyard provision, as relevant here, states:

When employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either scaffolds or a sloping
ladder . . . shall be used to afford safe footing, or the employees shall be protected by safety belts and
lifelines . . . .

2
To establish a prima facie case, the Secretary must show “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 cited employer either knew or could have known of the condition with the exercise of reasonable diligence.” Astra Pharma. Prods. , 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part , 681 F.2d 169 (1st Cir. 1982)

3
This case arose in
Alabama, which is in the
Eleventh
Circuit. See
29 U.S.C. § 660(a)
(employers may seek review
in
the
circuit in which
the
violation occurred,
the
circuit in which
the
employer’s principal office is located, or
in
the District of Columbia Circuit);
29 U.S.C. § 660(b)
(Secretary may seek review in
the
circuit
where
the violation occurred, or
in
the
circuit in which the
employer’s principal office is located). In general, “[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission
has . . . applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted).

The Eleventh Circuit requires the Secretary to prove that a supervisor’s misconduct is foreseeable before the supervisor’s knowledge of that misconduct can be imputed to the employer. ComTran
Grp., Inc. v. U.S. Dep’t
of Labor , 722 F.3d 1304, 1308 (11th Cir. 2013) . Here, Blakeley stipulated to
all of
the elements of the Secretary’s prima facie case, including the imputation of “[the supervisor’s] knowledge of the violative conditions.” This means the company stipulated to imputation of the supervisor’s knowledge of not only the fitter’s failure to use fall protection but also of his own failure to use it.

4
Blakeley had only owned the shipyard for approximately a year and a half as of the time of the inspection, but provided no explanation for why it only produced disciplinary notices for the period between January 1, 2016 (approximately six months before the misconduct occurred) and the end of December 2016 (approximately two months after the date of the Complaint).

5
The Secretary argues that this “clustering of safety-related disciplinary actions” following the June 18, 2016 accident indicates that Blakeley did not enforce its rules before that because it is implausible that employees maintained perfect compliance in the first five and a half months of the year, then suddenly stopped complying with several work rules during a 10-week period that coincided with the OSHA inspection. We decline to draw any negative inferences from Blakeley’s pattern of discipline because relying on such inferences could discourage employers in the future from making efforts to improve safety enforcement after an incident or inspection occurs. Cf.
Pepperidge Farm, Inc. , 17 BNA OSHC 1993, 2006
(No. 89-265, 1997) (citing
Gen .
Motors Corp., GM Parts Div. , 11 BNA OSHC 2062, 2065-66 (No. 78-1443, 1984),
aff ’ d , 764 F.2d 32 (1st Cir. 1985);
Cotter & Co. v. OSHRC , 598 F.2d 911, 914-15 (5th Cir. 1979);
Diebold, Inc. v. Marshall , 585 F.2d 1327, 1337-38 (6th Cir. 1978))
(“[T]he Commission and the courts have been reluctant to rely solely on voluntary safety efforts by an employer to find that the employer recognized a hazardous condition.”).

6
The judge erred by essentially placing the burden on the
Secretary
to prove the occurrence of prior violations instead of requiring Blakeley, as part of its burden to establish the UEM defense, to prove that there had, in fact, been no prior violations of its work rules. See, e.g. ,
ComTran , 722 F.3d at 1308. Blakeley also attempts the same by arguing that it is the Secretary who has failed to prove that there were pre-misconduct fall protection violations that went undisciplined by Blakeley. Although, as noted above, the Eleventh Circuit requires the Secretary to prove that a supervisor’s misconduct is foreseeable before the supervisor’s knowledge of that misconduct can be imputed to the employer,
see
id.
at 1316, Blakeley stipulated here to all elements of the Secretary’s prima facie case, including the imputation of the supervisor’s “knowledge of the violative conditions.” Accordingly, the company relieved the Secretary of his burden in the Eleventh Circuit to prove that the supervisor’s conduct was foreseeable. See id.
at
1308, 1316.

7
Both the judge and Blakeley rely on the absence of evidence of any prior accidents due to the failure to use fall protection, as corroborated by the company’s
work-related injury logs for 2015 and 2016, to
show there were no
fall protection violations
during that time. This position lacks merit, however, given that “[a]
favorable safety record only indicates that injuries have not occurred, not the absence of violations,” and “can be a matter of good fortune rather than an indication of an effectively enforced safety program.” Stuttgart , 9 BNA OSHC at 1369.

8
At the hearing,
Blakeley’s safety director testified that he generally enforced work rules orally. The fitter confirmed that the safety director “correct[ed] people on safety issues when he was walking around the yard before the accident.” And the supervisor agreed that the safety director had “corrected” his work without issuing formal discipline.

9
Blakeley explained that the fitter did not receive additional discipline because he had expressed that “seeing a man fall was bad enough” and that “he would never forget that.”

10
Blakeley’s decision to delay the supervisor’s discipline for over eight months also reduces the deterrent effect that a progressive disciplinary policy is supposed to provide. See P.
Gioioso , 115 F.3d at 109-10 (“[T]he defense of unpreventable misconduct cannot be sustained unless the employer also proves that it insists upon compliance with the rules and regularly enforces them.”);
but see Stahl Roofing, Inc. , 19 BNA OSHC 2179, 2183 (No. 00-1268, 2003) (consolidated) (finding that record does not support Secretary’s claim of too little documentation of employer’s disciplinary program to demonstrate diligent enforcement when noncomplying employees given reprimands and fined
on afternoon after OSHA inspection ) (citing
Kerns Bros. , 18 BNA OSHC at 2070 (“The evidence indicates that [the employer] disciplined employees on the few occasions when it found them violating safety rules.”)).

11
In light of this conclusion, we need not reach two additional arguments raised by the Secretary on review: (1) whether Blakeley was required to meet a heightened burden in establishing its UEM defense because the supervisor’s involvement in the misconduct is “strong evidence that the employer’s safety program was lax”; and (2) whether, in light of the supervisory misconduct, Blakeley was required to prove that it took “all feasible steps to prevent the accident, including adequate instruction and supervision of [the supervisor].” See Archer-Western Contractors, Ltd. , 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991),
aff’d per
curiam , 978 F.2d 744 (D.C. Cir. 1992) (unpublished).

12
The parties stipulated to the appropriateness of the classification of the violation and the proposed penalty.

13

Pursuant to
Fed.R.Civ.Pro .
25(d), the Acting Secretary of Labor has been substituted for the Secretary of Labor.

14
Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§ 666(a), (b), (c). A “serious” violation is defined in the Act; the other two degrees are not.

15
The Secretary delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act to OSHA.
See
77 FR 3912 (2012) . The Assistant Secretary promulgated the Occupational Safety and Health Standards, otherwise known as the general industry standards,
see
29 C.F.R. Part 1910, and adopted several industry-specific “established Federal standards,”
see
29 C.F.R. §§ 1910.12–.16, which were previously established by federal statute or regulation, 29 U.S.C. § 652(10), including the shipyard standards of 29 C.F.R. Part 1915,
see
29 C.F.R. § 1910.15.
OSHA’s Area Directors
are authorized
to issue citations and proposed penalties to enforce the Act.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a).

16
Attached to the complaint and adopted by reference therein w as
the citation at issue . Commission Rule 30(d) provides that “[s] tatements
in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”
29 C.F.R § 2200.30(d).

17
The Act provides that unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.
See
29 U.S.C. § 661(f). The Commission has adopted Simplified Proceedings, which apply in certain cases ,
s ee
Subpart M of 29 C.F.R. Part 2200 (29 C.F.R.
§§
2200.200 - 2200.211) , where
the “ Judge will receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious or unreliable.” 29
29 C.F.R. §
2200.209(c).

18
29 C.F.R. §§ 2200.90(a) and 2000.209(f).

19
The Court accepts this stipulation, since th is case
involv ed
the violative conduct of both
supervisor
[redacted] and subordinate Sullivan, and under
Quinlan v. Sec'y, U.S. Dep't of Labor , 812 F.3d 832
(11th Cir. 2016) , there is “ little or no
difference between the classic situation in which [ “ imputation is clearly established ” when ]
the supervisor sees the violation by the subordinate and disregards the safety rule
…
and the instant situation in which the supervisor sees the violation and pitches in and works beside the subordinate [.]”
Id. , 812 F.3d at 841.

20
Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). This case arose in Mobile, Alabama, which is in the Eleventh Circuit
where
the company’s principal office is
also
located. In general, where it is highly probable that a Commission decision would be appealed to a
particular circuit , the Commission has applied the precedent of that circuit in deciding the case, “even though it may differ from the Commission’s precedent.”
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). The Court therefore applies the precedent of the Eleventh Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed to.

21
The Commission has
defined a “work rule” as “an employer directive that requires or proscribes certain
conduct, and
is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.”
J. K. Butler Builders, Inc. , 5 BNA OSHC 1075, 1076 (No. 12345, 1977).

22
In
Quinlan , the Commission ’s two-page opinion ends
on 24
BNA OSHC at 1155, and the cited page *11 is an excerpt from Judge Calhoun’s decision, included by Westlaw a fter
the end of the Commission’s opinion.