Superior Electric Company

Plain-English summary

Superior Electric employees used an unguarded catwalk about 10 feet above the floor while completing electrical work in a renovated warehouse. An employee fell while stepping from the catwalk onto a ladder and was injured. The Commission reversed the judge's ruling that Superior lacked knowledge and had proved unpreventable employee misconduct. The foreman knew the unguarded catwalk existed and that employees might use it, so his knowledge was imputed to Superior. The company's safety-belt rule did not prevent the cited violation because the citation required a standard guardrail, and Superior had no guardrail-specific work rule. The violation was repeated because an earlier final citation involved the same standard and fall hazard, and the Commission assessed a $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: A repeated guardrail violation was affirmed, and a $5,000 penalty was assessed.
• Key point: A safety-belt rule does not establish employee misconduct as a defense to a citation alleging that an elevated platform lacked the required guardrail.

Full text (OSHRC public release)

                                  UNITED STATES OF AMERICA
              OCCUPATIONAL SAFETY AND HEALTH REXIEW COMMISSION
                                        One Lafayette Centre
                                  1120 20th Street, N.W.- 9th Floor
                                    Washington, DC 20036-34 19

SECRETARY OF LABOR, l

                                        .




                                        .

                                        .




                 Complainant,           :
                                        .
         v.                             ..      OSHRC Docket No. 91-1597
                                        .

SUPERIOR ELECTRIC COMPANY, :
..
Respondent. :

                                        DECISION

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
At issue is whether on remand Administrative Law Judge (XLJ”) Paul L. Brady properly
vacated a citation item issued to Superior Electric Co. (“Superior” or the ‘?zompany”) alleging a
repeated violation of 29 C.F.R. 5 1926.500(d)( 1)’ for failing to provide standard guardrails on a

‘That standard provides:

   1926.500   Guardrails,   handrails, and covers.

   idj ;; uar d’zng of op en-sidedfloors, platforms, and runways. (1) Every open-sided
   floor or platform 6 feet or more above adjacent floor or ground level shall be
   guarded by a standard railing, or the equivalent, as specified in paragraph (f)(l)(i)
   of this section, on all open sides, except where there is entrance to a ramp, stairway,
   or fixed ladder. The railing shall be provided with a standard toeboard wherever,
   beneath the open sides, persons can pass, or there is moving machinery, or there is
   equipment with which falling materials could create a hazard.

                                                                       1996 OSHRC No. 20

2

platform from which its employees worked We find that the judge erred and affirm a repeated
violation of the cited standard. We assess a $5000 penalty.
Background
Superior was the electrical subcontractor at a warehouse in Columbus, Ohio, that was being
renovated and remodeled for use as corporate offices. After one of its employees, a journeyman
electrician named Bobby Stansberry, stepped off an unguarded catwalk onto a ladder, fell, and was
injured, a compliance officer (“CO”) of the Occupational Safety and Health Administration
(“OSHA”) inspected the accident site. Subsequently, the present citation was issued and the case
went to a hearing before the judge. He found that the cited standard did not apply because-the
catwalk was not a platform, and vacated the citation. On review, the Commission reversed the
judge on this issue and remanded the case to him to resolve the other issues disputed by the parties.
Superior Elec. Co., 16 BNA OSHC 1494, 1993-95 CCH OSHD f[ 30,286 (NO. 91-1597, 1993).
On remand, the judge again vacated the citation, finding that (1) the Secretary of Labor
(“Secretary”) had failed to prove that Superior had knowledge of the violation and (2) Superior
had proven the affmative defense of unpreventable employee misconduct.
Facts
After drywall had been installed, and ceilings had been put up for most of the offices in the
warehouse, the catwalk was installed above the ceiling by the drywall contractor. It provided
access -- after the ceilings were completely installed -- to air conditioning/heating equipment and
electrical junctions located above the ceiling. The approximately 150-foot long catwalk ran the
entire side of the building and was made of 2-inch x 8-inch boards laid side-by-side. Estimates
of the width of the catwalk vary from 18 to 24 inches to three feet. On one side of the catwalk was
a stud wall made of uncovered upright 2-inch x 4-inch studs to which the walls below the ceiling
were attached. The studs were spaced on 16-&h centers, which meant that a person could step
(or fall) between them. The other side of the catwalk had no railing or other guard. Employees
could access the catwalk through the trap doors located at either end.
Superior had installed all the junction boxes before the catwalk was put up and was nearing
completion of its wiring work by the day of the accident. On the day before the accident, company
 3

foreman Larry Rockhold assigned two journeyman electricians, Stansberry and Gordon Stevens,
to finish running wires from the distribution panels in the electrical equipment room to junction
boxes and then on to the receptacles and light fixtures in the individual offices.
After they completed their assignment, the electricians discovered that the circuit serving
one of the offices was not properly energized. In order to correct this problem, Stansberry climbed
a ten-foot ladder and stepped through an opening in the insulation onto the wooden catwalk. After
kneeling on the catwalk and making the repair to the junction box, Stansberry stood up and stepped
off the catwalk with his right foot onto the top of the ladder a few inches below. In doing so, he
caught his pant leg in a metal brace, lost his balance, fell to the floor and was injured.
Discussion
In vacating the section 1926.5OO(d)(1) citation, the judge found that the “record evidence
establishes that Superior could not with reasonable diligence have known of the violative
condition.” He stated that it “could be assumed Superior was on notice that work could be
performed by the employees while on the catwalk,” but Superior exercised reasonable diligence
in that it had formulated and implemented adequate training programs and work rules to ensure
employees performed their work safely. The judge found that the “record also shows that a
specific safety rule applied to the alleged violation in this case” and that Stansberry (the employee
who fell) admitted that he was in violation of the foreman’s instructions and received a verbal
warning for his conduct. The judge thus concluded that Superior proved its affirmative defense
of unpreventable employee misconduct.
We conclude that the judge’s findings are not correct. First, we fmd that Superior had
constructive knowledge through its foreman, Rockhold. He testified that he gave electricians
Stevens and Stansberry the following safety instructions:
I informed them that I didn’t think their job would necessitate them getting above
the ceiling, but that if it did, and they had to perform any work on the catwalk, that
there were safety belts and trouble lights available, and they should use them . . . I
pointed out the two accesses to the catwalk that were available.
This testimony demonstrates that the foreman knew of the existence of the unguarded catwalk and
knew that his employees might use it. When a supervisory employee has actual or constructive
knowledge of the violative conditions, that knowledge is imputed to the employer, and the
Secretary satisfies his burden of proving knowledge without having to demonstrate any inadequacy
or defect in the employer’s safety program. Dover Elevator Co., 16 BNA OSHC 128 1, 1286,
1993-95 CCH OSHD 7 30,148, p. 41,479 (No. 91-862,1993).
Second, we find that Superior failed to establish the afbative defense of unpreventable
employee misconduct. Although Superior had in place numerous elements of a general safety
program, including weekly safety meetings, safety notes in pay envelopes, supervisory safety
checks, and disciplinary procedures, the essential element of the defense is a showing that, the
employer had established a work rule designed to prevent the violation. Pride Oil WeZZSew., 15
BNA OSHC 1809,1810,1991-93 CCH OSHD 7 29,807, p. 40,585 (No. 87-692,1992). Superior
had no such rule. Although there is evidence in the record that Superior had company rules
encompassing “safety at heights,” we find no evidence that Superior had safety rules specifically
about guardrails. Superior’s rule requiring the wearing of safety belts does not help its cause. The
Commission has held that “an argument that an employee’s failure to tie off to a safety belt was
unpreventable employee misconduct does not establish a defense to a citation where the violation
alleged is the lack of a standard guardrail.” Power Plant Div., Brown & Root, Inc., 10 BNA
OSHC 1837, 1840, 1982 CCH OSHD f[ 26,159 (No. 77-2553, 1982)(violation alleged lack of
standard guardrail around open-sided floor).2 Since it failed to establish its unpreventable
employee misconduct defense, we find that Superior violated the cited guardrail standard at section
1926.500(d)( 1).3

2We note that our finding of a violation here does not turn on the fact that an accident occurred.
Rather, the record clearly establishes that Superior’s employees were exposed to the violative
condition although, apparently, the condition was not the direct cause of the accident which
precipitated the inspection.

3Superior also raises on review the multi-employer worksite affirmative defense. We do not
consider the affirmative defense because (1) it was not raised in the company’s answer, as required
by Commission Rule 34(b)(3), 29 C.F.R. 5 2200.34(b)(3), (2) it was not specifically argued before
(continued...)
 5

                                Repeated Characterization
   The evidence also establishes that the violation is repeated under section 17(a), 29 U.S.C.

6 666(a), of the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. 55 65 1-678.
Under Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 7 23,294, p. 28,171 (No.
16183, 1979), a violation is repeated if “at the time of the alleged repeated violation, there was a
Commission final order against the same employer for a substantially similar violation.” A prima
facie case of substantial similarity is established by a showing that the prior and present violations
were for failure to comply with the same standard. Id. The evidence here shows that Superior was
issued a citation alleging a violation of section 1926.5OO(d)(1) on August 13, 1990. It is
undisputed that this citation became a final order. The Secretary has therefore established a prima
facie repeated violation. Superior attempts to rebut this showing by contending that the prior
citation, where it was cited for a guardrail that lacked a midrail, was not substantially similar to
the present citation, where there was no guardrail at all. We find that both citations involve the
same standard and the same hazard of falling from an elevated surface and therefore are
substantially similar. Because Superior has failed to rebut the Secretary’s evidence of substantial
similarity, we affirm the violation as repeated.
Penalty
Superior is a large company, employing about 300 people. Its prior history of violations
is demonstrated by the guardrail citation upon which the repeated characterization in this case is
based.4 The gravity of the violation falls in the moderate range, involving the exposure of two
employees who were briefly on the unguarded catwalk on numerous occasions and who could
have been seriously injured by a lo-foot fall off the catwalk. While we do not consider the gravity

3(...continued)
the judge, and (3) Superior does not now argue that it had good cause for not raising the defense
in its answer or before the judge.

4The Secretary proposed a penalty of $25,000. Superior does not argue in its brief that the
Secretary’s proposed penalty should be lowered if a repeated violation is found.
 6

to be as high as the Secretary suggests,’ we find that the record shows that the gravity is more
considerable than what our dissenting colleague finds. Good faith is also a factor to be considered
in the determination of the level of penalty. Here, we note that, while Superior was aware of the
problem with the catwalk and the likelihood that its workers might use it, there is no indication that
it undertook to call this problem to the attention of the prime contractor, or other contractor(s) with
more immediate responsibility for the catwalk. Based on the statutory criteria in section 17(j) of
the Act, 29 U.S.C. $666(j), discussed above, and particularly considering that this is a repeated
violation, Chairman Weisberg and Commissioner Guttman join in assessing a $5000 penalty.
Order
Accordingly, we afTfirma repeated violation of section 1926.5OO(d)(1) and assess a penalty
of $5000.

                                                                                #
                                                       Stuart E. Weisberg
                                                       Chairman




                                                       Daniel Guttman
                                                               /
                                                       Commissioner

Dated: May 30, 1996

‘As noted above, we do not rely on Stansberry’s fall under the particular circumstances of this
case.
MONTOYA, Commissioner, concurring in part and dissenting in part:
While I agree with my colleagues that the Secretary has established a repeat violation of
section 1926.5OO(d)(1) here, I consider the gravity of this violation to be low and would therefore
assess a more nominal penalty. The Secretary has asserted that the fact of employee Stansberry’s
accident supports his conclusion that this guardrail violation presented a high probability of an
accident. However, as the majority acknowledges, Stansberry fell when his pant leg became
hooked on a ladder as he was exiting the catwalk. It seems to me, then, that Stansberry’s fall was
entirely unrelated to the failure of Superior, or any other contractor, to provide the guardrail
protection required by the standard. I also consider the comparatively brief use that Superior’s
employees made of the catwalk as a further indication that this violation was of low gravity.

                                                     Velma Montoya -
                                                     Commissioner

Date&. May 30, 1996
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

Office of                                                                             Phone: (202) 606-5400

Executive Secretary Fax: (202) 606-5050

                                                          .

SECRETARY OF LABOR, .

                  Complainant,

                  v.                                               OSHRC Docket No.    914597

SUPERIOR ELECTRIC COMPANY,

                  Respondent.




                                 NOTICE OF COMMISSION             DECISION

The attached decision and order by the Occupational Safety and Health Review Commission was issued
on Mav 30-1996. - ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 5 660.

                                                          FOR THE COMMISSION

Date: May 30, 1996

                                                          Executive Secretary

91-1597

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 88 1
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Sarah J. DeBruin, Esq.
Bricker & Eckler
100 South Third Street
Columbus, OH 43215

Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC. 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-1597
SUPERIOR ELECTRIC CORP.
Respondent.

                    NOTICE OF DOCKETING
          OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on May !i4 1994. The decision of the Judge
will become a final order of the Commissron on June 20, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MXJSTFILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secre on or before
June 9, 1994 in order to permit sufficient time for its review.T ee
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti a.tion
. Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: May 20, 1994
DOCKET NO. 91-1597
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Iiti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Sarah J. DeBn& Esq.
Bricker & Eckler
100 South Third Street
Columbus, OH 43215 4291

Paul L. Brady
Administrative Law Jud e
Occupational Safety an cgHealth
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00102548823:05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE: . FAX:
COM (404) 3474197 COM (404) 347-0113
Frs (404) 3474197 F-T-S (404) 347-0113

                                                          ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 91-1597
..
SUPERIOR ELECTRIC COMPANY, :
..
Respondent. ..
.

APPEARANCES:

      .
      Janice L. Thompson, Esquire                                   Michael S. Holman, Esquire
         Office of the Solicitor                                      Bricker & Eckler
         U. S. Department of Labor                                    Columbus, Ohio
         Cleveland, Ohio ’                                                  For Respondent
               For Complainant

Before: Administrative Law Judge Paul L. Brady

                           DECISION AND ORDER ON REAMVD


      This matter          was remanded        by the Occupational           Safety and Health      Review

Commission for consideration of the merits of the case. The parties were allowed the
opportunity to file written briefs in this regard.
In order to prove a violation under section 5(a)(2) of the Occupational Safety and
Health Act (Act) as in this case, the Commission has held that the Secretary must prove that
(1) the standard applies to the working conditions cited; (2) the terms of the standard were
not met; (3) employees had accesg to the violative conditions; and (4) the employer knew
of the violative conditions or could have known with the exercise of reasonable diligence.
Kidka Constr.Mgt. Cop, 15 BNA OSHC 1870, 1992 CCH OSHD 1 29,829 (No. 88-1167,
1992); Aspa Phamaceutical Prods., Inc., 9 BNA OSHC’2126, 1981 CCH OSHD Il 25,578
(No. 78-6247, 1981), afd, 681 F.2d 69 (1st Cir. 1982).
The Commission determined in its decision of December 8, 1993, that the standard
applies to the conditions cited. The elements remaining to be decided relate to whether the
terms of the standard were not met and whether the employer knew of the violative
conditions or could have with reasonable diligence.
Briefly, the facts which are not in dispute show that Superior Electrical Company
(Superior) had been engaged in performing all electrical work required to convert a
warehouse into an office area. Superior was working on the ground floor of the building and
nearing completion of the renovation project which lasted about three months.
Approximately a week before the inspection, a drywall subcontractor installed a catwalk
above the ceiling to provide access to heating and air conditioning equipment and other
electrical and mechanical equipment located there. Superior had installed all the junction
boxes above the ceiling and completed most of the wiring before the catwalk was installed.
The ceiling over which the catwalk was located was approximately 10 feet above the
ground floor. The catwalk ran from one side of the building to the other, and there was a
trap door at each end of the catwalk in the offices at the far east and west ends of the
corridor to provide access. The camalk was approximately 150 feet long and was made of
three or four 2 x 8s laid side by side. On one side of the catwalk was a “studwall” made of
uncovered upright 2 x 4 “studs” to which the walls below the ceiling were attached. The
studs were spaced on X-inch centers. The other side of the catwalk had no railing or other
guard.
Journeymen electricians Bobby Stansberry and Gordon Stevens were assigned by their
foreman, Patrick Rockhold, to run wires from the junction boxes located above the ceiling
in the office area to receptacles and fixtures in the individual offices. In the performance
of this work, Stansberry fell off a lO-foot ladder to the floor. He testified that he had been
on the catwalk for five to ten minutes on the day he fell and for short periods several days
prior thereto.
 Superior admits that no guardrails were installed on the catwalk, and an employee
was on it without safety protection. The evidence sufficiently establishes that the terms of
the cited standard were not met, and employees were exposed to a fall of 10 or more feet.
The central issue is whether Superior knew or could have known of the violative
condition with the exercise of reasonable diligence. The Secretary essentially relies on the
facts which disclose that Rockhold assigned Stansberry and Stevens to clean up any loose
ends on the branch circuit wiring. If a problem with an overhead circuit was discovered,
Rockhold believed the electricians could reach it from a ladder through the open ceiling.
He told them he did not believe the job would require them to get on the catwalk; however,
if they did, safety belts were available.
Acknowledging that foreman Rockhold did not actually observe the employees on the
catwalk and it was hidden from view, the Secretary argues Superior had constructive
knowledge of the violative conditions. In support of this contention, the Secretary relies on
the Commission decision in lMosser Constr. Co., 15 BNA OSHC 1408, 1992 CCH OSHD
7 29,546, p. 39,905 (No. 894027, 1991), which states:
In determinin g whether an employer has constructive knowledge of a violation,
it is appropriate to examine whether the employer has exercised reasonable
diligence to discover and eliminate violative conduct. This reasonable
diligence requires adequate supervision of employees and the formulation and
implementation of adequate training programs and work rules, all for the
purpose of ensuring that the employees perform their work safely.

    Respondent    asserts that the Secretary has failed to show it could have discovered and

eliminated the alleged violative conditions with reasonable diligence. It is argued that the
employees were at no time instructed to work while on the catwalk. In fact, the foreman
believed the necessary work could be performed while standing on a lO-foot ladder (Tr. 27,
37-38, 89-90, 156).
From all the evidence in this case, it is clear Superior exercised reasonable diligence
to “eliminate the violative conduct” proscribed by the standard. It could be assumed
Superior was on notice that work could be performed by the employees while on the
catwalk. But consistent with the Commission’s decision in Mosser, supra, the employer had
formulated and implemented adequate training programs and work rules to ensure
employees performed their work safely.
Mr. Kenneth Swackhammer, Occupational Safety and Health specialist who
conducted the inspection, testified Superior’s safety program appeared to be a good one (Tr.
153). The evidence shows that supervisory personnel monitor the jobsite and take action
to abate any potential hazards (Tr. 108-109).
The record shows that the safety program includes an orientation for new employees
for both journeymen and apprentices. It requires employees to attend weekly job safety
meetings where electrical work hazards are discussed and information is provided. Work
rules are part of the program, and they are communicated and enforced as part of a f
disciplinary policy. The record also shows that a specific safety rule applied to the alleged
violation in this case. Finally, it is shown that Stansberry admits he was in violation of the
foreman’s instructions, and he received a verbal warning for his conduct (Tr. 98, 109,
116-117). Testimony shows that following verbal and written warnings, employees have been
discharged for violation of Superior’s safety rules (Tr. 206).
The
. record evidence establishes that Superior could not with reasonable diligence
have known of the violative condition, Furthermore, Superior has proven its affirmative
defense of unforeseeable employer misconduct, and it took the necessary steps to prevent
occurrence of the alleged violation. See General Dynamics Cop. v. OSHRC, 599 F.2d 453,
458 (1st Cir. 1979). Clearly, the conduct of Stansberry was in violation of Superior’s safety
policy which was communicated and enforced, and such conduct was unforeseeable. See
Bock v. L. E. Myers Co., High VoltageDiv., 818 F.2d 1270, 1277 (6th Cir. 1987).
.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing constitutes the findings of fact and conclusions of law in accordance

with Federal Rules of Civil Procedure 52(a).
 Based upon the foregoing decision, it is hereby ORDERED:
That the citation for the repeat violation of 29 C.F.R. 8 1926.500(d)(l) is vacated.

                                       Judge

Date: May 5, 1994