Gem Industrial, Inc.

Plain-English summary

Three GEM ironworkers performed detailing work on beams about 31 feet above the ground without fall protection. The Commission found that GEM had a communicated tie-off rule, but its repeated oral warnings were ineffective, its progressive discipline was not followed, and its monitoring was inadequate despite known compliance problems. It therefore rejected the unpreventable-employee-misconduct defense and reversed the judge's decision vacating the item. The Commission did not uphold the repeat classification because the record did not show enough about the circumstances of an earlier general-duty fall citation to establish substantial similarity. The violation was classified as serious, and the proposed $25,000 penalty was reduced to $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); prior citation under 29 U.S.C. § 654(a)(1)
• Outcome: The vacated item was reinstated as serious rather than repeated, and a $5,000 penalty was assessed.
• Key point: A safety rule does not establish unpreventable misconduct when warnings are ineffective, progressive discipline is not followed, and known compliance problems are not adequately monitored.

Full text (OSHRC public release)

                                        :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. :
: OSHRC Docket No. 93-1122
GEM INDUSTRIAL, INC., :
:
Respondent. :
:

                                     DECISION

BEFORE: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
At issue is whether Administrative Law Judge Michael H. Schoenfeld erred in
vacating a citation for a violation of 29 C.F.R. § 1926.105(a)1 issued to GEM Industrial, Inc.
(“GEM”) on the grounds that the violative condition was the result of unpreventable
employee misconduct. For the reasons that follow, we reverse the judge and find a violation.
We also find that the Secretary failed to establish that the violation was repeated, as alleged.
Background
On February 26, 1993, GEM was engaged as a subcontractor to perform structural
steel erection on a single tiered building in Holland, Ohio. As compliance officer Christy
Matthewson from the Occupational Safety and Health Administration (“OSHA”) drove onto

1
Section 1926.105(a) provides:

   Safety nets shall be provided when workplaces are more than 25 feet above the
   ground or water surface, or other surfaces where the use of ladders, scaffolds,
   catch platforms, temporary floors, safety lines, or safety belts is impractical.

2

the worksite, he noticed several employees performing detailing work2 on the beams without
any fall protection. The compliance officer took pictures of the ironworkers before getting
out of his car and dressing for the cold. This process took approximately 10 to 15 minutes.
The compliance officer observed three employees on the ground who were watching
these unprotected ironworkers. When he went into the company’s trailer, he formally met
the foreman, Mark Trace. When told that employees were working without fall protection,
Trace exclaimed either “Oh, they’re not?” or “They better not be!” and accompanied the
compliance officer out of the trailer. As they exited the trailer, someone yelled “OSHA’s
here.” The employees came down from the beams, obtained safety belts, and went back up
onto the steel with safety belt protection.
Relying on blueprints in the foreman’s trailer, the compliance officer determined that
the beams on which the employees were working were more than 25 feet above the ground.
The compliance officer later returned to the site and actually measured the beams to be
approximately 31 feet high. As a result of the inspection, GEM was issued a citation alleging
a repeat violation of section 1926.105(a) and proposing a penalty of $25,000.3
Judge’s Decision and Issues on Review
The judge found that the Secretary established all the elements of a violation. He
found that the employer could have known of the violative condition, the standard applied
to the cited condition, GEM failed to meet the terms of the standard, and employees had
access to the condition. E.g., Astra Pharmaceuticals Prods., 9 BNA OSHC 2126, 2129, 1981
CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d
69 (1st Cir. 1982). The judge then found that GEM had established the affirmative defense
of unpreventable employee misconduct and vacated the citation. The case was directed for
review on the issue raised by the Secretary: whether the judge erred in finding that GEM

2
Detailing work involves straightening and squaring the iron work that had already been
erected.
3
Another item in the citation, which alleged a violation of 29 C.F.R. § 1926.20(b)(2) for not
conducting regular inspections by a competent person, was vacated by the judge. The
Secretary has not petitioned for review of this item, and we need not review it.
 3

established the affirmative defense. In its brief on review, GEM also raises two objections
to the judge’s finding that the Secretary established a prima facie case. Although the
Commission ordinarily does not decide issues that are not directed for review, see Tampa
Shipyards, Inc., 15 BNA OSHC 1533, 1535 n.4, 1991-93 CCH OSHD ¶ 29,617, p.40,097
n.4 (No. 86-360, 1992) (consolidated), these two issues merit discussion.4 We discuss them
first.
The first objection on GEM’s part concerns the applicability of the standard. We
agree with the judge in rejecting GEM’s claim that the standard does not apply due to
insufficient height. The compliance officer gave unrebutted testimony that the height of the
beams upon which the employees were working was over 25 feet based on his reading of the
blueprints in GEM’s control, and GEM failed to object at the hearing to the compliance
officer’s testimony that he measured the beams’ height at about 31 feet on a later visit. We

4
Our dissenting colleague discusses at great length the questions raised by the Second Circuit
in New York State Electric & Gas v. Secretary of Labor, 88 F.3d 98 (2d Cir. 1996), and in
earlier Commission precedent concerning the role that evidence pertaining to an employer’s
safety program may play in proving both knowledge as an element of the prima facie case
of a violation and the employer’s affirmative defense of unpreventable employee misconduct.
She also concludes, based on her discussion of these questions, that the judge here erred in
finding knowledge on the part of Gem. This case was directed for review based on the
Secretary’s petition for review of the judge’s finding that Gem had established its affirmative
defense. Gem itself prevailed before the judge and did not petition the Commission for
review. It raised in its briefs on review, however, and we consider above, several objections
to the judge’s decision. Nevertheless, despite ample opportunity to do so, Gem has failed at
any time to except to the judge’s finding of knowledge. Accordingly, our colleague is, in
essence, introducing an issue into this case which the parties themselves have chosen not to
address.
We agree with our dissenting colleague that the Commission may, if it deems it
appropriate, consider issues not raised by the parties. We also agree with our colleague that
New York State Electric & Gas raises significant issues which we will address in other cases
now pending before the Commission in which the finding of employer knowledge has
actually been challenged on review. However, we think it unwise to further delay the
issuance of this case in order to address, at this late date, complex issues neither raised nor
addressed by the parties here.
 4

find the company’s challenge to the applicability of the standard particularly troubling where
GEM simultaneously proffered (in connection with the affirmative employee misconduct
defense) the affidavits of three employees to the effect that they were, indeed, working at
“approximately 25 feet above the ground” and that they knew that by failing to tie off they
“failed to comply with GEM’s mandatory policy”---which required employees to tie off
when working 25 feet above the ground.
The second objection concerns GEM’s argument that the cited standard does not
require safety belt use. It is well-settled that a prima facie case of a violation of section
1926.105(a) is made by showing that none of the protection listed in the standard, including
safety belts, was used. E.g., John H. Quinlan, 17 BNA OSHC 1194, 1195, 1993-95 CCH
OSHD ¶ 30,749, p. 42,715 (No. 92-756, 1995). Therefore, because its employees were not
using safety belts, or any other form of fall protection, GEM did not meet the terms of the
standard.
Unpreventable Employee Misconduct Defense
An employer can defend against the Secretary’s showing of a violation by establishing
the affirmative defense of unpreventable employee misconduct, which requires the employer
to prove that: (1) it has established work rules designed to prevent the violation; (2) it has
adequately communicated those rules to its employees; (3) it has taken steps to discover
violations; and (4) it has effectively enforced the rules when violations have been discovered.
E.g., Capform, Inc., 16 BNA OSHC 2040, 2043, 1993-95 CCH OSHD ¶ 30,589, p. 42,358
(No. 91-1613, 1994); Nooter Constr. Co., 16 BNA OSHC 1572, 1578, 1993-95 CCH OSHD
¶ 30,345, p. 41,841 (No. 91-237, 1994); accord Brock v. L.E. Myers Co., 818 F.2d 1270,
1276 (6th Cir. 1987), cert. denied, 484 U.S. 989 (1987).
There is no dispute that GEM has a work rule that requires employees to wear and tie
off safety belts when working more than 25 feet above the ground,5 and that the work rule

5
GEM argues that at the time of the inspection the steel industry considered OSHA steel
(continued...)
 5

was adequately communicated. Foreman Trace testified that, when he was there, he warned
employees every time they went up that they had to tie off their safety belts when working
more than 25 feet above the ground, and that fall protection was the number one topic at their
weekly safety meetings. It is not disputed that, as the three employees involved
acknowledged in their identically-worded signed “Employee Statements” in evidence,
GEM’s employees were aware of the work rule.
However, the defense fails because GEM did not establish that it adequately enforced
its safety rule; the context of the violation also indicates that GEM failed to prove that it took
adequate steps to discover violations. To prove adequate enforcement of its safety rule, an
employer must present evidence of having a disciplinary program that was effectively
administered when work rule violations occurred. See Capform, 16 BNA OSHC at 2043,
1993-95 CCH OSHD at p. 42,358 (evidence that only one of the two employees in violation
was “chewed out”); A.P. O’Horo Co., 14 BNA OSHC 2004, 2008, 1991-93 CCH OSHD
¶ 29,223, pp. 39,129-30 (No. 85-369, 1991) (evidence showed “no set policy on
enforcement”); see also Brock v. L.E. Myers Co., 818 F.2d at 1277-78 (safety “program in
practice . . . was not only ignored but actively disregarded”); Precast Services, Inc., 17 BNA
OSHC 1454, 1456, 1995 CCH OSHD ¶ 30,910, p. 43,034 (No. 93-2971, 1995), petition for
review filed, No. 96-3031 (6th Cir. Jan. 9, 1996) (no evidence of enforcement prior to the
start of the job cited).
The record indicates that GEM had a program that included both verbal warnings and

5
(...continued)
erection standards to be in a “state of flux.” However, GEM’s work rule establishes that it
was fully aware that its employees were required to wear safety belts when working more
than 25 feet above the ground.

The record is unclear whether the work rule was written or only oral. However, the
Commission has not required safety rules to be written as long as the safety rule is clearly
and effectively communicated to employees. See Capform, Inc., 16 BNA OSHC at 2043,
1993-95 CCH OSHD at p. 42,358; Stuttgart Machine Works, Inc., 9 BNA OSHC 1366,
1368, n.5, 1981 CCH OSHD ¶ 25,216, p. 31,141 n.5 (No. 77-3021, 1981).
 6

increasingly severe disciplinary measures for repeated instances of misconduct. GEM
ironworker Jerome Laub testified that the first time that an ironworker is caught not tied off,
GEM would issue a verbal reprimand; for the second offense, GEM would issue a written
warning; and for further offenses, dismissal could result. Included in GEM’s safety manual
is a copy of GEM’s “Employee Written Warning of Disciplinary Action.” GEM argues that
it effectively enforced its work rule by this disciplinary program.
The judge agreed with GEM that it had effectively enforced the rule. He relied
particularly on his findings that “there is no evidence that other violations of the rule
occurred or that any of the employees involved had been disciplined for such violations in
the past[,]” and “[t]he unrebutted, uncontradicted testimony and evidence on this record is
to the effect that the employees . . . were . . . subject to more stringent discipline for future
violations.”
We determine that those findings by the judge are contrary to the evidence. The
foreman gave unrebutted testimony that there were three instances of noncompliance with
GEM’s safety belt work rule in the month prior to the inspection, and that he had orally
reprimanded each of those ironworkers. One of those employees, Rick Cole, was among the
three employees that the compliance officer observed without fall protection during the
inspection. Yet, instead of receiving a written reprimand after this second infraction of
GEM’s safety belt rule, as required by GEM’s own progressively more stringent disciplinary
program, Cole declares in his signed “Employee Statement” in evidence that he received only
a verbal warning.6
Foreman Trace testified that the only type of reprimand issued for violations of this

6
Post-inspection discipline may be considered in determining if a work rule was effectively
enforced, provided that it is viewed in conjunction with pre-inspection discipline. See, e.g.,
R. Zoppo Co., 9 BNA OSHC 1392, 1396 & n.7, 1981 CCH OSHD ¶ 25,230, p. 31,184 n.7
(No. 14884, 1981); Asplundh Tree Expert Co., 7 BNA OSHC 2074, 2080, 1980 CCH OSHD
¶ 24,147, p. 29,347 (No. 16162, 1979); see also Precast Services, 17 BNA OSHC at 1456,
1995 CCH OSHD at p. 43,034.
 7

work rule were verbal ones, and there is no evidence otherwise in the record of more
stringent enforcement. While there is no express regulatory requirement that second
infractions must result in more than a verbal reprimand, evidence of verbal reprimands alone
suggests an ineffective disciplinary system. Pace Constr. Corp., 14 BNA OSHC 2216, 2218-
19, 1991-93 CCH OSHD ¶ 29,333, pp. 39,428-29 (No. 86-758, 1991); see Precast, 17 BNA
OSHC at 1455, 1995 CCH OSHD at p. 43,034. Only in a rare case, like Alabama Pwr. Co.,
13 BNA OSHC 1240, 1986-87 CCH OSHD ¶ 27,892 (No. 84-357, 1987), where an
employer has a long, near-unblemished safety and health history, despite frequent
opportunities for violations, can that employer establish that its work rule was effectively
enforced by only oral reprimands. See Precast, 17 BNA OSHC at 1456, 1995 CCH OSHD
at p. 43,034.
The record here shows that this is not such a rare case. Instead of a long, near-
unblemished history, here there were three violations of the same work rule in the month
prior to the inspection. This fact indicates that the oral reprimands were ineffective in
preventing employees from violating the work rule. See, e.g., Pace Constr. Corp., 14 BNA
OSHC at 2218-19, 1991-93 CCH OSHD at pp. 39,428-29) (fact that oral warnings given to
every employee on the job shows work rule ignored on widespread basis); Wallace Roofing
Co., 8 BNA OSHC 1492, 1495, 1980 CCH OSHD ¶ 24,515, p. 29,974 (No. 76-4844, 1980)
(employer aware that particular employee persisted in failing to comply with rule following
oral warnings). Moreover, foreman Trace seemed to recognize the ineffectiveness of oral
reprimands when he agreed there was “a problem getting the employees to tie off on this job”
and therefore he had to keep reminding the ironworkers to use safety belts each time they
went up. In addition, GEM’s failure to issue to ironworker Cole a written reprimand,
although it was his second violation of the work rule, demonstrates that GEM did not follow
its own safety program, as outlined in employee Laub’s testimony. This fact undermines
GEM’s claim that its oral reprimands provided adequate enforcement, as does the fact that
GEM, as employer of about 500 employees overall (fifteen at this site), failed to introduce
 8

any evidence that it had ever taken any more stringent measures to enforce this work rule
than oral reprimands.7
Finally, we note that none of the three employees on the beams were using the
required fall protection. Where all the employees participating in a particular activity violate
an employer’s work rule, the unanimity of such noncomplying conduct suggests ineffective
enforcement of the work rule. E.g., Falcon Steel Co., 16 BNA OSHC 1179, 1194, 1993-95
CCH OSHD ¶ 30,059, p. 41,343 (No. 89-2883, 1993) (consolidated); Daniel Intl. Corp., 9
BNA OSHC 1980, 1983 n.9, 1981 CCH OSHD ¶ 25,492, p. 31,790 n.9 (No. 15690, 1981).
As the facts discussed above suggest, the evidence that GEM did not enforce its plan
goes hand in hand with the evidence that GEM did not take adequate steps to discover
violations of its work rule. As noted above, contrary to the judge’s finding, the evidence
shows (and GEM acknowledges) that employees had been orally reprimanded in the weeks
prior to the inspection. Moreover, in defense of the violation at issue, GEM relies in its brief
on review on the premise that ironworkers maintained a large degree of discretion in the use
of fall protection “and in fact did not use such devices most of the time.” While this context
should have been cause enough for careful monitoring, the circumstances of the day of the
inspection provided further cause. It had snowed earlier in the day. After deciding at 7:30
a.m. that the beams were too slippery, foreman Trace assigned the employees other work.
He left it to their discretion as to when they would go up on the beams. Despite knowing of
the ironworkers’ reluctance to use safety belts, the foreman did not follow up by observing
the employees later, and therefore he was uncertain when they went up. See generally Gary

7
We note that while the compliance officer testified that GEM’s overall enforcement
program was “above average,” he specifically testified that GEM’s enforcement program for
safety belts was not. Even foreman Trace seemed to acknowledge the relative weakness in
safety belt enforcement by characterizing employee compliance before the inspection as
“probably good,” while at the time of the hearing it was “excellent.” The compliance officer
gave other important aspects of GEM’s safety program (comprehensiveness of safety and
health program, communication of program to employees, and safety and health training) no
more than an “average” rating on the evaluation form in evidence.
 9

Concrete Prods., Inc., 15 BNA OSHC 1051, 1056, 1991-93 CCH OSHD ¶ 29,344, p. 39,453
(No. 86-1087, 1991).
In this case, the violation arose in the context where GEM had special reason to be
concerned that ironworkers would not be abiding by the work rule at issue. We find that
GEM failed to prove this element of the unpreventable employee misconduct defense as
well.
In sum, for the reasons stated above, we find that GEM failed to establish that the
violation was the result of unpreventable employee misconduct.8

8
Chairman Weisberg notes that his dissenting colleague analogizes the Commission’s
rejection of recognized affirmative defenses to Lucy pulling the football away as Charlie
Brown is about to kick it. In light of her stated misgivings then, he wonders why, with the
exception of this case and one other case in which the majority vacated the citation on other
grounds, she has consistently voted with the majority in rejecting the recognized affirmative
defense at issue here, the unpreventable employee/supervisory misconduct defense. See
Superior Elec. Co., 17 BNA OSHC 1635, 1637, 1996 CCH OSHD ¶ 31,060, p. 43,321 (No.
91-1597, 1996), petition for review filed, No. 96-3824 (6th Cir. July 29, 1996); Precast
Serv., Inc., 17 BNA OSHC at 1456, 1995 CCH OSHD at p. 43,034; Ceco Corp,, 17 BNA
OSHC 1173, 1176, 1995 CCH OSHD ¶ 30,742, p. 42,703 (No. 91-3235, 1995); Valdak
Corp., 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ¶ 30,759, p. 42,740 (No. 93-0239,
1995), aff’d, 73 F.3d 1466 (8th Cir. 1996); Centex-Rooney Constr. Co., 16 BNA OSHC
2127, 2130, 1993-95 CCH OSHD ¶ 30,621, p. 42,410 (No. 92-851, 1994); Capform, Inc.,
16 BNA OSHC at 2043, 1993-95 CCH OSHD at p. 42,358; Wheeling-Pittsburgh Steel Co.,
16 BNA OSHC 1780, 1784, 1993-95 CCH OSHD ¶ 30,445, pp. 42,039-40 (No. 91-2524,
1994); Nooter Constr. Co., 16 BNA OSHC at 1578, 1993-95 CCH OSHD at p. 41,841;
Kraft Food Ingredients Corp., 16 BNA OSHC 1393, 1401, 1993-95 CCH OSHD ¶ 30,213,
pp. 41,588-89 (No. 88-1736, 1993); Foster-Wheeler Constr., 16 BNA OSHC 1344, 1349,
1993-95 CCH OSHD ¶ 30,183, p. 41,526 (No. 89-287, 1993); Falcon Steel Co., 16 BNA
OSHC 1179, 1194, 1991-93 CCH OSHD ¶ 30,059, pp. 41,342-44 (No. 89-2883,
1993)(consolidated); Jersey Steel Erectors, 16 BNA OSHC 1162, 1164, 1993-95 CCH
OSHD ¶ 30,041, pp. 41,216-17 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3d Cir. 1994);
L.E. Myers Co., 16 BNA OSHC 1037, 1042, 1993-95 CCH OSHD ¶ 30,016, pp. 41,127-28
(No. 90-945, 1993); Pride Oil Well Serv., 15 BNA OSHC 1809, 1816, 1991-93 CCH
OSHD ¶ 29,807, p. 40,585 (No. 87-692, 1992); Mosser Constr., 15 BNA OSHC 1408,
1415, 1991-93 CCH OSHD ¶ 29,546, pp. 39,905-6 (No. 89-1027, 1991); A.P. O’Horo Co.,
14 BNA OSHC at 2008, 1991-93 CCH OSHD at pp. 39,129-30. In his view, perhaps a more
(continued...)
 10

                             Classification of Violation
   The allegation that the present citation was repeated is based on a previous citation

issued in August 1992 for a serious violation of the general duty clause, section 5(a)(1), 29
U.S.C. § 654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-
678 (“the Act”). The Secretary introduced into evidence only the first page of that citation,
which describes the violation as follows:
Outside, south side of building employee performing miscellaneous iron work
at the roof edge was exposed to a fall hazard of approximately 21 ft. Among
others, some feasible and useful methods to correct this hazardous condition
would be to use [. . .]
The remainder of the citation was not introduced into evidence. The citation resulted in a
settlement agreement.
When the Secretary alleges a repeated violation, the Secretary has the burden of
establishing that the violations were substantially similar. Potlatch Corp., 7 BNA OSHC
1061, 1063, 1979 CCH OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979). Where the citations
involve the same standard, the Secretary makes a prima facie showing of “substantial
similarity” by showing that the prior and present violations are for failure to comply with the
same standard. The burden then shifts to the employer to rebut that showing. Monitor
Constr. Co., 16 BNA OSHC 1589, 1594, 1993-95 CCH OSHD ¶ 30,338, p. 41,825 (No. 91-
1807, 1994). However, where, as here, the citations involve different standards, the
Secretary must adduce sufficient evidence to show substantial similarity of the violations.
Monitor, 16 BNA OSHC at 1594, 1993-95 CCH OSHD at pp. 41,825-26.
To meet this burden, the Secretary must show that the two violations involve similar

8
(...continued)
apt football analogy for his dissenting colleague might be that one can’t play on both sides
of the line of scrimmage at the same time. He notes further that his dissenting colleague was
part of the majority in the Commission’s decision in New York State Elec. & Gas Corp., 17
BNA OSHC 1129, 1995 CCH OSHD ¶ 30,745 (No. 91-2897, 1995), rev’d, 88 F.3d 98 (2d
Cir. 1996), another fact which appears to have entirely escaped her.
 11

hazards. Id. The Secretary argues that the fall hazards involved in the current and earlier
citations are substantially similar based on the heights involved--26 to 31 feet and 21 feet,
respectively--and the fact that a fall from those heights could have resulted in death or
serious physical harm.
That the possible fall differences varied somewhat does not mean that the hazards are
not substantially similar. Stone Container Corp., 14 BNA OSHC 1757, 1762, 1987-90 CCH
OSHD ¶ 29,064, p. 38,819 (No. 88-310, 1990). Indeed, the Commission has held that the
difference between fall distances of 15 and 30 feet was not so dissimilar as to preclude a
finding of repeated. J.L. Foti Constr. Co., Inc., 8 BNA OSHC 1281, 1284, 1980 CCH
OSHD ¶ 24,421, p. 29,782 (No. 76-4429, 1980)(consolidated). Moreover, a violation of a
standard can be repeated even though based on a previous violation of the general duty
clause. Potlatch, 7 BNA OSHC at 1064, 1979 CCH OSHD at p. 28,172. However, the
Secretary must show more than just that the fall distances are similar to establish that the
violations are substantially similar; he must show substantial similarity based on the
circumstances surrounding the hazard. See Monitor Constr., 16 BNA OSHC at 1594, 1993-
95 CCH OSHD at p. 41,826 (hidden hazard of falling into manhole when its cover breaks
or shifts is not substantially similar to hazard of stumbling into a beam trough).
In this case, we conclude that the evidence regarding the particular circumstances of
the first citation is insufficient to establish that the violations were substantially similar. The
1992 citation indicates only that an employee doing ironwork at the roof edge was exposed
to a 21-foot fall. The record fails to disclose the circumstances surrounding the hazard, such
as whether the employee was standing on a roof with a substantial floor, or whether the
employee was working from a roof sufficiently unfinished to require walking across and
straddling the beams. Even the method of abatement suggested by the Secretary for the
section 5(a)(1) citation is not in the record, because the next page of the citation is not in
evidence. On this record, we cannot conclude that the citations for the standard and section
5(a)(1) of the Act were substantially similar merely because they both involved fall hazards.
Although we find that the violation was not repeated, we classify this violation as
serious under section 17(k) of the Act, 29 U.S.C. § 666(k), because GEM did not dispute
 12

the compliance officer’s testimony that any fall could have resulted in death or serious
physical harm. See generally, Simplex Time Recorder Co., 12 BNA OSHC 1591, 1597,
1984-85 CCH OSHD ¶ 27,456, p. 35,572 (No. 82-12, 1985).
Penalty
GEM is a large employer with approximately 500 employees. The gravity of the
violation was high because severe injury could have resulted from falling over 25 feet, and
the probability of injury was high because three employees were exposed to such falls on a
day when it had snowed, therefore increasing the likelihood that the beams were wet and
slippery. Although the compliance officer agreed that the sun would have melted the snow,
he also noted that once an area fell into shadow, any water on the steel would have turned
to ice.
While GEM does have a good overall safety program and, therefore, is entitled to
some credit for good faith, we are not unmindful that the work rule violations did suggest a
pattern of misconduct that should have been addressed by the company prior to this citation.
Finally, GEM’s safety history reveals a prior serious violation of the Act involving fall
protection, the section 5(a)(1) item discussed above. Based on the statutory criteria in
section 17(j) of the Act, 29 U.S.C. § 666(j), discussed above, we find that a penalty of $5000
is appropriate.
 13

                                     Order
  Accordingly, we find a serious violation of section 1926.105(a) and assess a penalty

of $5000.

                                             /s/
                                             Stuart E. Weisberg
                                             Chairman

                                             /s/
                                             Daniel Guttman
                                             Commissioner

Dated: December 6, 1996
MONTOYA, Commissioner, dissenting:
For the reasons stated below, I disagree with the majority’s decision to reverse Judge
Schoenfeld’s finding that the alleged violation of 29 C.F.R. § 1926.105(a) resulted from
unpreventable employee misconduct. Furthermore, unlike the majority, I consider the recent
decision of the Second Circuit Court of Appeals in New York State Electric & Gas
Corporation v. Secretary of Labor, 88 F.3d 98, 107-78 (2nd Cir. 1996), rev’g & remanding
17 BNA OSHC 1129, 1993-95 CCH OSHD ¶ 30,745 (No. 91- 2897, 1995) to be significant
enough to justify discretionary review on the closely-related issue of whether the Secretary
has established a basis upon which GEM can be properly charged with knowledge of this
violation, even though this issue was neither directed for review nor briefed by the parties.
See Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1803, 1986-87 CCH OSHD ¶ 27,576,
p. 35,825 (No. 83-308, 1986) (issue not directed for review remains within Commission’s
jurisdiction and may be reviewed after parties are afforded any necessary opportunity to brief
issue). Cf. John T. Brady & Co., 10 BNA OSHC 1385, 1386, 1982 CCH OSHD ¶ 25,941,
p. 32,502 (No. 76-2894, 1982), rev’d on other grounds, No. 82-4082 (2d Cir., Oct. 14, 1982)
(due to issuance of controlling precedent after direction for review, case was decided on
grounds other than those specified in direction for review).
In this case, GEM has followed the line of Commission authority that requires an
employer to plead “unpreventable employee misconduct” as an affirmative defense, thereby
assuming the burden of proving: (1) it had workrules designed to prevent the violation; (2)
it adequately communicated those rules to its employees; (3) it took steps to discover
violations of the rules; and (4) it effectively enforced the rules when violations were
discovered. Marson Corp., 10 BNA OSHC 1660, 1662, 1982 CCH OSHD ¶ 26,075,
p. 32,804 (No. 78-349, 1982). In support of this affirmative defense, GEM has offered
certain facts to demonstrate that it did in fact have an adequate safety program. However,
as Chairman Rowland’s dissent in Marson made clear, the Commission’s practice up to that
point had been to accept the same evidence as rebuttal of the Secretary’s prima facie proof
of employer knowledge. Marson Corp., 10 BNA OSHC 1660, 1663-67 1982 CCH OSHD
¶ 26,075, pp. 32,805-58 (No. 78-349, 1982) (Rowland dissent). In Chairman Rowland’s
opinion, the majority had impermissibly shifted the burden of proof by requiring the
 2

employer, as part of an affirmative defense, to establish the adequacy of its safety program.9
Indeed, an employer’s responsibility under the OSH Act is invariably tied to the
adequacy of its safety program. However, as two Justices of the Supreme Court have
recognized, the Commission and the courts have taken a “confusing patchwork of conflicting
approaches” when deciding which party bears the burden of proof on this most important
element of any employer contest. Brock v. L.E. Meyers Co., 484 U.S. 989 (1987) (White, J.,
with whom Justice O’Connor joined, dissenting from denial of certiorari), 818 F.2d 1271
(6th Cir. 1987). The Second Circuit Court of Appeals recently confronted these historical
inconsistencies in New York State Electric & Gas Corporation v. Secretary of Labor, 88 F.3d
98 (2nd Cir. 1996), arriving at what must surely be the correct resolution. In that case, the
Commission had charged an employer with knowledge of a violation based on its failure to
provide a supervisor at the worksite. After a comprehensive review of the decisions of its
sister circuits, the court held that when an employer’s knowledge is based upon its failure
to establish an adequate safety program, those inadequacies must be proven by the Secretary
as part of his case-in-chief. Id. at 108. Relying specifically on precedent from the Sixth
Circuit, the circuit where this case arose, the court reasoned that:
[c]ontrary to the Secretary’s suggestion, the view of the majority of the
Circuits -- that unpreventable employee misconduct is an affirmative defense
-- does not compel a holding that the employer bears the burden on the
adequacy of its safety policy in this case. The Secretary must first make out
a prima facie case before the affirmative defense comes into play. See L.E.
Myers, 818 F.2d at 1277.
Id at 108. The court ultimately found that the Commission had acted arbitrarily and
capriciously:
first, by departing without explanation from its prior decisions placing the
burden regarding knowledge on the Secretary and, second, by impermissibly
misconstruing the Act and applying a per se rule that a safety policy is
inadequate if employees are not constantly monitored for safety violations.

9
For a more recent case that considers the misconduct analysis both for rebuttal of prima
facie knowledge and as an affirmative defense, see Pride Oil Well Service, 15 BNA OSHC
1809, 1814-1816, 1991-93 CCH OSHD ¶ 29,807, pp. 40,583-86 (No. 91-1395, 1992)
 3

Id at 109.
The majority here avoids this issue by limiting its step-by-step assessment of GEM’s
safety program to the affirmative defense of unpreventable employee misconduct. Looking
at the record, however, it is clear that the Secretary has not shown that GEM’s supervisors
had actual knowledge of this violative condition. Furthermore, the only theory of
constructive knowledge would be, as the judge found, that a GEM supervisor exercising
reasonable diligence would have seen that these ironworkers were violating the fall
protection standards. By imputing knowledge to GEM on this basis, the judge appears to
have applied the very per se rule that the Second Circuit Court of Appeals disallowed in New
York Gas and Electric. Even if one where to accept that prima facie knowledge has been
shown, the proof that GEM has offered in support of its unpreventable employee misconduct
defense is more than sufficient to rebut this theory of constructive knowledge. GEM’s
supervisor, foreman Trace, testified without contradiction that he warned employees to use
fall protection every day, and that fall protection was the number one topic at the weekly
safety meetings. This was confirmed by the ironworkers themselves, all of whom testified
that they were well aware of GEM’s fall protection requirements, and that they had been
verbally reprimanded for not using fall protection. Even OSHA’s compliance officer rated
the overall enforcement of GEM’s safety program as “above average.” Based on the above,
the judge plainly erred in charging GEM with knowledge of this violative condition.10

10
The principle upon which proof of an adequate safety program was shifted from rebuttal
of prima facie knowledge to support of an affirmative defense has entirely escaped me, just
as it escaped Chairman Rowland in Marson Corporation, 10 BNA OSHC 1660, 1663-67,
1982 CCH OSHD ¶ 26,075, pp. 32,805-8 (No. 78-349, 1982)(Rowland dissent) and the
Second Circuit Court of Appeals in New York State Electric & Gas Corporation v. Secretary
of Labor, 88 F.3d 98 (2nd Cir., 1996). Indeed, I can think of no case in which evidence of
an adequate safety program would fail to rebut the Secretary’s prima facie proof of
knowledge, yet would still support an affirmative defense. It occurs to me that there have
been only two practical effects of the Commission’s treatment of “unpreventable employee
misconduct” as an affirmative defense: first, it shifts to the employer the burden of proving
that its safety program is adequate and, second, by encouraging the employer to come
forward with the details of its safety program, it increases the likelihood that the employer
(continued...)
 4

   Repeating again the words of the Second Circuit Court of Appeals, “[t]he Secretary

must first make out a prima facie case before the affirmative defense comes into play. See
L.E. Myers, 818 F. 2d at 1277.” New York Electric & Gas, 88 F.3d at 108. I have stated my
position that the safety program evidence offered by the employer here is properly
considered as rebuttal of the Secretary’s prima facie case. However, even if I were willing
to concede that the Secretary has established employer knowledge, this same evidence
supports Judge Schoenfeld’s decision to grant the unpreventable employee misconduct
defense as pleaded by GEM in this case. The majority has not taken issue with the judge’s
findings on the first two elements of this defense (workrules designed to prevent the violation
and adequate communication of those rules to employees). There is no dispute that GEM
had workrules regarding fall protection that would have prevented this violation. Though it
is unclear whether the workrules were reduced to writing and included in GEM’s “Safety
Program,” the Commission has not, as the majority recognizes, required such workrules to
be written so long as they are clearly and effectively communicated to the employees.
Stuttgart Machine Works, Inc., 9 BNA OSHC 1366, 1368 n.5, 1981 CCH OSHD ¶ 25,216,
p. 31,141 n.5 (No. 77-3021, 1981); Capform, Inc., 16 BNA OSHC 2040, 2043, 1993-95
CCH OSHD ¶ 30,589, p. 42,358 (No. 91-1613, 1994). Again, GEM’s foreman testified
without contradiction that he warned his ironworkers to use fall protection every day, and
that fall protection was the number one topic at the weekly safety meetings. This was
confirmed by the employees, all of whom testified that they were well aware of GEM’s fall
protection requirements.
As for the final two elements, the majority has concluded that GEM failed to
establish either that its foreman took adequate steps to discover violations of the company’s
fall protection rules or that the rules were adequately enforced when violations occurred.
The record, on the other hand, indicates that GEM’s foreman did in fact monitor the
ironworkers on this job. The record also shows that certain of these ironworkers were found

10
(...continued)
will offer proof against itself on the issue of due diligence.
 5

to not be wearing fall protection and that oral reprimands were issued.11 As recognized by
the Third Circuit in Pennsylvania Pwr. & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir.
1984), rev’g 11 BNA OSHC 1321, 1983-84 CCH OSHD ¶ 26,517 (No. 79-5194, 1983),
“[t]he courts of appeals have consistently held that the adequacy of an employer’s safety
program, broadly construed, is the key to determining whether an OSHA violation was
reasonably foreseeable and preventable.” Though GEM’s contention that its disciplinary
program is strictly enforced may appear self-serving, OSHA’s own compliance officer rated
the overall enforcement of GEM’s safety program as “above average.” It is true that GEM’s
safety manual includes a form of a written disciplinary notice that threatens employees with
future dismissal, and that GEM offered no evidence that it had ever resorted to discipline
stronger than the verbal reprimands given the ironworkers at this jobsite. Nonetheless, the
Commission has previously accepted oral warnings as proof of adequate enforcement.
Alabama Power Co., 13 BNA OSHC 1240, 1245 1986-86 CCH OSHD ¶ 27,892 p. 36,580
(No. 84-357, 1987). The ironworkers who testified confirmed that they had been verbally
reprimanded for not using fall protection, and I see no practical purpose in requiring greater
proof of enforcement from GEM here. To find that the violation here was preventable, and
then penalize that violation as repeated, simply because GEM’s reprimands to these
ironworkers were not reduced to writing, seems an officious exercise serving merely to place
the defense beyond the facts of record.12
The Secretary has also argued that GEM’s foreman was watching the unprotected
employees when the compliance officer first arrived. If he was, the employee misconduct
alleged here would probably fail to establish an affirmative defense because (1) a foreman’s

11
While Judge Schoenfeld concluded that there was no evidence that earlier violations
occurred, GEM’s foreman admitted that he had previous problems with the ironworkers not
using fall protection. From the record, it appears that there were three instances of
noncompliance during the month prior to the inspection, including an instance involving one
of the three employees observed by the compliance officer during this inspection.
12
Indeed, the Commission’s treatment of employer attempts to establish recognized
affirmative defenses has often reminded me of the treatment that Peanuts character Charlie
Brown receives from his sometime friend Lucy when he attempts to place-kick a football.
 6

knowledge is ordinarily imputed to his employer (Marson, 10 BNA OSHC at 1661, 1982
CCH OSHD at p. 32,803) and (2) the failure of the workers to use fall protection was not so
“idiosyncratic and implausible in motive and means” that the foreman could not have
prevented it had he actually been watching. National Realty and Constr. Co., 489 F.2d 1257,
1266 (D.C. Cir. 1973). The compliance officer testified that he saw three employees on the
ground looking up at the ironworkers. One of these men then walked into GEM’s trailer.
The compliance officer further testified that when he went up to the remaining two
employees and asked them where the foreman was, he was told “he just went into the
trailer.” GEM’s foreman testified that he was in the trailer during this entire time. His
testimony was supported by that of two employees. Without explicitly assessing the
credibility of these witnesses, the judge concluded that a preponderance of the reliable
testimony established that the foreman was not watching. As a Commissioner sitting in
review of this record, I am obviously unable to judge the demeanor of these witnesses for
myself. I am therefore unwilling to disturb the judge’s resolution of this direct conflict in
testimony.

                                              /s/

Dated: December 6. 1996 Velma Montoya
Commissioner