Michael J. Gresh Painting Co., Inc.

Plain-English summary

Michael J. Gresh Painting employees secured containment tarps on a bridge superstructure about 25 to 30 feet above the roadway without tying off. Six employees violated the company's fall-protection policy, including the foreman, who was not wearing a safety belt or harness. Judge Richard DeBenedetto found that the foreman's knowledge could be imputed to the company and that Gresh did not prove unpreventable employee misconduct. Its written rules addressed fall protection only generally, training did not adequately emphasize the hazard, and the foreman's participation showed lax enforcement. The fall-protection violation was affirmed with a $2,500 penalty, while a separate item withdrawn by the Secretary was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2) and 1926.501(b)(15)
• Outcome: Fall-protection item affirmed with a $2,500 penalty; withdrawn safety-program item vacated.
• Key point: A foreman's participation in unsafe conduct strongly undermines an employer's claim that its safety rules were effectively communicated and enforced.

Full text (OSHRC public release)

                                      :

SECRETARY OF LABOR, :
:
Complainant, :
v. : OSHRC DOCKET
: NO. 95-1794
MICHAEL J. GRESH PAINTING CO., INC. :
:
Respondent. :
______:
Appearances:
Gail E. Glick Carole W. Briggs
Office of the Solicitor Siegel, O’Connor, Schiff & Zangari, PC
U.S. Department of Labor Hartford, Connecticut
For Complainant For Respondent

Before: Administrative Law Judge Richard DeBenedetto

                                   DECISION AND ORDER

    On October, 30, 1995, Michael J. Gresh Painting Co., Inc. (“Gresh”) was issued a citation

stemming from inspection of a worksite located at the Cox Bridge in Lowell, Massachusetts. At the
time of the OSHA inspection, Gresh was working on the bridge in preparation for paint removal (Tr.
9, 70). The Secretary alleges Gresh committed serious violation of 29 CFR § 1926.501(b)(15), which
requires that each employee on a walking/working surface six feet or more above lower levels be
protected from falling by a guardrail system, safety net system, or personal fall arrest system; a $2,500
penalty is proposed by the Secretary1.
Responding to a referral from another contractor working at the same site, the compliance

    1
        The citation contained two items. The first item was withdrawn by the Secretary (Tr. 4)

Page Two

officer arrived at the worksite on August 22, 1995 (Tr. 8-10; Exhibit R-1).2 Upon approaching the
bridge, the compliance officer observed three Gresh employees working on the superstructure of the
bridge about 25 to 30 feet above the bridge roadway; they were attempting to secure containment
tarps to a center static line (Tr. 10-11; Exhibit C-1). According to the compliance officer, none of
the employees were tied off, and only two of them were wearing safety belts and lanyards (Tr. 10-11;
Exhibit C-1). The compliance officer later learned that the employee who was neither tied off nor
wearing a safety belt or harness was Gresh’s foreman (Tr. 12-13).
Gresh does not deny that these three employees, in addition to three others, were not tied off
at the time of the inspection (Tr. 100-01; Exhibit R-7). One of the employees appeared as a witness
for Gresh and candidly admitted that he was not tied off that day (Tr. 117-18, 122). Gresh’s
superintendent for the bridge project testified that all six employees violated company safety policy
in failing to tie off and were issued written warnings (Tr. 77, 81-83, 101; Exhibit R-7). Gresh does
not dispute that it was feasible for these employees to tie off while securing the containment tarps on
the day of the inspection (Tr. 78, 101). According to the project superintendent, brackets and cables
were installed along the main beam of the bridge’s superstructure in order to provide employees with
the ability to tie off to a static line system (Tr. 72-73, 95-97).3
Because no fall protection was being used, Gresh’s employees were exposed to a potential
fall of at least 25 feet which could have resulted in serious injury or even death (Tr. 12, 23-24; Exhibit
R-2). It is well-established that a supervisor’s knowledge of the violative conduct may be imputed
to his employer. Pride Oil Well Service, 15 BNA OSHC 1809, 1814, 1991-93 CCH OSHD ¶ 29,807
(No. 87-692, 1992). Here, Gresh’s foreman was neither tied off nor wearing a safety belt or harness,
but admitted to the compliance officer that he should have been using fall protection while working
at this height (Tr. 14). Moreover, he was supervising five employees who were also

    2
     The compliance officer was accompanied by an intern who videotaped the conditions observed at the

worksite (Tr. 9, 12; Exhibit C-1).
3
Despite these measures, as well as the use of lift equipment where possible, both the project
superintendent and one of the employees working at the site testified that due to the design of the bridge, it was
infeasible to have complete fall protection available for employees at all locations (Tr. 73-75, 77-79, 97-99,
118).
 Page Three

not tied off.
In its post-hearing brief, Gresh challenges the claim that it had knowledge of the violation
simply because its foreman participated in the violative conduct (Brief at 4). In order “[t]o rebut
prima facie proof that the knowledge of a supervisor should be imputed to it, the cited employer must
offer evidence that it had: established work rules designed to prevent the violation; adequately
communicated those work rules to its employees (including supervisors); taken reasonable steps to
discover violations of those work rules; and effectively enforced those work rules when they were
violated.” Id. at 1815. These elements are identical to the criteria required to establish the
unpreventable employee misconduct defense, also alleged here by Gresh. Id. at 1816. See also P.
Gioioso & Sons, Inc., 115 F.3d 100, 109-10 (1st Cir 1997). The following analysis is dispositive of
both arguments.4
As a bridge painting contractor, Gresh is engaged in a high-risk business that demands a
heightened awareness of fall protection requirements. Although the foreman and at least one of the
employees understood that they should have been using fall protection on the day of the inspection,
their failure to do so demonstrates that Gresh failed to adequately convey this message to its
employees (Tr. 118). While the compliance officer described Gresh’s written program as “very
good”, the program comes up short with regard to fall protection (Tr. 34; Exhibit R-1). Gresh’s
safety policy covers fall protection in a very general manner, simply repeating the language of several
standards set forth at Subpart M, the fall protection section of the construction standards (Tr. 82;
Exhibit R-4 at 4-6). The fall protection policy, which is supplied to all employees, contains no
specific work rules or directives mandating the use of fall protection (Tr. 82, 116-17).
In terms of training, Gresh’s project superintendent testified that Gresh conducts an annual
safety meeting attended by all employees, as well as weekly onsite safety meetings (Tr. 67-68, 71,

    4
      It should be noted that where a supervisory employee is involved, proof of unpreventable employee

misconduct is more rigorous and the defense more difficult to establish since it is the supervisor's duty to
protect the safety of employees under his supervision. Archer Western Contractors, Ltd., 15 BNA OSHC
1013, 1017, 1991 CCH OSHD ¶ 29,317 (No. 87-1067, 1991), aff’d, 978 F.2d 744 (DC Cir 1992).
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114-15).5 The evidence indicates, however, that Gresh failed to emphasize the importance of fall
protection at these safety sessions. For instance, fall protection appears to have been a small part of
the agenda for the 1995 annual meeting; according to the project superintendent, the subject was
covered in about an hour and a half and seems to have consisted of little more than an equipment
demonstration (Tr. 68-70, 85-86; Exhibit R-5 at 1). Although the project superintendent claimed that
fall protection was also mentioned at every onsite weekly meeting, it was documented as a topic at
only four of the meetings held at the Lowell worksite between June 12, 1995 and August 22, 1995,
the day of the inspection (Tr. 71-72, 87-90; Exhibit R-5 at 5-8). It is noteworthy that the employees
questioned by the compliance officer on the day of the inspection could not recall any fall protection
training beyond that given when they were supplied with safety belt equipment upon their hire by
Gresh (Tr. 18).
With regard to enforcement, Gresh’s project superintendent testified that unscheduled onsite
inspections were performed “periodically” by himself, the safety director, the owner, and/or the vice-
president of operations (Tr. 67, 79-80). Once or twice a week, depending upon the type of work
being performed, formal safety checklists were completed by the project superintendent; he
acknowledged, however, that a formal checklist for fall protection would not have been completed
on days when employees were hanging containment tarps (Tr. 105-07). When violations of company
safety policy were discovered, the project superintendent testified that disciplinary action was taken
pursuant to a 1995 disciplinary policy that provided for a verbal warning upon the first violation, a
written warning upon the second violation, and termination upon the third warning (Tr. 69, 83;
Exhibit R-5).6 Nevertheless, where, as here, a supervisor has engaged in misconduct and violated
company safety policy, that is strong evidence of lax enforcement of the employer's safety program.
Baytown Constr. Co., 15 BNA OSHC 1705, 1710, 1992 CCH OSHD ¶ 29,741 (No. 88-2912-S,
1992), aff’d, 983 F.2d 232 (5th Cir 1993). See also Archer Western, 15 BNA at 1017;

    5
     The project superintendent also vaguely mentioned that Gresh had an in-house fall protection safety

program that spans eight hours, but failed to provide any information about the program (Tr. 66-67).
6
Before 1995, Gresh’s enforcement policy allowed employees up to five warnings prior to termination
(Tr. 103). According to the project superintendent, the policy was changed to demonstrate that Gresh was
“more serious” about safety violations (Tr. 69).
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Pride Oil, 15 BNA at 1815. Here, the conduct of Gresh’s foreman suggests that he was unconcerned
about the likelihood and even the consequences of being observed, together with five employees
under his supervision, in violation of company safety policy (Tr. 22, 36, 55; Exhibit R-2).
Gresh’s subsequent punishment of these employees also raises serious concerns about the
implementation of its enforcement program. As indicated supra, all six employees, including the
foreman, received written warnings for violating company safety policy on the day of the inspection
(Tr. 77, 81-83; Exhibit R-7). This was apparently the second fall protection violation for some of
these employees, but the first violation for the foreman (Tr. 78, 81). According to the project
superintendent, the foreman was not issued a verbal warning for his first violation “because of the
severity of [the violation], because he was supposed to be taking care of [and] making sure everybody
else was tied off” (Tr. 81).
It is true that a foreman has the added responsibility of ensuring the safety of his crew (Tr.
65-66). Here, however, the conduct of Gresh’s foreman was more egregious for another, more
compelling, reason: unlike the other two employees observed by the compliance officer, the foreman
was not wearing any fall protection equipment to begin with, let alone not being tied off (Tr. 10-11,
125-26). His actions not only set a bad example for the employees in his crew, but also demonstrate
an extremely careless approach to work practices under conditions that demand a conscious regard
for safety precautions. This is particularly disturbing given the fact that the foreman was promoted
to this position just two weeks prior to the inspection!a period in his job career when interest in
safety should be high (Tr. 80-81). A reasonably thorough safety program connotes a program that
is an integral part of an employer’s operations. A safe work environment may only be achieved
through control of the working conditions and control of people’s actions. Only management can
implement such control. Gresh failed to present any evidence to indicate that, upon assuming his
supervisory position, the foreman received any special or augmented safety training, separate and
apart from that provided to non-supervisory personnel (Tr. 80). It is not insignificant that just one
week after the inspection, two Gresh employees working at another site, one of whom was a foreman,
were issued written warnings for fall protection violations (Tr. 83, 111; Exhibit R-6 at 3-4). Gresh
has failed to show that the misconduct of its employees was unpreventable.
Where Gresh has failed to prove that the misconduct was unpreventable, knowledge of the
 Page Six
violative conduct may be properly imputed to Gresh and a serious violation of § 1926.501(b)(15) has
been established. For the same reasons, Gresh’s employee misconduct defense must also fail. The
violation therefore is affirmed. In terms of a penalty, the compliance officer testified that a 40%
reduction was given for Gresh’s size, and a 10% reduction was given for past history (Tr. 24; Exhibit
R-2). Due to the serious nature of the violation, which the compliance officer validly assessed as a
high gravity-greater probability violation, a penalty reduction for good faith was not allowed pursuant
to the Field Inspection Reference Manual (FIRM) (Tr. 24-25, 37-39, 41, 46-48, 127-28; Exhibit R-2).
The compliance officer’s penalty evaluation is reasonable and in keeping with the penalty assesment
criteria of 29 U.S.C.S 666(j). Accordingly, a penalty of $2,500 is assessed.
Based upon the foregoing findings and conclusions, it is
ORDERED that item 1, alleging serious violation of § 1926.20(b)(2), having been withdrawn,
is vacated. It is further
ORDERED that item 2, alleging serious violation of § 1926.501(b)(15), is affirmed and a
penalty of $2,500 is assessed.

                                                   _______________________________
                                                   Richard DeBenedetto, OSHRC Judge

Dated: _______
Boston, Massachusetts