THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90 – 100 Alabama Street, S.W.

Altanta, Georgia 30303-3104

Appearances:

        Holly M. Pope, Esq.

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

        For Complainant

        Steven R. McCown, Esq. & Barbi McLennan Lorenz, Esq.

Littler Mendelson, P.C., Dallas, TX

        For Respondent

Before:  Administrative Law Judge Sharon D. Calhoun

 At the time of the CSHO’s inspection Williams Brothers had a work rule in place requiring employees working at its concrete plants, like the Dixie Plant, to “[u]tilize 100% fall protection when working at heights greater than 6 [feet.]” (Exh. J-14, at 341; see also Exhs. J-6 at 3; J-8, at 3; Tr. 59-60). This policy required employees working at heights above six feet to “tie off” using a harness as a personal fall arrest system. (Exhs. J-14, at 52; Tr. 59-60, 167-68). However, as a general matter, the batch plants operated by Williams Brothers do not contain anchor points for tying off, although sometimes employees can tie off on a part of the structure itself. (Tr. 110-11). For this reason, following a fatal accident in 2020,2 Williams Brothers instituted an aerial lift policy to address issues with adequate fall protection at its batch plants. (Exh. J-24; Tr. 74-75, 114-15, 168-69).

Pursuant to its aerial lift policy, Williams Brothers owns approximately 60 or 70 aerial lifts, which are stored at its various worksites. (Exhs. J-20, at 2; J-25, at 4; Tr. 111-12). Under the policy, if batch plant employees intended to work at a height above six feet, the employees could attach their harnesses to an anchor point on the basket of a lift, thereby providing the employees with adequate fall protection. (Exhs. J-20, at 2-3; J-24; Tr. 60-61, 75). If an aerial lift was not present on the worksite where fall protection was needed, plant operators were instructed to contact a supervisor, like Barrios, to request an aerial lift (Exhs. J-20, at 2; J-24; Tr. 59-60, 74-75, 109-11, 114-15, 155, 168-69). Barrios could then contact another worksite where an aerial lift was present and have it sent to the worksite where the lift was needed. (Exhs. J-20, at 2; Tr. 109-10, 112, 155-56). Although the process of obtaining an aerial lift on a given worksite could take as long as a couple of hours, employees were instructed to not perform any work above six feet while waiting for the lift to arrive. (Exh. J-20, at 3; Tr. 112, 120, 128-29).

Training & Detection for Fall Protection

 The three employees working at the Dixie Plant on the date of the CSHO’s inspection were trained on and aware of Williams Brothers’ rule requiring fall protection generally, and the availability of aerial lifts as a means of fall protection specifically. (Exhs. J-6, at 3; J-8, at 3; J-20, at 2-3; J-21, at 1; J-22, J-23; Tr. 60, 75, 96-97, 113-14, 121-22, 136, 152). Yet, the only method Williams Brothers utilized to ensure its employees were complying with its fall protection policies were random worksite visits conducted by supervisors like Barrios. To this end, Barrios would show up at the worksites he oversaw, including the Dixie Plant, randomly throughout the week or when otherwise needed. (Exhs. J-20, at 3; J-21, at 1; Tr. 66-67, 83-84, 97-98, 156, 162, 169-70). However, these site visits were infrequent. Sometimes they occurred at a given site only once a week and other times only two or three times a month. (Exhs. J-20, at 3; J-21, at 1; Tr. 136-37, 157, 162). Other than these random site visits by its supervisors, Williams Brothers had no other programs in place to detect fall protection violations. It conducted no audits or evaluations to determine if its supervisors or employees were following its fall protection policies. (Exhs. J-6, at 3-4; J-8, at 3-4; Tr. 88, 98-99, 109).

Enforcement of Fall Protection Policies

 An employee’s failure to adhere to Williams Brothers’ fall protection policies resulted in mandatory termination of their employment. (Exh. J-14, at 51; Tr. 61-62, 151-52). In line with this policy, all three of the employees working at the Dixie Plant at the time of the CSHO’s inspection were terminated the day after the CSHO observed their fall protection violations. (Exh. J-18, at 1-4; Tr. 61-62, 158-59). However, prior to this incident, no other employee was terminated for violating Williams Brothers’ fall protection policies. (Tr. 76, 82-84, 129, 159). Williams Brothers produced no evidence of any other form of discipline imposed on employees for fall protection violations.

Events on March 17, 2022

 On March 17, 2022, three Williams Brothers employees, Flores, a load operator, and a laborer, were mixing concrete at the Dixie Plant. (Tr. 27, 85-86, 106). At some point, the crew heard a noise coming from a “bearing” on the conveyor, a bearing apparently being some type of moving part involved in the operation of the Plant. (Exhs. J-5, at 1; J-6, at 2; J-8, at 2; Tr. 49, 53-54, 145). Issues with a bearing arose approximately every three or four months at the Dixie Plant. (Tr. 84). This particular bearing was seemingly within reach of the elevated platform on the side of the dust collector.3 (Exhs. J-6, at 2; J-8, at 2; J-10, at 1 & 2; Tr. 32-33, 107, 138).

Typically, any work on the bearings, which is considered “maintenance” work, would be performed by a team of mechanics, who Barrios would call in at Flores’s request. (Tr. 95-96, 111, 113). Indeed, the employees stationed at the Plant did not have the requisite tools to perform “maintenance” work on the Plant’s bearings. (Exh. J-21, at 1; Tr. 120-21, 123). However, on the day in question, Flores did at least intend to investigate the source of the noise with the other two employees to determine if a maintenance crew was necessary. (Exhs. J-5, at 1; J-6, at 2; J-8, at 2; Tr. 121, 124, 145-46). Before doing so, Flores called Barrios to report the noise coming from the bearing and inform him of his intent to have the crew inspect it. (Exhs. J-6, at 3; J-8, at 3; Tr. 107-08, 121, 145-46). Barrios did not inquire as to the location of the bearing or how the crew intended to reach it if it were higher than six feet but simply responded “Okay. Go ahead and do it and be careful. Be safe.” (Tr. 108; see also Tr. 49).

Despite knowing aerial lifts were available, Flores did not call for an aerial lift to be sent to the Dixie Plant to investigate the noise coming from the bearing. (Exh. J-21, at 3; Tr. 171-72). Nor did the crew attempt to find a ladder to reach the platform on the side of the dust collector. Indeed, there were no portable ladders at the Dixie Plant worksite on the day at issue. (Exhs. J-5, at 1; Tr. 46, 55, 122, 167, 171-72). Rather, Flores directed the other two employees to climb up the conveyor, which started at a height of approximately eight feet from the ground, to investigate the source of the noise from the platform, which was approximately thirteen feet above the ground. (Exhs. J-6, at 3; J-8, at 3; J-10, at 2-6; J-19, at 3; J-20, at 1-2; J-21, at 1-2; Tr. 30, 34-35, 49, 107-08, 145).

Neither the conveyor nor the platform had guardrails, there was no safety net system in place at the Dixie Plant, and no one from the crew was equipped with a personal fall arrest system while climbing up to or working on the platform. (Exhs. J-5, at 1; J-6, at 2-3; J-8, at 2-3; J-10, at 2-5, 9, 10; J-12, at 2, 3, 21, 23, 24, 26, 27, 34, 37, 38; Tr. 32-34, 107, 137-38, 140-41). In other words, no one from the crew utilized any sort of fall protection while climbing up to or working from the thirteen-foot-high platform.

OSHA’s Inspection & Citation

The Dixie Plant crew worked for approximately five minutes on the platform. (Exhs. J-6, at 2; J-8, at 2; Tr. 30, 37-38). At that point, CSHO Rodrick Foreman was driving on Highway 45 and observed the three employees working on the platform without any apparent form of fall protection. (Exhs. J-5, at 1; J-6, at 2; J-8, at 2; Tr. 51). He therefore drove to the Dixie Plant worksite to investigate. (Exhs. J-5, at 1; J-6, at 2; J-7, at 1; J-8, at 2; J-9, at 1; J-10, at 1; Tr. 28, 51).

Before the CSHO reached the worksite, Flores had climbed down from the platform to retrieve more tools to inspect the bearing. (Exhs. J-5, at 1; J-6, at 3; J-8, at 3; Tr. 51, 54). The CSHO spoke briefly with Flores before approaching the Plant to take additional photographs. (Exhs. J-5, at 1; J-6, at 3; J-7, at 2; J-8, at 3; J-9, at 2; J-10, at 2; Tr. 28, 54). As he was taking the photographs, the CSHO asked the two employees still on the platform to come down so he could speak with them. (Tr. 54-55). Rather than using a ladder to climb down from the platform, as the CSHO had expected, the two employees walked the length of the conveyor and jumped down from an approximately eight-foot-high point to reach the ground. (Exhs. J-5, at 1; J-6, at 2-3; J-8, at 2-3; J-9, at 6; J-10, at 3; Tr. 55). When the CSHO inquired if there was a ladder onsite, he learned there was not. (Exhs. J-5, at 1; Tr. 46, 55, 122, 167).

The CSHO interviewed the two employees and took additional photographs. (Exhs. J-5, at 1; J-6, at 3; J-7, at 3-5; J-8, at 3; J-9, at 3-6; J-10, at 4-10; J-21; Tr. 55). He measured the height of the platform on which he had observed the employees working and determined it was approximately thirteen feet above ground level. (Exhs. J-6, at 3; J-8, at 3; J-10, at 5-6; J-19, at 3; Tr. 30, 34-35). He also measured the height of the point of the conveyor where he had observed the two employees jump down and determined it was approximately eight feet above ground level. (Exhs. J-6, at 3; J-8, at 3; J-19, at 3; Tr. 35).

The CSHO also spoke with Williams Brothers’ safety manager, Jairo Cortes, and Barrios, who meanwhile had arrived at the Dixie Plant. (Exhs. J-5, at 2; J-6, at 3; J-8, at 3; J-20; Tr. 28-29, 65, 149). During this interview, Barrios referred to Flores as the “leadman” at the Dixie Plant. (Exh. J-20, at 1; Tr. 59, 67, 75-76, 80, 125-26). Based on this description, in conjunction with Flores’s daily job duties including holding daily safety meetings and receiving and relaying instructions from Barrios to the other employees, the CSHO determined Flores was a supervisor at the Dixie Plant. (Tr. 48-51, 59, 67-69, 80).

Over the course of his investigation, from the inspection and opening conference conducted on March 17, 2022, until the closing conference conducted on June 8, 2022, the CSHO learned of Williams Brothers’ requirement for the use of fall protection when working at heights above six feet and its aerial lift policy. (Exhs. J-6, at 3; J-8, at 3; J-14, at 34 & 52; J-20, at 2; J-24; Tr. 59-60, 74-75, 109-12, 114-15, 155-56, 167-69). Based on his investigation, the CSHO believed all three employees at the Dixie Plant were aware of and had been trained on these policies. (Exhs. J-6, at 3; J-8, at 3; J-20, at 2-3; J-21, at 1; J-22, J-23; Tr. 60, 75, 96-97, 113-14, 121-22, 136, 152).

Regarding Williams Brothers’ discovery of fall protection violations, the CSHO learned Barrios might randomly show up at a given batch plant, including the Dixie Plant, but also learned Barrios’s visits to any given plant were infrequent. (Exhs. J-20, at 3; J-21, at 1; Tr. 66-67, 83-84, 97-98, 136-37, 156-57, 162, 169-70). Furthermore, Williams Brothers had no program in place to ensure its employees were following its fall protection policies, such as audits or evaluations of its employees or supervisors. (Exhs. J-6, at 3-4; J-8, at 3-4; Tr. 88, 98-99, 109).

Regarding enforcement of its fall protection policy, the CSHO learned all three crewmembers he had observed working on the platform had been terminated for breaking Williams Brothers’ fall protection policy. (Exhs. J-6, at 3; J-8, at 3; J-18, at 1-4; J-20, at 3; Tr. 61-61, 158). However, prior to this incident, no other Williams Brothers employee had been terminated or otherwise disciplined for breaking its fall protection policy. (Tr. 76, 82-84, 129, 151-52, 159).

Following his investigation, the CSHO concluded Williams Brothers had violated 29 C.F.R. § 1926.501(b)(1) for failing to ensure its three employees at the Dixie Plant had utilized an adequate fall protection system when working at a height above six feet on the elevated platform. (Exhs. J-5, at 1; J-6). Despite Williams Brothers having a fall protection policy on which the three crewmembers had been trained and despite the crewmembers’ employments being terminated for breaking this policy, the CSHO did not believe this was a case of unpreventable employee misconduct because “were no concrete steps the employer took to discover [violations of the fall protection policy], other than Mr. Barrios saying he randomly shows up to different concrete plants.” (Tr. 97-98; see also Exhs. J-6, at 3; J-8, at 3).

The CSHO further concluded Williams Brothers had violated 29 C.F.R. § 1926.1051(a) for failing to provide a ladder or stairway to a personnel point of access with a break in elevation of 19 inches or more to reach the elevated platform on the side of the dust collector. (Exh. J-8).

Based on the CSHO’s investigation, OSHA issued the two-item serious Citation to Williams Brothers.

THE CITATION

The Secretary’s Burden of Proof

In order to establish a violation of an occupational safety or health standard, the Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access to the violative conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions).

Atl. Battery Co., Inc., No. 90-1747, 1994 WL 682922, at *6 (O.S.H.R.C. Dec. 5, 1994).

Applicable Law

 The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer may also appeal to the D.C. Circuit. See 29 U.S.C. §§ 660(a) & (b). Here, the violation occurred in Houston, Texas in the Fifth Circuit, where Williams Brothers’ principal place of business is also located. Where it is highly probable a case will be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case, even though it may differ from the Commission’s precedent. Kerns Bros. Tree Serv., No. 96-1719, 2000 WL 294514, at *4 (O.S.H.R.C., March 16, 2000). Although Williams Brothers points to Fifth Circuit precedent which differs from the Commission on the imputation of supervisor knowledge, the Court does not find that precedent affects the outcome of this case.4 The parties have not identified, and the Court has not found, any other Fifth Circuit precedent differing from the Commission’s on any material issue raised in this case.

Citation 1, Item 1: Alleged Serious Violation of § 1926.501(b)(1)

The Alleged Violation Description

 Citation 1, Item 1 alleges the following:

29 CFR 1926.501(b)(1): Each employee on a walking/working surface with an unprotected side or edge which was 6 feet (1.8m) or more above a lower level was not protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

a) On or about March 17, 2022, at the dixie farm cement plant, a fall protection system was not used while employees worked near an unprotected edge, exposing them to fall hazards greater than 6 feet.

The Cited Standard 

 29 C.F.R. § 1926.501(b)(1) provides: “Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

1. (1)The Applicability of the Cited Standard 

Section 1926.501(b)(1) applies to all “walking/working surfaces with an unprotected side or edge which is 6 feet … or more above a lower level ….” Here, there is no dispute the platform on which the CSHO observed the three Williams Brothers employees working was approximately thirteen feet above ground level, which meets the definition of a “lower level.” See 29 C.F.R. § 1926.500(b) (defining “lower level” as “those areas or surfaces to which an employee can fall” including “ground levels”); see also (Exhs. J-6, at 3; J-8, at 3; J-10, at 5 & 6; J-19, at 3; Tr. 30, 34-35). Williams Brothers does not contest the platform meets the definition of a “walking/working surface,” which is defined broadly as “any surface, whether horizontal or vertical on which an employee walks or works ….” Id. (emphasis added).

The Court finds the standard applies.

(2) Compliance with the Standard’s Terms

Williams Brothers has not disputed the CSHO’s observations, corroborated by photographic evidence, of the three Williams Brothers employees working on the 13-foot platform without any form of fall protection. (Exhs. J-5, at 1; J-6, at 2; J-8, at 2; J-10, at 1 & 2; Tr. 51).

The Court finds Williams Brothers failed to comply with the cited standard.

(3) Employee Access to the Violative Condition

“Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.” Phoenix Roofing, 17 BNA OSHC 1076, 1079 n.6 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996).

Here, the CSHO’s observations and photographs depict the three Williams Brothers employees’ actual exposure to the fall hazard while working on the 13-foot platform without any form of fall protection. (Exhs. J-5, at 1; J-6, at 2; J-8, at 2; J-10, at 1 & 2; Tr. 51). Williams Brothers has not disputed this element of the Secretary’s case.

The Court finds there was actual exposure to the hazard.

            (4) Employer Knowledge

To prove the knowledge element of a violation, the Secretary must demonstrate the employer’s actual knowledge or constructive knowledge of the violation. Jacobs Field Servs., N.A., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015). In the Fifth Circuit, a supervisor’s actual or constructive knowledge of a violation can be imputed to Williams Brothers “under ordinary imputation principles,” where, as here, “a subordinate employee engaged in conduct that violated the standard [and the] supervisor had knowledge of the subordinate’s conduct ….” TNT Crane, 74 F.4th at 359, quoting Angel Bros. Enters., Ltd. v. Walsh, 18 F.4th 827, 832 (5th Cir. 2021); see also Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

On this record, the Court finds Flores was a supervisor at the Dixie Plant for purposes of imputing his knowledge to Williams Brothers. The Commission has held it is the substance of a delegation to an employee, not formal titles, which determines whether or not the employee is a supervisor for imputing knowledge. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000); Dover Elevator, 16 BNA OSHC 1281, 1286 (No. 91–862, 1993). “An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537 (No. 86-630, 1992).

Here, Flores had several designated duties indicative of him being a supervisor at the Dixie Plant. First, he had regular contact with Barrios in the form of a daily email, which contained instructions for the work to be conducted that day. Flores was charged with relaying Barrios’s daily instructions to the other two crewmembers. (Exhs. J-17 & J-17A; Tr. 48, 59, 69, 75-76, 80-82, 117-18, 143). If there were questions about the work to be performed at the Dixie Plant, Flores was tasked with contacting Barrios to clarify the instructions. (Tr. 48-49, 80, 107-08, 143, 161). Flores would also contact Barrios if there were other issues with work proceeding at the Plant. The events in this case are illustrative: Leading up to the CSHO’s inspection, Flores contacted Barrios regarding the sound coming from the bearing and the crew’s intent to investigate the source of the noise. (Exhs. J-6, at 3; J-8, at 3; Tr. 107-08, 121, 145-46). Flores’s duty to maintain regular contact with Barrios and relay his instructions to the other two employees is indicative of his status as a supervisor. See Tampa Shipyards, Inc., 15 BNA OSHC at 1538 n.10 (employee was supervisor where he was “responsible to higher supervision for the progress and execution of the work”); Mercer Well Serv., 5 BNA OSHC 1893, 1894 (No. 76-2337, 1977) (crew chief was supervisor for purposes of the Act where he maintained contact with designated supervisor to relay orders to crew and report problems to that supervisor).

Flores also had responsibilities regarding safety at the Dixie Plant. He was responsible for holding a daily safety meeting, during which he filled out a “STEM” form with the other employees and discussed a daily safety topic. (Exhs. J-16, 16A, 17, 17A; Tr. 48-49, 80-81, 118-19). Although Flores did not have the ability to directly discipline the other employees if they committed a safety violation, he would call Barrios to report any safety issues arising at the Plant. (Tr. 157). If an aerial lift was needed as means of fall protection, it was Flores who would “make the decision and call” Barrios to request the lift. (Tr. 161). Once it arrived onsite, Flores was the sole person at the Dixie Plant certified to operate the aerial lift. (Ex. J-22, at 4; Tr. 98-99, 115). Flores’s safety obligations, although not plenary, are further indicative of his status as a supervisor at the Dixie Plant. See Diamond Installation, Inc., 21 BNA OSHC 1688, 1690 (No. 02-2080, 2006) (finding a “gang foreman” to be a supervisor based, in part, on him being the sole employee responsible for a forklift key and being one of only three employees authorized to operate the forklift); Tampa Shipyards, Inc., 15 BNA OSHC at 1538 (leadman was a supervisor, in part, because he was responsible for informing other supervisors of safety problems at the worksite); cf. TNT Crane & Rigging Co. v. Occupational Safety & Health Review Comm’n, 821 Fed. App’x 348, 354-55 (5th Cir. 2020) (crane operator was a supervisor, in part, because he was designated as the competent person and “was responsible for making sure TNT's crew worked safely and conformed with the Act.”).

Characterization of the Violation

The Secretary characterized the violation of Section 1926.501(b)(1) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result from … one or more practices ….” 29 U.S.C. § 666(k). “This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1824 (No. 88-2572, 1992).

Here, the three Williams Brothers employees were working on the platform thirteen feet above the ground without any form of fall protection. (Exhs. J-6, at 3; J-8, at 3; J-10, at 5 & 6; J-19, at 3; Tr. 30, 34-35). The Court finds serious physical serious harm could result from a fall at this height. See Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. 40,672, 40,682 (Aug. 9, 1994) (to be codified as 29 C.F.R. pt. 1926) (noting the risk of fatality or injury from falling from heights of even six to ten feet). Williams Brothers has advanced no arguments on the classification of the violation.

The Court finds the violation was properly characterized as serious.

Unpreventable Employee Misconduct Defense

Williams Brothers argues its employees’ violations were the result of unpreventable employee misconduct. Resp’t’s Br. 16-20. To establish this affirmative defense, Williams Brothers “must show that it “1) has established work rules designed to prevent the violation, 2) has adequately communicated these rules to its employees, 3) has taken steps to discover violations, and 4) has effectively enforced the rules when violations have been discovered.” S. Hens, Inc. v. Occupational Safety & Health Review Comm’n, 930 F.3d 667, 678 (5th Cir. 2019); see also George Campbell Painting Corp., 18 BNA OSHC 1929, 1933 n.15 (No. 94-3121, 1999). Williams Brothers bears the burden of establishing each element by a preponderance of the evidence. See Excel Modular Scaffold & Leasing Co. v. Occupational Safety & Health Review Comm’n, 943 F.3d 748, 756 (5th Cir. 2019) (employers bear the burden of proof for affirmative defenses); Marson Corp., 10 BNA OSHC 1660, 1662 (No. 78-3491, 1982) (burden of proof for unpreventable employee misconduct defense lies with the employer).

Work Rules & Communication

 The record evidence establishes Williams Brothers had a work rule requiring the use of fall protection above six feet, and a policy of providing aerial lifts to its employees for them to tie off on the basket of the lifts as a means of providing fall protection. (Exhs. J-6, at 3; J-8, at 3; J-14, at 34; J-20, at 2; J-24; Tr. 59-60, 74-75, 109-11, 114-15, 155, 168-69). The record evidence also establishes the three employees involved in the incident at the Dixie Plant were aware of and trained on Williams Brothers’ fall protection policies, including its aerial lift policy. (Exhs. J-6, at 3; J-8, at 3; J-20, at 2-3; J-21, at 1; J-22, J-23; Tr. 60, 75, 96-97, 113-14, 121-22, 136, 152). In her post-hearing brief, the Secretary has not contested either of these elements of Williams Brothers’ affirmative defense.

 The Court finds Williams Brothers had work rules designed to prevent fall protection violations and further finds these rules were adequately communicated to the three employees working at the Dixie Plant.

Monitoring & Discovery of Violations

“Effective implementation of a safety program requires a diligent effort to discover and discourage violations of safety rules by employees.” Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999).

At the outset of analyzing this element of Williams Brothers’ defense, the Court notes the Commission has held a “supervisor’s misconduct is strong evidence that the employer’s safety program is lax.” Stark Excavating, Inc., 24 BNA OSHC 2215, 2220 (No. 09-0004, 2014), aff’d 811 F.3d 922 (7th Cir. 2016); see also Propellex Corp., 18 BNA OSHC at 1682. Here, the Court has concluded Flores was a supervisor at the Dixie Plant, and it is undisputed he participated in the fall protection violation by failing to call for an aerial lift and then proceeding to work alongside the other two employees on the 13-foot platform without any form of fall protection. Flores’s participation in the violation is, therefore, “strong evidence” Williams Brothers’ safety program was lax. See Stark Excavating, Inc., 24 BNA OSHC at 2224; Propellex Corp., 18 BNA OSHC at 1682.

As to the substance of Williams Brothers’ safety program, the only evidence of Williams Brothers’ efforts to “discover and discourage violations” of its fall protection rules were Barrios’s random site visits to the various batch plants he oversaw. (Exh. J-20, at 3; J-21, at 1; Tr. 66-67, 83-84, 97-98, 156, 162, 169-70). According to Barrios himself, these site visits were infrequent, “maybe once a week,” though sometimes more often on an “as needed” basis. (Exh. J-20, at 3; Tr. 136-37, 169-70). However, according to one of the employees interviewed by the CSHO, these visits were sometimes as infrequent as two or three times a month, an assertion affirmed by Barrios. (Exh. J-21, at 1 (“Martin [Barrios] does random check-ups. [redacted] maybe 2 or 3 times a month. Depending on what is going.”); Tr. 157 (agreeing the assertion about site visits in Exhibit J-21 is accurate); see also Tr. 162). These site visits were apparently not documented, or at least Williams Brothers failed to introduce any documentation of them. See TNT Crane & Rigging, Inc., No. 16-1587, 2022 WL 2102910, at *7 (O.S.H.R.C., June 2, 2022) (finding lack of sufficient monitoring where documentation did not reflect the monitoring efforts of remote worksites), aff’d 74 F.4th 347 (5th Cir. 2023); cf. also P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm’n, 115 F.3d 100, 110 (1st Cir. 1997) (finding “the absence of any vestige of documentary proof was not only a relevant datum but a telling one” with regard to employer’s monitoring efforts).

Other than these site visits, Williams Brothers had no other audits or evaluations in place to ensure compliance with OSHA’s regulations on fall protection. (Exhs. J-6, at 3-4; J-8, at 3-4; Tr. 88, 98-99, 109); cf. TNT Crane & Rigging, Inc., 2022 WL 2102910, at *7 (finding insufficient monitoring “absent sufficient evidence to evaluate the frequency of the company’s audits”); Sw. Bell Tel. Co., 19 BNA OSHC 1097 (No. 98-1748, 2000) (worksite visits were inadequate monitoring where there was no evidence that either the program or the worksite visits pertained to enforcing the cited provision), aff’d, 277 F. 3d 1374 (5th Cir. 2001). This point was epitomized in an exchange between the Secretary’s attorney and Barrios at the hearing:

Q: What types of reviews does Williams Brothers conduct to assess if employees are in compliance with OSHA regulations?

A: We don’t.

(Tr. 109).

Indeed, even when directly confronted with a scenario where the use of fall protection might be implicated, Barrios did not monitor the Dixie Plant employees’ use of fall protection. When Flores called Barrios to tell him they intended to inspect the bearing, Barrios did not ask any follow-up questions to determine whether the crew had or would need fall protection to reach the bearing. He simply responded “Okay. Go ahead and do it and be careful. Be safe.” (Tr. 108; see also Tr. 49); cf. also Getty Oil Co. v. Occupational Safety & Health Review Comm’n, 530 F.2d 1143, 1146 (5th Cir. 1976) (reasonable diligence includes the “simple expediency … of making inquiry”).

With Barrios overseeing as many as 31 batch plants, the Court does not find his undocumented site visits, standing alone and occurring as infrequently as twice a month, to be sufficient to establish this element of Williams Brothers’ defense. Cf. Stahl Roofing, Inc., 19 BNA OSHC 2179, 2182 (No. 00-1268, 2003) (adequate supervision found where crews were widely spread geographically but the employer’s supervisors nonetheless were “expected to visit each worksite at least once a day, and the record indicate[d] that they c[a]me close to meeting this goal.”); Propellex Co., 18 BNA OSHC at 1682 (unscheduled site visits standing alone were found inadequate where they failed to detect the cited violations); Paul Betty, 9 BNA OSHC 1379, 1383 (No. 76-4271, 1981) (inadequate supervision found where there was “no evidence that Respondent made any efforts to ascertain whether its safety rules were followed.”).

Enforcement

Finally, to establish unpreventable employee misconduct, Williams Brothers is required to demonstrate it “has effectively enforced [its] rules when violations have been discovered.” S. Hens, Inc., 930 F.3d at 678.

The conventional way to prove the enforcement element is for the employer to introduce evidence of a disciplinary program by which the company reasonably expects to influence the behavior of employees…. To prove that its disciplinary system is more than a “paper program,” an employer must present evidence of having actually administered the discipline outlined in its policy and procedures.

Propellex Corp., 18 BNA OSHC at 1683.

Finally, Flores and the other two employees being “collectively involved in the violative conduct” highlights Williams Brothers’ insufficient enforcement of its work rules related to fall protection. See TNT Crane & Rigging, Inc., 2022 WL 2102910, at *8; Propellex Co., 18 BNA OHC at 1682; Gem Indus., Inc., 17 BNA OSHC 1861, 1865 (No. 93-1122, 1996) (“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.”), aff’d 149 F.3d 1183 (6th Cir. 1998) (table).

The Court finds Williams Brothers has failed to demonstrate effective enforcement of its work rules related to fall protection.

The Court finds the Secretary has established all elements of his burden of proof. Williams Brothers has failed to establish its affirmative defense of unpreventable employee misconduct. Therefore, Citation 1, Item 1 is AFFIRMED as a serious violation.

Citation 1, Item 2: Alleged Serious Violations of § 1926.1051(a)

The Alleged Violation Description

 Citation 1, Item 2 alleges a serious violation of the cited standard as follows:

29 CFR 1926.1051(a): Stairway(s) or ladder(s) were not provided at all personnel points of access where there was a break in elevation of 19 inches (48 cm) or more, or no ramp, runway, sloped embankment, or personnel hoist was provided:

a) On or about March 17, 2022, at the dixie farm cement plant, where employees were not provided ladders to access an elevated work area, exposing them to fall hazards.

The Cited Standard 

 29 C.F.R. § 1926.1051(a) provides: “A stairway or ladder shall be provided at all personnel points of access where there is a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or personnel hoist is provided.”

1. (1)The Applicability of the Cited Standard 

Section 1926.1051(a) applies to “all personnel points of access where there is a break in elevation of 19 inches … or more ….” Here, there is no dispute the employees traversed the conveyor to reach the 13-foot platform on which the CSHO observed them working. (Exhs. J-6, at 3; J-8, at 3; J-10, at 2-6; J-19, at 3; J-20, at 1-2; J-21, at 1-2; Tr. 30, 34-35, 49, 107-08, 145). Likewise, there is no dispute the employees again traversed the conveyor when the CSHO asked them to come down and jumped to the ground from a point on the conveyor which was approximately eight feet from the ground. (Exhs. J-5, at 1; J-6, at 2-3; J-8, at 2-3; J-9, at 6; J-10, at 3; Tr. 55).

Williams Brothers argues the platform is “not an area where the Dixie [Plant] crew was supposed to be conducting any work.” Resp’t’s Br. 14. However, the testimony from Barrios cited by Williams Brothers does not support this contention. Barrios testified: “When the plant is operating correctly, there is no need to be up [on the platform].” (Tr. 141 (emphasis added)). Prior to this statement, Barrios also testified employees would need to access the dustbin “[e]very month if the plant runs every day.” (Tr. 141). Barrios described the optimal method (at least in his view) for employees to access the platform on the dustbin, which involved the use of a ladder: “They would use a portable ladder and set it up next to the catwalk and they just go from ladder to ladder.” (Tr. 141).

Williams Brothers goes on to argue employees needing to work from the top of the conveyor is a “rare occurrence” and when it is performed it generally is performed by a maintenance crew using an aerial lift. Id. at 15. Thus, “this is not a work area requiring a personnel point of access.” Id. This argument is contradicted by the record. Although perhaps not occurring frequently, issues with the Plant’s bearings occurred approximately “every three to four months” when the Plant was in operation. (Tr. 84). And although a maintenance crew was responsible for performing the actual maintenance work on the Plant’s bearings, the Plant crew would assist the maintenance crew with “lighter type maintenance activities.” (Tr. 96; see also Tr. 123 (Barrios testifying the Plant crew might help out the maintenance crew with cleaning and greasing)). Moreover, as evidenced by the events in this case, the Dixie Plant crew was apparently also responsible, at least in the first instance, for investigating potential issues with the Plant’s bearings to determine whether a maintenance crew was necessary. When Flores called Barrios to tell him he intended to investigate the noise coming from the bearing, Barrios did not tell him to wait for a maintenance crew; rather, he gave him permission to investigate the noise and simply told him to “be safe.” (Tr. 49, 108).

The Court finds the Secretary has demonstrated the existence of “personnel points of access where there is a break in elevation of 19 inches … or more” to which the standard applies.

(2) Compliance with the Standard’s Terms

 Williams Brothers does not dispute no ladder was provided to the three employees working on the 13-foot platform or even argue one was available onsite at the time of the CSHO’s inspection. Rather, it argues the Secretary has failed to demonstrate noncompliance for two reasons.

 First, Williams Brothers argues “the conveyor is a piece of equipment that swings back and forth, up to fifteen feet, between concrete mixers, when in operation … It would be impossible to affix any sort of permanent ladder to this piece of equipment.” Resp’t’s Br. 14. However, the standard does not require a specific type of ladder to comply with its terms, only a “ladder” generally. As the definition section for Subpart X, which governs “Stairways and Ladders,” makes clear, there are many types of “ladders” which can satisfy the standard including a “fixed ladder” or a “portable ladder.” See 29 C.F.R. § 1926.1050(b) (defining a “fixed ladder” as “a ladder that cannot be readily moved or carried because it is an integral part of a building or structure”); id. (defining a “portable ladder” as “a ladder that can be readily moved or carried”). Thus, even if it is “impossible to affix [a] permanent ladder” to the conveyor, as Williams Brothers argues, the standard allows for Williams Brothers to provide many kinds of ladders, including a portable ladder, to be in compliance. Indeed, Barrios opined a portable ladder was the preferred method for safely reaching the elevated platform. (Tr. 141).

        Second, Williams Brothers argues the standard allows employers to provide a “personnel hoist” in order to comply with its terms, and, since Williams Brothers provided aerial lifts (or “manlifts” as Williams Brothers refers to them) to its employees at their request, this was sufficient to comply with the standard. Resp’t’s Br. 15. However, an “aerial lift” is different from a “personnel hoist.” Aerial lifts are defined and regulated by Section 1926.453 and generally include different “types of vehicle-mounted aerial devices used to elevate personnel to job-sites above ground …” like the “manlifts” described at the hearing. 29 C.F.R. § 1926.453(a); see also (J-12, at 5 (photograph of an aerial lift)). The criteria for personnel hoists, on the other hand, are set forth in Section 1926.552 and describe a tower-like structure with a “car” operated by a system of “ropes” and “hoists.” See generally 29 C.F.R. § 1926.552(c). Thus, Williams Brothers’ provision of aerial lifts to its employees does not demonstrate compliance with the cited standard.

        The Court finds the Secretary has demonstrated noncompliance with the standard.

(3) Employee Access to the Violative Condition

“Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.” Phoenix Roofing, 17 BNA OSHC at 1079 n.6.

Here, the CSHO directly observed two Williams Brothers employees leave a 13-foot platform to traverse the Plant’s conveyor and jump to ground level from a height of approximately eight feet, all without the use of a ladder. (Exhs. J-5, at 1; J-6, at 2-3; J-8, at 2-3; J-9, at 6; J-10, at 3; Tr. 55). Williams Brothers has not disputed the CSHO’s observations of the two employees’ actual exposure to the hazard.

The Court finds there was actual exposure to the hazard.          

(4) Employer Knowledge

To prove the knowledge element of a violation, the Secretary must demonstrate the employer’s actual knowledge or constructive knowledge of the violation. Jacobs Field Servs., N.A., 25 BNA OSHC at 1218; see also TNT Crane, 74 F.4th at 353. A supervisor’s actual or constructive knowledge of a subordinate employee’s violation is imputed to Williams Brothers under “ordinary imputation principles.” TNT Crane, 74 F.4th at 359; see also Dover Elevator Co., 16 BNA OSHC at 1286.

For the reasons stated above in its analysis of employer knowledge of the fall protection violation, the Court finds Flores was a supervisor at the Dixie Plant. His actual knowledge of the violative condition is therefore imputed to Williams Brothers. See TNT Crane, 74 F.4th at 359. The Court again rejects Williams Brothers’ arguments, incorporated by reference, contending Flores was not a supervisor for purposes of imputing his knowledge. Resp’t’s Br. 16. The Court also rejects Williams Brothers’ argument, incorporated by reference, concerning the necessity of a finding of foreseeability to impute Flores’s knowledge to Williams Brothers. Id.; see also note 5. Finally, because the Court finds actual knowledge of the violation, the Court finds no reason to address Williams Brothers’ arguments on the issue of constructive knowledge. Resp’t’s Br. 16; see also note 6.

The Court finds the Secretary has established all elements of her burden of proof. Therefore, Citation 1, Item 2 is AFFIRMED.

Characterization of the Violation

The Secretary characterized the violation of Section 1926.1051(a) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result from … one or more practices ….” 29 U.S.C. § 666(k). “This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” ConAgra Flour Milling Co., 15 BNA OSHC at 1824.

Here, without the availability of a ladder, the three Williams Brothers traversed the conveyor to reach platform, starting at a height of approximately eight feet and ending at a height of approximately thirteen feet. (Exhs. J-6, at 3; J-8, at 3; J-10, at 2-6; J-19, at 3; J-20, at 1-2; J-21, at 1-2; Tr. 30, 34-35, 49, 107-08, 145). The employees then repeated this action when the CSHO asked them to come down from the platform. (Exhs. J-5, at 1; J-6, at 2-3; J-8, at 2-3; J-9, at 6; J-10, at 3; Tr. 55). The Court finds serious physical serious harm could result from a fall at these heights. See Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. 40,672, 40,682 (Aug. 9, 1994) (to be codified as 29 C.F.R. pt. 1926) (noting the risk of fatality or injury from falling from heights of even six to ten feet). Williams Brothers has advanced no arguments on the classification of the violation.

The Court finds the violation was properly characterized as serious.

PENALTY

When OSHA issues a Citation, it may include a proposed penalty amount. See 29 U.S.C. § 659(a). OSHA has published a Field Operations Manual (FOM) to, among other things, act as a guide for its CSHOs in proposing penalties. FOM at 1.I, 6.I, Directive No. CPL-02-00-163 (eff. Jan. 23, 2023). However, the Commission and its judges conduct de novo penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria. See Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0293, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995); Allied Structural Steel Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975). In determining the appropriate penalty for affirmed violations, section 17(j) of the Act requires the Court to give due consideration to four criteria: (1) the size of the employer’s business; (2) the gravity of the violations; (3) the good faith of the employer; and (4) the employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

 The Citation proposed a total penalty of $22,792, as follows:

For the serious violation of 29 C.F.R. § 1926.501(b)(1), the Citation proposed a penalty of $11,396. This was based on the CSHO’s determination the severity, i.e., the “most likely injury … to occur when the employees are exposed to that particular hazard,” was “high” because any injury from exposure to the fall hazard was “likely to result in death or permanent disability injuries.” (Exh. J-6, at 1; Tr. 42-43). The CSHO also took into account the number of employees exposed, the duration of their exposure, and any precautions taken by Williams Brothers to prevent exposure. (Tr. 43). The CSHO also determined the probability, i.e., the “likelihood that that actual injury will occur,” was “lesser” because of “the amount of employees and the time of exposure.” (Exh. J-6, at 1; Tr. 42, 44). This combination of severity and probability led to the CSHO classifying the violation’s gravity as “moderate” and an initial gravity-based penalty of $10,360. (Exh. J-6, at 1). The CSHO did not apply a reduction based on Williams Brothers’ size as a large employer and did not apply a reduction for good faith. (Exh. J-6, at 1; Tr. 44). Finally, the CSHO applied a ten percent increase in the initial penalty based on Williams Brothers’ inspection history, particularly based on a “serious-high gravity penalty” within the five years preceding this inspection. (Exh. J-6, at 1; Tr. 44).

For the serious violation of 29 C.F.R. § 1926.1051(a), the Citation proposed a total penalty of $11,396. This was based on the CSHO’s determination the violation was of “high” severity “[b]ased on employees being exposed over six feet. They could sustain their death or permanent disability-type injuries.” (Exh. J-8, at 1; Tr. 45). The CSHO also took into account the number of employees exposed, the duration of their exposure, and any precautions taken against potential injury, noting there was no ladder available at all at the Dixie Plant. (Tr. 45-46). On the subject of probability, the CSHO determined it was “lesser” because of “the short duration of exposure.” (Exh. J-8, at 1; Tr. 46). This combination of severity and probability led to the CSHO classifying the violation’s gravity as “moderate” and an initial gravity-based penalty of $10,360. (Exh. J-8, at 1). The CSHO again did not adjust the penalty for size or good faith and applied a ten percent increase based on Williams Brothers’ inspection/citation history. (Tr. 46).

The Secretary asks the Court to assess all of the proposed penalties; Williams Brothers has advanced no arguments specific to the penalty amount.

Having weighed the relevant factors, the Court finds the proposed penalties for both violations are appropriate and therefore assesses them for each of the Citation items. The Court finds the CSHO’s determinations as to the violations’ gravity accurately accounted for the severity and probability of harm for each of the subject violations and accounted for environmental factors such as the number of employees exposed, the duration of their exposure, and Williams Brothers efforts (or lack thereof) to prevent the violations. Williams Brothers has not argued a reduction for good faith is warranted, and the Court finds no basis in the record to reduce the penalties on that basis. With over 1,700 workers, Williams Brothers is a large employer, and the Court therefore finds no basis to reduce the penalty based on size. Cf. FOM, at 6.III(B)(4)(b). Williams Brothers has not challenged the CSHO’s representations as to its violation history, and the Court therefore adopts his increase of ten percent based on history.

The Court therefore assesses the proposed penalty of $11,396 for each of the Citation items.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a) and Commission Rule 90(a), 29 C.F.R. § 2200.90(a).

ORDER

  Based on the foregoing decision, it is hereby ORDERED:

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is AFFIRMED, and a penalty of $11,396 is assessed;

2. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.1051(a), is AFFIRMED, and a penalty of $11,396 is assessed;

SO ORDERED.

/s/___________________________

             Sharon D. Calhoun

             Administrative Law Judge, OSHRC

Dated:  December 26, 2023       

         Atlanta, GA