United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

APPEARANCES:

  For the Complainant:

     R. Peter Nessen, Esq.

     Senior Trial Attorney

     U.S. Department of Labor

     Boston, Massachusetts

  For the Respondent:

     Richard J. Antonelli, Esq.

     Brian D. Lipkin, Esq.

     Babst, Calland, Clements and Zomnir, P.C.

     Pittsburgh, Pennsylvania

BEFORE:   William S. Coleman

     Administrative Law Judge

The Respondent, Outfront Media, Inc. (Outfront), is a corporation in the business of outdoor advertising. One of the thousands of billboards that Outfront owns and maintains nationwide is located on N. Main Street in Waterbury, Connecticut. On October 5, 2017, a compliance safety and health officer (CO) from the Occupational Safety and Health Administration (OSHA) observed Outfront employees working on that billboard while more than four feet above ground level without any means or method of fall protection. (T. 24). An OSHA inspection and investigation ensued that resulted in OSHA issuing to Outfront a serious citation (Citation) that alleged three grouped violations (designated citation items 1a, 1b & 1c) and that proposed a penalty of $12,675.

Item 1a alleges a violation of 29 C.F.R. § 1910.28(b)(1)(i) for failing to ensure that employees repairing the billboard on October 5, 2017 “were protected from the hazard of falling more than four feet to the ground” by using appropriate means or methods of fall protection.

Item 1b alleges a violation of 29 C.F.R. § 1910.30(a)(3)(i) for failing to ensure that employees repairing billboards “were trained in fall hazards and how to avoid such hazards.”

Item 1c alleges a violation of 29 C.F.R. § 1910.132(d)(1) for failing to “ensure that a Workplace Hazard Assessment in ‘tasks and sites’ specifics was conducted to determine necessary and appropriate types of personal protective equipment (PPE) for the employees” who would be repairing the billboard on October 5, 2017.

Outfront timely contested the Citation and proposed penalty and thereby brought the matter before the independent Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act (Act). 29 U.S.C. § 659(c). The Commission docketed the matter on December 21, 2017. The Secretary of Labor (Secretary) thereafter filed his formal complaint that re-alleged the allegations and proposed penalty set forth in the Citation. The Commission’s Chief Judge assigned the matter to the undersigned for hearing and decision. The hearing was conducted in Hartford, Connecticut, on November 8–9, 2018. Post-hearing briefing was completed on May 10, 2019.

The principal issues for decision are as follows:

Decision: No. The Secretary did not prove Outfront had constructive knowledge of the violative conduct.

Decision: No. The evidence is insufficient to establish that a reasonably prudent employer would have provided different training.

Decision: No. Outfront conducted a hazard assessment that met the requirements of the cited standard.

Because the Secretary did not meet his burden of proof on these issues, all three citation items must be vacated.

FINDINGS OF FACT

The following facts were established by at least a preponderance of the evidence:

Fall Protection Training

In any situation where an employee is exposed to a potential fall hazard of greater than four (4) feet for general industry activities … fall protection equipment shall be used to limit all free fall hazards to six (6) feet or less in accordance with applicable OSHA requirements, OUTFRONT safety rules, and jobsite conditions. All employees performing services on sign structures MUST wear a full body harness with shock-absorbing lanyards and double pelican hooks, and/or a self-retracting lifeline as necessary or required, provided by management. Management’s intent is for each employee to be tied off 100 % while working on the billboard. Employees MUST BE AT ALL TIMES attached to permanent safety cables or other appropriate anchorages while working on [Outfront’s] sign structures. If permanent safety cables are not in place, alternative fall protection equipment and methods MUST be used.

(Ex. R-9 (emphases in original)).

Any employee who observes or suspects an unsafe condition is obligated to terminate any further activity on the jobsite, and immediately report the condition to the [Outfront] Operations Manager who will immediately RED TAG that jobsite as out-of-service until such time that proper repairs and/or corrections can be made to ensure a safe and healthy workplace.

(Id. (emphasis in original)).

Workplace Hazard Assessments

General Hazard Assessments

Site-specific Hazard Assessments

Reasonable Diligence in Discovering Fall Protection Violations

Outfront’s Fall Protection Policies

Progressive Discipline for Fall Protection Violations

Random, Unannounced Worksite Observations

Events Preceding the Issuance of the Citation

Employee Discipline for Violation of Fall Protection Policy in March 2017

The Crew’s September 2017 Site Visit

The Crew’s Failure to Use Fall Protection PPE on October 5, 2017

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon Outfront’s timely filing of a notice of contest. 29 U.S.C. § 659(c). Outfront has employees and is engaged in a business affecting commerce, and thus meets the Act’s definition of “employer.” 29 U.S.C. § 652(5).

All items in the Citation allege violations of safety standards promulgated pursuant to section 6(b) of the Act. 29 U.S.C. § 655(b). To establish a violation of such a standard, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) employees were exposed to or had access to the violative condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Atl. Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994); Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

The three alleged violations, which the Secretary has grouped and proposed a single penalty for all three,7 are addressed below in the following sequence: the training violation (Item 1b); the hazard assessment violation (Item 1c); the fall protection violation (Item 1a).8

Item 1b – Section 1910.30(a)(3)(i) – Fall hazard training

  Citation Item 1b alleges a violation of 29 C.F.R. § 1910.30(a)(3)(i), which provides that “[t]he employer must train each employee in … : (i) The nature of the fall hazards in the work area and how to recognize them.”9

Item 1b alleges that Outfront violated this standard on October 5, 2017 in that it “did not ensure that the employees exposed to fall hazards while performing ‘tasks’ from the vertically structured billboards were trained in fall hazards and how to avoid such hazards.”

To establish non-compliance with a training standard, the Secretary must show the cited employer failed to provide the instructions that a reasonably prudent employer would have given in the same circumstances. N&N Contractors, Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000), aff’d, 255 F.3d 122 (4th Cir. 2001), citing Archer-W. Contractors, Ltd., 15 BNA OSHC 1013, 1019-20 (No. 87-1067, 1991) aff’d, 978 F.2d 744 (D.C. Cir. 1992), and El Paso Crane & Rigging Co., Inc., 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993). Where an employer has provided the type of training at issue, the Secretary must “show some deficiency in the training provided.” Id., quoting Am. Sterilizer Co., 18 BNA OSHC 1082, 1086 (No. 91-2494, 1997). As discussed below, the Secretary failed to prove that a reasonably prudent employer would have provided any different or additional training than Outfront provided in the nature of the fall hazards associated with working on billboards, and how to recognize those fall hazards.

The Secretary stipulated that Outfront provided employees certain fall protection training (Stipulation at T. 176) and does not claim that Outfront provided no training at all on the nature of fall hazards and how to recognize them. Rather, the Secretary argues that Outfront’s fall protection training was deficient in the following three particulars: (1) that the training did not address the fall hazards associated with working on poster billboards (Sec’y Br. 8-9); (2) that the “100% tie-off” policy was “contradictory and confusing” (Sec’y Br. 9-12); and (3) that the training on anchorage points was vague and confusing. (Sec’y Br. 12-13).

The Secretary’s contention that Outfront’s training was inadequate must be considered within the context of Outfront’s training program as a whole. Accordingly, Outfront’s actual training program is reviewed first, followed by consideration of the Secretary’s asserted deficiencies in that training.

The Policy on which Outfront employees are trained states that “[i]n any situation where an employee is exposed to a potential fall hazard of greater than four (4) feet … fall protection equipment shall be used ….” (Ex. R-9). Likewise, the Manual provided to each employee emphasizes that fall hazards are “one of the most common hazards” in the workplace when working at height. (Ex. C-20, p. 11). Outfront’s fall protection rule, nominally called the “100% tie-off” policy, served to emphasize the presence of fall hazards associated with working at height on billboards and that the use or presence of adequate fall protection was an imperative. (Findings of Fact, ¶¶ 38-40). Mr. Bourne frequently reminded the employees at the North Haven office of the existence of fall hazards on billboards and the imperative of complying with the fall protection rule. (T. 158-59). One member of the four-person crew that the CO observed working on the Waterbury billboard corroborated the frequency of Bourne’s exhortations, remarking that the fall protection policy was “beaten into our heads.” (T. 298). The existence of a written work rule to address the fall hazards associated with work on billboards, and frequent reinforcement of that work rule from management, have been recognized as components of an adequate training program. See Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2087 (No. 06-1542, 2012) (noting safety handbook and “100-percent tie off” rule as aspects of an adequate fall protection training program); N&N Contractors, 18 BNA OSHC at 2127 (employer’s “written work rule” and meetings to “reinforce company safety policy” were evidence of the adequacy of fall protection training under the construction industry fall protection training standard at 29 C.F.R. § 1926.503(a)(1)).10

Outfront provides both initial training in fall protection and annual refresher training (semi-annual refresher training at the North Haven office) in a group setting. (Findings of Fact, ¶¶ 14 & 22). Each of the employees the CO observed on the Waterbury billboard received initial training in fall protection and semi-annual refresher training, with Mr. Trudel having received this formal training twelve separate times during his tenure with Outfront. (Findings of Fact, ¶ 26; T. 140). The written tests and PowerPoint presentation utilized during this training identified the fall hazards inherent in working at height on billboards and emphasized the imperative of adequate fall protection. (Exs. C-21 & R-13). Mr. Bourne delivered the PowerPoint presentation “slide by slide” and solicited employee questions. (Findings of Fact, ¶ 17). The employees also received practical instruction on the use of fall protection equipment, both in a classroom setting and a field setting on an actual billboard. (Findings of Fact, ¶ 16(e), (f)). These elements of Outfront’s training have been recognized as elements of an adequate training program. See S.J. Louis Constr. of Tex., 25 BNA OSHC 1892, 1898-99 (No. 12-1045, 2016) (finding a PowerPoint presentation which served as a “discussion guide” and the use of “performance tests” were aspects of an effective training program); Thomas Indus., 23 BNA OSHC at 2087 (fall protection training received during employee orientation or “a comparable refresher course” and “‘hands-on’ training” were aspects of an adequate fall protection training program); N&N Contractors, 18 BNA OSHC at 2127-28 (training received at the employer’s corporate office and at the work site were evidence of the adequacy of fall protection training under the construction industry fall protection training standard).

Outfront’s billboards have varying configurations respecting the presence of certified or improvised anchorages, and Outfront’s training instructed employees on the recognition of suitable improvised anchor points. (Findings of Fact, ¶¶ 13(b), 17(a)-(d), 19, 20, 35). Outfront’s training on anchorages included real world examples of “good” (i.e., suitable) and “bad” (i.e., unsuitable) improvised anchor points. (Findings of Fact, ¶¶ 17(c) & (d), 20). See El Paso Crane & Rigging Co., 16 BNA OSHC at 1426 (observing that where appropriate fall protection must be selected on a “situation-by-situation basis,” and that “a company that tells its employees what fall protective equipment is available and describes its use, or the circumstances in which it must be used, may quite conceivably be doing all that anyone could reasonably do.”). With respect to identifying suitable improvised anchorages, Outfront instructed its employees to employ a widely known rule of thumb known as the “truck test” in assessing whether an improvised anchor point will withstand a 5,000-pound load. (Findings of Fact, ¶ 19). See 29 C.F.R. § 1910.140(c)(13)(i) (providing that anchorages be “[c]apable of supporting at least 5,000 pounds … for each employee attached”).11

As described below, the Secretary has not established that a reasonably prudent employer would have provided substantially different or additional training under the circumstances than Outfront provided, and thus has not shown that Outfront’s training was inadequate.

First, the Secretary argues Outfront’s training did not address fall hazards that are peculiar to poster billboards like the Waterbury billboard involved here. (Sec’y Br. 8). This argument is rejected. The greater weight of the evidence is that the hazards associated with working on bulletin billboards and poster billboards are similar, if not substantially identical. (Findings of Fact, ¶ 5). The fact that bulletin billboards are generally more recently constructed, are more likely to have certified anchorages, and are higher off the ground than poster billboards does not alter the fact that fall hazards exist with either type of billboard involving employees working at heights of four feet and higher. (Findings of Fact, ¶ 5). Outfront’s training was reasonably geared to address fall hazards present on both types of billboards, as is corroborated by evidence that employees at the North Haven office routinely worked on poster billboards and demonstrated proficiency in complying with Outfront’s fall protection policy in doing so. (T. 243, 271-73, 297, 367; Ex. R-5, Bates pp. 254, 319).

In support of the argument that the training was inadequate with respect to fall hazards unique to poster billboards, the Secretary relies on Mr. Trudel’s testimony that he was not trained in fall protection for poster billboards. (T. 109-10). Mr. Trudel’s testimony in this regard was conclusory and unconvincing. Mr. Trudel did not describe how the training he received was somehow not apt to poster billboards generally, or the Waterbury poster billboard specifically. (T. 110). To the contrary, Mr. Trudel had been observed at least twice before this incident working on poster billboards while properly using PPE for fall protection. (T. 188, 193-94; Ex. R-5, Bates pp. 254 & 319). The preponderant evidence establishes that Outfront’s employees at the North Haven location, including Mr. Trudel, had been trained in recognizing and addressing the fall hazards associated with working on a poster billboard, Mr. Trudel’s unconvincing, conclusory testimony to the contrary notwithstanding.

The Secretary also argues that the testimony of the expert witness for Outfront that “some equipment” is appropriate for use on bulletin billboards but not poster billboards demonstrates that Outfront’s training was deficient with respect to working at heights on poster billboards. (T. 401-402). That testimony does not diminish the expert’s stated and reasonably supported conclusion that Outfront’s fall protection training addressed appropriate PPE to be used under varying circumstances, including the type of billboard involved. (T. 375, 380-81, 386-87; Ex. R-17, p. 6). See El Paso Crane & Rigging Co., 16 BNA OSHC at 1426 (“[a]n employer's instructions are not necessarily deficient just because they allow the employees discretion as to how to proceed, particularly where the working circumstances are such that no one form of protection is capable of being used every time”).

Moreover, the cited standard simply requires training on the “nature of the fall hazards in the work area and how to recognize them.” 29 C.F.R. § 1910.30(a)(3)(i). Even though some fall protection PPE may be apt only for bulletin billboards, this does not establish that Outfront’s training was deficient with respect to recognizing the nature of fall hazards common to both bulletin and poster billboards. (Findings of Fact, ¶ 5). The Secretary simply did not adduce evidence that specifically identified how the training Outfront provided was inapt or deficient with respect to work on poster billboards.

The Secretary has not established that a reasonably prudent employer would have provided different or additional training to what Outfront provided relating to poster billboards.

The Secretary next argues Outfront’s “100% tie-off” policy was “contradictory and confusing” because Outfront acknowledged that tying off was not required in circumstances where a billboard was constructed with an engineered “passive” fall protection system such as a guardrail system. (Sec’y Br. 9-12). The Secretary notes that Outfront trained employees that fall protection PPE was not required where adequate “passive” systems were in place, so that the “100% tie-off” policy was in actuality a “100% fall protection” policy. (Sec’y Reply Br. 2).

While this characterization of Outfront’s nominal “100% tie-off” policy is accurate, the evidence is insufficient to support the conclusion that employees were confused or misunderstood the import of Outfront’s fall protection rule. See Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001) (a work rule is sufficiently precise where it “requires or proscribes certain conduct and … is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.”) (quoting J.K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076 (No. 12345, 1977) aff’d, 319 F.3d 805 (6th Cir. 2003)). The term “100% tie-off” is a vernacular expression to epitomize a policy that required the use of some form of appropriate fall protection whenever working at height on a billboard. (Findings of Fact, ¶ 38 & 39). In Outfront’s work environment, the use of appropriate fall protection almost always entailed the use of fall protection PPE because very few of Outfront billboards were constructed with engineered “passive” fall protection systems that obviated the need for workers to wear and use (by “tying-off”) fall protection PPE. (Findings of Fact, ¶ 40). The Secretary’s parsing and deconstruction of phrases and sentences in Outfront’s Policy (Sec’y Br. 10-11; Ex. R-9), though showing that the Policy probably could have been stated with greater precision and clarity, does not establish that the language employed was insufficiently precise or clear to communicate to Outfront’s employees the Policy’s main idea — that the use of appropriate fall protection was an imperative at all times when working at height.

Further, the evidence established that Outfront’s training imparted the knowledge and understanding that enabled employees to recognize whether any given billboard was configured with an engineered “passive” fall protection system. (Findings of Fact, ¶¶ 40 & 43). It is apparent that the Waterbury billboard, an aging poster billboard that was in visible disrepair (T. 202, 221-22), had no such engineered fall protection system (T. 109, 217), and that any employee who had completed Outfront’s training would have recognized this. (Findings of Fact, ¶ 43 & 73). Mr. Trudel recognized “that there were no safety cables designed or on this board to utilize” on the Waterbury billboard. (T. 109). Mr. Trudel was not credible in testifying that he regarded the two horizontal members of the billboard structure that he was standing in between (the angle iron behind him and a 2x6 inch board in front of him, both at about pelvis height), in combination with the makeshift work platform on which he was standing (that the crew had created by placing an unsecured 2x8 inch board across three supports), constituted an adequate passive rail system that negated the need to tie-off with fall protection PPE. (T. 109-11, 226, 260; Exs. C-1, C-4, C-8, C-12 through C-16). Instruction provided to Mr. Trudel and the other employees regarding guardrail systems included instruction that such systems are engineered into the billboard. (T. 215). Mr. Trudel understood this. (T. 109-110). Given Mr. Trudel’s training and his approximate 10 years of experience working on billboards with both Outfront and with two other outdoor advertising companies (T. 100), his stated belief that the makeshift 2x8 wood platform he stood on, the horizontal angle iron behind him, and the horizontal 2x6 in front of him, provided fall protection that was an appropriate alternative means of fall protection on a billboard that was about 40 years old and falling apart, strains credulity and is simply beyond belief. (See T. 396-97). While the CO apparently accepted Trudel’s explanation at face value (T. 93-94), the undersigned as the finder of fact is obliged to evaluate his testimony in light of other evidence in the record to which the testimony can be compared and to examine the testimony for internal consistency and intuitive plausibility. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[F]actors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’s story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).

Contrary to the Secretary’s contention, the evidence is insufficient to establish that the nominal “100% tie-off” policy lacked sufficient clarity or generated confusion among Outfront workers regarding the imperative to be protected by some form of adequate fall protection, whether “active” or “passive,” at all times while working at height. The evidence is further insufficient to establish that an employee receiving Outfront’s training would not be competent to recognize what forms of fall protection were available on a given billboard. The Secretary has thus failed to identify any deficiency in Outfront’s training with regard to its “100% tie-off” policy. Cf. Paul Betty, 9 BNA OSHC 1379, 1383 (No. 76-4271, 1981) (finding that work rule had not been adequately communicated where the senior employee at the jobsite did not recognize that a situation called for the work rule to be implemented).

Finally, the Secretary argues that Outfront’s training regarding anchor points is vague and confusing in that (1) “Outfront fails to explain how” the topics of “‘good’ anchorage points, and approved load of anchorage points, work together,” and (2) Outfront’s training on the “truck test” (for assessing whether a potential improvised anchorage is suitable) was flawed because one employee’s testimony suggested that he did not accurately comprehend the test. (Sec’y Br. 12-13).

Outfront’s training materials are sufficiently explanatory to defeat the Secretary’s first criticism. The training materials and the training provided employees make sufficiently clear that anchor points must be suitable, and that suitable (i.e., “good”) anchor points include engineered anchorages and suitable improvised anchorages. (Findings of Fact, ¶¶ 13(b), 17(a)-(d), 19, 20).

In support of his second criticism, the Secretary cites to testimony from an Outfront employee in which the employee misstated the minimum rating for an improvised anchor point, which is 5,000 pounds. See 29 C.F.R. § 1910.140(c)(13)(i). It is apparent from the cited testimony that the employee confused the approximate weight of a full-size pickup truck with its load capacity, which is less than its weight. (T. 290, 311). This apparent confusion notwithstanding, the totality of the employee’s testimony established that he understood the “truck test” and how to apply it in identifying appropriate improvised anchor points. (T. 168, 289-90, 383). The witness’s confusion on the nomenclature used to describe a truck’s load capacity does not establish that it is inappropriate for a reasonably prudent employer to instruct employees on using the “truck test” in identifying appropriate improvised anchor points. Cf. Paul Betty, 9 BNA OSHC at 1383 (employee was inadequately trained where he had only a “general awareness of the cited standards’ requirements”).

The Secretary failed to prove that the fall protection training Outfront provided was deficient. Accordingly, Item 1b of the Citation must be vacated.

Item 1c – Section 1910.132(d)(1) – Hazard assessment

Item 1c alleges a violation of section 1910.132(d)(1), which provides in relevant part that “[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].” Item 1b alleges that Outfront violated this standard with respect to the Waterbury billboard in that Outfront “did not ensure that a Workplace Hazard Assessment in ‘tasks and sites’ specifics was conducted to determine necessary and appropriate types of [PPE] for the employees who were assigned to perform ‘tasks’ from vertically structured billboards.”

In 2007 and again in 2016, Outfront conducted formal general companywide hazard assessments. (Findings of Fact, ¶¶ 28-32). These general assessments are insufficient by themselves to meet the requirements of section 1910.132(d)(1), because they lacked an assessment of the particularities of any specific billboard, including the Waterbury billboard. See Wal-Mart Distrib. Ctr. #6016, 25 BNA OSHC 1396, 1398-1400 (No. 08-1292, 2015) (affirming violation of section 1910.132(d)(1) upon concluding that a hazard assessment conducted at one facility was insufficient to meet requirement to conduct a hazard assessment for a different facility, in part because the employer “never verified the equivalency of the conditions between the two facilities”), aff’d in relevant part, 819 F.3d 200 (5th Cir. 2016).

The preponderant evidence established that Outfront conducted a site-specific hazard assessment of the Waterbury billboard on September 20, 2017 in conjunction with the site inspection that the four employees conducted before the start of work on that billboard on October 5, 2017. (Findings of Fact, ¶¶ 62-66). Implicit in Mr. Bourne’s instruction that the employees “check board” (Ex. R-1, p. 2) and “stop by and look at” the billboard (T. 201-02) was a directive to conduct a hazard assessment for possible safety hazards, including fall hazards, and determine what safety equipment was necessary to complete the work. (Findings of Fact, ¶ 62). All four employees understood this to be an implied task as a result of their knowledge, training, and experience. (Findings of Fact, ¶ 63). Moreover, all four employees were competent persons capable of assessing the billboard for hazards and determining what PPE would be necessary to address those hazards in the course of making needed repairs to the billboard. (Findings of Fact, ¶ 64; T. 203, 209-10; Ex. R-17, p. 11). See section 1910.140(b) (defining the term “competent person” to mean “a person who is capable of identifying existing and predictable hazards in any personal fall protection system or any component of it, as well as their application and uses with related equipment ….”). Mr. Trudel confirmed this to be his implicit understanding when he acknowledged that he knew that among the reasons for inspecting the billboard before beginning work on it was to make sure that the crew could work safely, notwithstanding that the crew was not explicitly instructed to do so. (T. 135-36).

The Secretary argues that a provision in the Policy precluded delegating the task of conducting a site-specific hazard assessment to non-managerial employees. (Sec’y Br. 14-15). The provision to which the Secretary points provides as follows: “Management, with employee participation, will make a hazard assessment and determine the [PPE] required for the task assigned.” (Ex. R-9).

The cited standard does not prohibit an employer from delegating the task of conducting a hazard assessment to non-managerial employees. See N&N Contractors, 18 BNA OSHC at 2127 (employer may allow properly trained employees discretion in how to proceed with work and determining the PPE that is required in view of the work process selected); El Paso Crane & Rigging Co., 16 BNA OSHC at 1426 (where necessary PPE will vary on a “situation-by-situation basis … a company that tells its employees what fall protective equipment is available and describes its use, or the circumstances in which it must be used, may quite conceivably be doing all that anyone could reasonably do.”). Even if the delegation of this task to the work crew is regarded as being contrary to the recital in the Policy quoted above, that variance does not equate to a violation of the cited standard. See Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) (consolidated) (“An employer’s safety recommendations do not establish that such precautions were necessary in order to comply with a standard.”), aff’d, 764 F.2d 32 (1st Cir. 1985). The employees’ site visit met the requirement of section 1910.132(d)(1) to conduct a hazard assessment. See Wal-Mart Distrib. Ctr. #6016, 25 BNA OSHC at 1399; El Paso Crane & Rigging Co., 16 BNA OSHC at 1426; Infra-Red Bldg. & Power Svc., Inc., No. 17-1511, 2019 WL 5893218 at *13-14 (O.S.H.R.C.A.L.J, Oct. 7, 2019) (finding that training employees to assess a job site and determine what type of PPE should be worn was “consistent with” 29 C.F.R. § 1910.132(d)(1)); see also Nonmandatory Compliance Guidelines for Hazard Assessment and Personal Protective Equipment Selection, App’x B to Subpart I of 29 C.F.R. pt. 1910 (indicating that a “walk-through” survey of a worksite conducted by a “safety officer” is a component of an adequate hazard assessment).

The Secretary further argues that because Outfront’s training was deficient, the employees could not be regarded to be “competent persons” to assess what fall protection PPE would be required to work on the Waterbury board, so that any hazard assessment the employees’ conducted was inadequate. However, as found in discussing Item 1b of the Citation, the Secretary failed to establish that Outfront’s training was deficient. The employees, as competent persons in the area of identifying and recognizing fall hazards, were capable of conducting a hazard assessment of the Waterbury billboard and determining what fall protection measures were necessary to safely complete the work. See El Paso Crane & Rigging Co., 16 BNA OSHC at 1426; cf. Baker Tank Co., 17 BNA OSHC 1177, 1179 (No. 90-1786-S, 1995) (recognizing that properly instructed employees can carry out an employer’s duties under the Act).

Finally, the Secretary points to uncontroverted evidence that Outfront did not prepare a written certification that documented the site-specific hazard assessment that the employees conducted. (Sec’y Br. 16). Such a written certification is required by section 1910.132(d)(2).12 However, the citation item alleges that Outfront failed to conduct a hazard assessment, not that Outfront failed to properly document that it had done so. See Jake’s Fireworks, Inc., 26 BNA OSHC 1738, 1750 n.10 (No. 15-0260, 2017) (ALJ) (finding that, although lack of a written certification was “strong evidence” that no hazard assessment occurred, it was not sufficient to prove a violation of sec. 1910.132(d)(1)) aff’d, 893 F.3d 1248 (10th Cir. 2018). As previously described, Outfront conducted a hazard assessment that met the requirements of the cited standard, section 1910.132(d)(1).

The Secretary has not proven that Outfront’s site-specific hazard assessment of the Waterbury billboard did not meet the requirements of section 1910.132(d)(1). Accordingly, Item 1c of the Citation is vacated.

Item 1a – Section 1910.28(b)(1)(i) – Protection from fall hazards

Item 1a alleges a violation of section 1910.28(b)(1)(i), which provides:

(b) Protection from fall hazards--(1) Unprotected sides and edges. (i) Except as provided elsewhere in this section, the employer must ensure that each employee on a walking-working surface with an unprotected side or edge that is 4 feet (1.2 m) or more above a lower level is protected from falling by one or more of the following:

(A) Guardrail systems;

(B) Safety net systems; or

(C) Personal fall protection systems, such as personal fall arrest, travel restraint, or positioning systems.

The Citation alleges that Outfront violated the standard because it “did not ensure that the employees who were performing ‘tasks’ from the vertically structured billboards were protected from the hazard of falling more than 4 feet to the ground by the use of appropriate personal fall arrest systems/devices or utilizing other means [or] methods.”

  Outfront contests only the “knowledge” element of the Secretary’s burden of proof, contending that the evidence is insufficient to establish that Outfront knew, or with the exercise of reasonable diligence could have known, of the violative conduct. The Secretary does not contend that Outfront had actual knowledge of the employees’ violative conduct, arguing only that he proved constructive knowledge.13 (Sec’y Br. 17-19). As described below, the Secretary has failed to carry his burden to prove constructive knowledge.

To prove constructive knowledge, the Secretary must show that Outfront’s lack of actual knowledge of a violative condition was due to a failure to exercise reasonable diligence. See Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). “In assessing reasonable diligence, the Commission considers several factors, including an employer’s obligations to implement adequate work rules and training programs, adequately supervise employees, anticipate hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr., 25 BNA OSHC at 1894. The regular enforcement of disciplinary procedures also bears on whether an employer exercised reasonable diligence. See Thomas Indus. Coatings, 23 BNA OSHC at 2088-89. Whether an employer has exercised reasonable diligence is a question of fact that will “vary with the facts of each case.” Martin v. OSHRC, 947 F.2d 1483, 1485 (11th Cir. 1991).

The Secretary argues Outfront failed to exercise reasonable diligence because: (1) it lacked adequate work rules and training (Sec’y Br. 19); (2) it failed to adequately supervise employees (Id. at 18-19); and (3) it failed to adequately assess the Waterbury billboard work site for potential hazards (Id. at 18). Each of these arguments is addressed in turn.

In arguing that Outfront’s employees lacked adequate training and work rules, the Secretary relies on his arguments made in connection with the alleged training violation (Item 1b) that Outfront’s fall protection training was inadequate. As the discussion above rejecting those arguments concluded, the Secretary failed to prove that a reasonably prudent employer would have provided fall protection training that was substantially different than the training Outfront provided, including training respecting the nature of fall hazards on poster billboards and how to recognize them. The Secretary similarly failed to establish that Outfront’s work rule, nominally identified as the “100% tie-off” policy, lacked sufficient clarity or generated confusion among Outfront workers regarding the imperative to be protected by some form of adequate fall protection at all times while working at height.

The Secretary argues Outfront failed to adequately supervise its employees. In support of this argument, the Secretary faults Outfront for having no managerial or supervisory employee in charge of the crew, and propounds the following rhetorical question: “If an employer can avoid responsibility by placing no one in charge, then why would the employer ever do so?” (Sec’y Reply. Br. 4).

Longstanding precedent holds that the presence of supervisory personnel at a worksite is not a sine qua non of adequate supervision. See N. Y. State Elec. & Gas Corp. v. Sec’y, 88 F.3d 98, 109 (2d Cir. 1996) (“Insisting that each employee be under continual supervisor surveillance is a patently unworkable burden on employers.”); Stahl Roofing, Inc., 19 BNA OSHC 2179, 2182 (No. 02-1024, 2003) (employer whose practice was not to assign supervisory personnel to be present fulltime at widespread worksite locations determined not to have had constructive knowledge of employee’s violative conduct). Rather, in assessing the adequacy of employee supervision, the Commission looks to the whole of an employer’s monitoring, compliance, and disciplinary efforts, viewed in light of any past violative conduct of employees. See Stahl Roofing Inc., 19 BNA OSHC at 2182-83; Hackensack Steel Corp., 20 BNA OSHC 1387 (No. 97-0755, 2003); Sw. Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000); Michael Barr, No. 19-0258, 2019 WL 7176889, at *9-10 (O.S.H.R.C.A.L.J., Nov. 18, 2019).

The Secretary has not established that Outfront failed to exercise reasonable diligence in the supervision and monitoring of its work crews. Outfront supervisors conduct random field observations of employees working on various billboards at least four times a month. (Findings of Fact, ¶¶ 49 & 50). Employees who fail to comply with Outfront’s Fall Protection Policy receive significant discipline for both a first and a second violation, with the sanction for the second violation being termination of employment. (Findings of Fact, ¶ 47). These are attributes of an effective monitoring and enforcement program. Cf. Thomas Indus. Coatings, Inc., 23 BNA OSHC at 2087-88 (disciplinary program where the entire crew could be suspended without pay if one member violated fall protection policies); Stahl Roofing, Inc., 19 BNA OSHC at 2182 (progressive disciplinary program ranging from oral reprimand to termination); N.Y. State Elec. & Gas Corp., 19 BNA OSHC at 1229 (enforcement program calling for random site inspections).

Outfront supervisors had observed one or more of the three employees who were violating the fall protection policy on October 5, 2017 at about 90 different worksites between January 2014 and October 2017, and at each of those worksites the employees had been following Outfront’s fall protection work rules. (Findings of Fact, ¶ 53). In the two instances in which the employees were determined to have violated Outfront’s Fall Protection Policy, they were disciplined according to Outfront’s progressive discipline policy. (Findings of Fact, ¶¶ 60, 80).

The Secretary argues the absence of a foreman or other supervisor on the four-person crew is particularly “jarring given … Outfront’s understanding of these employees’ safety history.” (Sec’y Br. 18). The record is silent with respect to whether Outfront increased monitoring of these employees following their violation of the fall protection rule in March 2017. Cf. Hackensack Steel Corp., 20 BNA OSHC at 1389 (noting that multiple previous OSHA violations should have led the foreman to do “more to discover safety violations than he did.”). Nevertheless, the record does show that all or some of the four employees on that crew were subject to site observations at least 13 times from April through September 2017, and that each time they were following safety rules. (Findings of Fact, ¶ 61). Given the overall positive record of employee compliance with the fall protection rule, and the incentives in place for employees to follow that policy in order to avoid the severe discipline mandated by Outfront’s progressive discipline policy, the Secretary has not established that Outfront failed to exercise reasonable diligence in its supervision and monitoring of its employees working in the field. See Stahl Roofing, Inc., 19 BNA OSHC at 2182 (“Where the evidence fails to show that the employer should have perceived a need for additional monitoring or that such an effort would have led to the discovery of instances of employee misconduct, increased supervisory efforts to monitor employee compliance are not required.”) (quoting Dover Elevator Co., 16 BNA OSHC 1281, 1287 (No. 91-862, 1993)). The evidence also demonstrated that Outfront disciplined its employees in every instance where a violation of its Fall Protection Policy was found to have occurred. (Findings of Fact, ¶¶ 48, 60, 80). Indeed, the four employees here had been disciplined in connection with a Policy violation just six months prior to this one, and they knew their employment would be terminated if they violated the policy a second time. (T. 120, 293; Exs. R-3 & R-4). These circumstances weigh against a finding that Outfront failed to exercise reasonable diligence in monitoring its worksites, despite the employees’ first known violation six months earlier. See Thomas Indus. Coatings, Inc., 19 BNA OSHC at 2088-89 (uniformity of discipline weighs in favor of a finding of reasonable diligence); F.A. Gray, Inc., 12 BNA OSHC 1311, 1314 (No. 83-517, 1985) (finding no lack of reasonable diligence, in part, where employees were “experienced” and knew they would be fired for breaking the employer’s safety rule) (view of Commissioner Cleary).

The Secretary compares the instant matter to Public Utils. Mgmt. v. Sec’y of Labor, 417 F. App’x 58 (2d Cir. 2011) (unpublished), and argues that the court there found lack of adequate supervision even where a foreman had been designated to look for safety violations.14 The Secretary argues that in contrast, “Outfront’s ‘supervision’ is … far worse; it is absent.” (Sec’y Br. 19). This argument is rejected. The court in Public Utils. Mgmt. noted, “[d]epending on the circumstances, close supervision may or may not be reasonably necessary to attain compliance with safety rules.” 417 Fed.App’x at 63, quoting N.Y. State Elec. & Gas Corp., 88 F.3d at 109 (emphasis added). The Second Circuit in Public Utils. Mgmt. thus did not rule that the existence of a designated foreman or other supervisor at the worksite is dispositive of adequate supervision.

The Secretary did not demonstrate a lack of reasonable diligence in Outfront’s monitoring of its worksites or enforcement of its work rules.

Reiterating his arguments made in support of the alleged hazard assessment violation (Item 1c), the Secretary argues Outfront “took no action to inspect the [Waterbury billboard] for potential hazards.” (Sec’y Br. 18). However, as previously discussed in vacating Item 1c, Outfront demonstrated that the four employees understood that part of their site visit on September 20, 2017, would involve assessing the billboard for potential hazards and determining what PPE would be required to complete the job in accordance with Outfront’s Fall Protection Policy, and that each was competent to make such an assessment. (Findings of Fact, ¶¶ 62-64). The employees performed a hazard assessment that met the requirements of section 1910.132(d)(1).

Based on the foregoing, the Secretary did not demonstrate that Outfront failed to exercise reasonable diligence to discover the violations and therefore did not demonstrate that Outfront had constructive knowledge of its employees’ violative conduct.15 Accordingly, Item 1a of the Citation is vacated.

ORDER

  The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). If any finding of fact is in actuality a conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

__/s/___________________

WILLIAM S. COLEMAN

Administrative Law Judge

Dated: May 4, 2020

1 See 29 C.F.R. § 1910.140(b) (defining “carabiner”); see also Ex. C-20, p. 42.

2 The term “guardrail system” is defined in section 1910.21(b) and the requirements for such systems are set forth in section 1910.29(b). See also Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494, 82649 (Nov. 18, 2016) (to be codified at 29 C.F.R. pt. 1910), (describing guardrails as “passive fall protection devices”). The term “passive” fall protection connotes measures that “require[] no additional fall protection equipment to be donned by the worker.” (T. 392-393). In contrast, “active” fall protection “requires the climber to do something to attach and utilize the [fall protection] system.” (T. 394).

3 The term “personal fall protection system” is defined in section 1910.21(b).

4 These are the inclusive dates of the Field Observation Surveys presented in evidence. (Ex. R-5, Bates pp. 196 & 376). Many of the survey forms contain a header for “CBS Outdoor,” which is the predecessor company to Outfront. (E.g., Ex. R-5, Bates p. 170; T. 113, 294, 332).

5 While most of the Field Observation Surveys submitted by Outfront were completed by Mr. Bourne, some were completed by an individual with initials A.P., whose job title the record does not disclose, and who perhaps was responsible for conducting required field observations when Mr. Bourne was not available. (E.g., Ex. R-5, Bates p. 324).

6 There is no evidence whether OSHA’s receipt of this third-party report and subsequent phone call to Outfront resulted in any other official action on the report.

7 Cf. Hackensack Steel Corp., 20 BNA OSHC 1387, 1394 (No. 97-0755, 2003) (noting that the Commission has the discretion to assess a single penalty for distinct but potentially overlapping violations).

8 The safety standards cited for Items 1a and 1b are part of the standard pertaining to “walking-working surfaces” that was promulgated as a final rule in November 2016. Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494 (Nov. 18, 2016) (to be codified at 29 C.F.R. pt. 1910). Section 1910.28(b)(1)(i), cited in item 1a, was effective on January 17, 2017. Section 1910.30, “Training Requirements,” cited in item 1b, was effective May 17, 2017. 81 Fed. Reg. at 82890; 29 C.F.R. § 1910.30(a)(1).

9 The term “fall hazard” is defined to be “any condition on a walking-working surface that exposes an employee to a risk of harm from a fall on the same level or to a lower level.” 29 C.F.R. § 1910.21(b). The term “walking-working surface” is defined to be “any horizontal or vertical surface on or through which an employee walks, works, or gains access to a work area or workplace location.” Id. The term “lower level” is defined in pertinent part as follows: “Lower level means a surface or area to which an employee could fall. Such surfaces or areas include, but are not limited to, ground levels….” Id.

10 The cited training standard is largely derived from the fall protection training standard contained in the construction industry standards at section 1926.503(a)(1). See Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82,494, 82,638 (Nov. 18, 2016) (to be codified in 29 C.F.R. Part 1910) (“OSHA drew most of the training requirements [of section 1910.30] from the construction fall protection standard.”). Commission precedent applying that corresponding construction industry fall protection training standard constitutes at least persuasive authority with respect to the derivative standard in part 1910 that was cited here.

11 Subparagraph (ii) of 29 C.F.R. § 1910.140(c)(13) provides an alternative method for assuring an anchorage has adequate load bearing capacity and entails the involvement of a “qualified person” as defined in § 1910.140(b), such as a professional engineer. 29 C.F.R. § 1910.140.

12 Section 1910.132(d)(2) provides: “The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a certification of hazard assessment.”

13 The Secretary did not attempt to prove, and does not argue, that any of the four crew members working on the Waterbury billboard had sufficient authority to be deemed a supervisor for purposes of imputing their actual knowledge of the violative conduct to Outfront. See e.g., Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 352, 355 (3d Cir. 1984) (finding that the crew leader of a three-person electrical utility crew at a remote worksite was a supervisor whose actual knowledge of a violative condition could be imputed to the employer). Attempting to establish imputed actual knowledge would have been inconsistent with the Secretary’s theory of the case that the employees did not know that they were violating Outfront’s fall protection work rule because their fall protection training had been inadequate. (Sec’y Br. 7-13). Cf. Paul Betty, 9 BNA OSHC at 1383 (finding that work rule had not been adequately communicated where the senior employee at the jobsite did not recognize that a situation called for the work rule to be implemented).

14 It is likely that the only court of appeals to which the Secretary could seek review of a final order of the Commission in this matter is the Second Circuit, because the alleged violations arose in Connecticut, and there is evidence that Outfront’s principal office is in New York. (T. 280). See 29 U.S.C. § 660(b); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has … applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.”). It should be noted that the Second Circuit has determined not to accord its decision in Public Utilities Management precedential effect within the circuit because it was issued as a “summary order.” See 2d. Cir. R. 32.1.1(a) (“Rulings by summary order do not have precedential effect.”); Public Utils. Mgmt. v. Sec’y of Labor, Docket No. 10-0123-ag (2d. Cir. 2011) (summary order).

15 In view of the Secretary’s failure to prove the alleged fall protection violation, Outfront’s affirmative defense that the violation was the result of unforeseeable employee misconduct need not be addressed. Cf. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) (“The Commission has considered these same factors in evaluating both an employer’s constructive knowledge and the merits of an employer’s unpreventable conduct affirmative defense.”), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).