Some personal identifiers have been redacted for privacy purposes



United States of America


100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-3104







      OSHRC Docket No. 16-1533








Jaslyn W. Johnson, Karen E. Mock, Attorneys, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant.

Scott D. Stevens, Weathers Bolt, Attorneys, Starnes Davis Florie LLP, Mobile, AL, for Respondent.

JUDGE: John B. Gatto.


            In this enforcement proceeding, Cooper/T. Smith Corporation d/b/a Blakeley Boatworks, Inc. (Blakeley) was issued one citation under the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 651 et seq., by the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) alleging a “serious” violation[3] of 29 C.F.R. § 1915.77(c), relating to working surfaces requirements in ship repairing and shipbuilding operations, with a proposed penalty of $4,900.00.[4]  After Blakeley contested the citation, the Secretary filed a formal complaint[5] with the Commission seeking an order affirming the citation and proposed penalty.  There is no dispute that jurisdiction of this action is conferred upon the Commission by section 10(c) of the Act, 29 U.S.C. § 659(c), and that Blakeley is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). (Stip. ¶¶ 1, 2).

            A bench trial was subsequently held in Mobile, Alabama, under the Commission’s Simplified Proceedings.[6]  Pursuant to Commission Rules 90(a) and 209(f),[7] after carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the proceedings under section 12(j) of the Act. 29 U.S.C. § 661(j).  If any finding is in truth a conclusion of law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so.  The Court holds that for the reasons indicated infra, the citation is VACATED with no penalty assessment.


Blakeley is an employer engaged in ship repair activities with approximately 35 employees. (Pretrial Order, ¶ 2(c); see also Tr. 32).  The citation was issued as a result of an accident on the Crimson Clove Barge at Blakeley’s shipyard in Mobile, Alabama.  Many of the facts in this case are undisputed, including the facts of the accident itself.  On June 18, 2016, [redacted], a Blakeley shipyard supervisor, and Blakeley employee Keith Sullivan, were cutting out and replacing the top five feet of an access ladder in a barge holding tank. (Stip. ¶ 3).  Sullivan was standing in the barge holding tank with one foot on the access ladder and one foot on the angle of the barge. (Stip. ¶ 4).  [redacted] was standing in the barge holding tank on a 4x4 piece of wood that was already in the barge holding tank. (Stip. ¶ 5).  Blakeley employee Dana Bearden was positioned above and outside the barge holding tank, passing tools to [redacted] and Sullivan as needed. (Stip. ¶ 6).  Blakeley employee Kenny Bennett had cut the materials needed to erect the temporary scaffold and placed them next to the barge holding tank prior to the start of work, but both [redacted] and Sullivan failed to use the materials to erect the temporary scaffold. (Stip. ¶ 9).  While cutting and replacing the access ladder, [redacted] fell from an elevation of more than 5 feet. (Stip. ¶ 10).  Because of the fall, [redacted] was hospitalized with injuries. (Stip. ¶ 11).   

As a shipyard supervisor, [redacted] was responsible for supervising Sullivan, Bearden and Bennett on June 18, 2016. (Stip. ¶ 12).  [redacted] had the authority to enforce Blakeley’s safety and work rules; had the authority to correct employees’ conduct while they were working; and had the authority to issue verbal and written warnings to employees who failed to follow Blakeley’s safety and work rules. (Stip. ¶ 13).  [redacted] and Sullivan were exposed to a fall hazard when they were working at an elevation of more than 5 feet and were not using fall protection. (Stip. ¶ 7).  It was feasible for [redacted] and Sullivan to tie off and/or erect a scaffold as means of fall protection. (Stip. ¶ 8). 

The parties also stipulated the Secretary can establish his prima facie case of a violation since:

a. The cited standard applied to the work Blakeley was performing inside a barge holding tank at its worksite on June 18, 2016.

b. On June 18, 2016, Blakeley did not comply with the cited standard when [redacted] and Sullivan were working inside a barge holding tank at a height greater than 5 feet without fall protection.

c. On June 18, 2016, [redacted] knew that he and Sullivan were working inside a barge holding tank at a height greater than 5 feet without fall protection.

d. [redacted]’s knowledge of the violative conditions is imputed to Blakeley for purposes of establishing the Secretary’s prima facie case.[8]


(Stip. ¶ 14).  The Court accepts the forgoing stipulations and also concurs with the parties’ stipulation that the violation was appropriately classified as “serious” under the Act and that applying the statutory factors under the Act the proposed penalty of $4,900 was appropriate. (Stip. ¶¶ 16-18; see also Tr. 16, 18-19). 



The fundamental objective of the Act is to prevent occupational deaths and serious injuries. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980).  “To implement its statutory purpose, Congress imposed dual obligations on employers. They must first comply with the ‘general duty’ to free the workplace of all recognized hazards. 29 U.S.C. § 654(a)(1). They also have a ‘special duty’ to comply with all mandatory health and safety standards. Id. at § 654(a)(2).” ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).[9]  “The Secretary has rulemaking power and establishes the safety standards; investigates the employers to ensure compliance; and issues citations and assesses monetary penalties for violations.” Id. (citing New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 103 (2d Cir.1996)).  On the other hand, the Commission “serves as a ‘neutral arbiter’ between the Secretary and cited employers.” Id. (citing Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985).  Thus, Congress established an “unusual regulatory structure,” which “separated enforcement and rulemaking powers from adjudicative powers” and vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.” Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 151, 154 (1991).

A.     Violation

The cited standard mandates in relevant part that “[w]hen employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either scaffolds or a sloping ladder, meeting the requirements of this subpart, shall be used to afford safe footing, or the employees shall be protected by safety belts and lifelines meeting the requirements of §§1915.159 and 1915.160.” 29 C.F.R. § 1915.77(c).  “Under the law of [the Eleventh Circuit], the Secretary will make out a prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act’s requirements.” ComTran, 722 F.3d at 1307. See also, Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor, 567 F. App'x 801, 803 (11th Cir. 2014) (same).  The parties have stipulated to the Secretary’s prima facie case and agreed the only issue remaining for adjudication is whether Blakeley “has established the affirmative defense of unpreventable supervisory misconduct.” (Stip. ¶ 18).  Therefore, the Court limits its decision to that issue.

B.     Unpreventable or Unforeseeable Employee Misconduct Defense

“If the Secretary establishes a prima facie case with respect to all four elements, the employer may then come forward and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.” Eller-Ito, 567 F. App'x at 803 (citing ComTran, 722 F.3d at 1308) (same).  The employer bears the burden of establishing an affirmative defense by a preponderance of the evidence. Faragher v Boca Raton, 524 U.S. 775, 807 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).  

In the Eleventh Circuit, the affirmative defense of unpreventable or unforeseeable employee misconduct “requires the employer to show that it: (1) created a work rule[10] to prevent the violation at issue; (2) adequately communicated that rule to its employees; (3) took all reasonable steps to discover noncompliance; and (4) enforced the rule against employees when violations were discovered.” ComTran, 722 F.3d at 1307 (citing New York State Elec, 88 F.3d at 106). See also, Eller-Ito, 567 F. App'x at 803 (where the Eleventh Circuit referred to this affirmative defense as “preventable employee misconduct”).  However, as the Eleventh Circuit has held, “noncompliance by a supervisor suggests lax enforcement of a safety rule[.]” Daniel Int’l Co. v. Occupational Safety and Health Review Comm'n, 683 F.2d 361, 365 (11th Cir. 1982) (citing H. B. Zachry Co. v. Occupational Safety and Health Review Comm'n, 638 F.2d 812, 819 (5th Cir. 1981); Floyd S. Pike Electrical Contractor, Inc. v. Occupational Safety and Health Review Comm'n, 576 F.2d 72, 77 (5th Cir. 1978); National Realty & Construction Co. v. Occupational Safety and Health Review Comm'n, 489 F.2d 1257, 1267 n.38 (D.C.Cir.1973)).

1.      Created Work Rule

As to the first prong, the parties agree Blakeley had a safety plan in place at the time of the incident on June 18, 2016. (Stip. ¶ 15).  However, according to the Secretary, Blakeley’s “work rules and maintenance thereof, leaves room for confusion and doubt,” and therefore, Blakeley “failed to establish that it has a work rule, which is explicit and whose scope is clearly understood.” (Compl’t’s Br. 5).  According to the Secretary, Blakeley “provided testimony and produced document evidence indicating that at various times it had different fall protection requirements.” (Id.) (citing Tr. at 69-70).  However, properly framed, this argument is an attack on the adequacy of Blakeley’s communication of it work rule and will therefore be addressed in Section III(B)(2), infra.

In Beta Construction Company, the Commission held that “[i]n order to be considered effective, an employer’s work rule must be clear enough to eliminate employee exposure to the hazard covered by the standard” or as it has also said, must be “designed to prevent the cited violation.” Beta Constr. Co., 16 BNA OSHC 1435, 1445 (No. 91-102, 1993) (citations omitted). “Generally speaking, the work rule must be sufficiently precise to implement the requirements of the standard or be functionally equivalent to it.” Id. (citations omitted).  

Here, Blakeley’s Fall Protection Program required fall protection “at levels of 4 feet or higher, when an employee is not enclosed by handrails or other fall restraint apparatus.” (Ex. R-1) (emphasis in original).  Baugh also testified that at the time of the accident Blakeley had established a rule whereby employees were to use fall protection when working above 5 feet. (Tr. 39).  His testimony was supported by materials from 3 training sessions before the accident, including one only 10 days before the accident, that specifically show a 5-foot rule was in effect. (Ex. R- 2, Ex. R-4, Ex. R-11). The Court concludes this work rule met the Commission’s standard since it was clear enough to eliminate employee exposure to the hazard covered by the standard.  Therefore, the Court concludes Blakeley met the first prong of its preventable employee misconduct defense.

2.      Adequately Communicated Rule

As to the second prong, as indicated supra, the Secretary asserts Blakeley’s “work rules and maintenance thereof, leaves room for confusion and doubt,” and therefore, Blakeley “failed to establish that it has a work rule, which is explicit and whose scope is clearly understood.” (Compl’t’s Br. 5).  Thus, the Secretary argues Blakeley “provided testimony and produced document evidence indicating that at various times it had different fall protection requirements.” (Id.) (citing Tr. at 69-70).  The Secretary also argues Blakeley “kept these inconsistent fall protection requirements in its safety manual, which employees had access to” and “failed to differentiate the expired fall protection requirements from the current fall protection requirements. (Id.)  The Court finds no merit in these arguments, in particular since at trial, the Secretary stipulated he “does not dispute that [Blakeley] communicated its work order requiring the use of fall protection." (Tr. 27).

Baugh also testified at trial that when he took over the job of safety director he was concerned with the company’s fall protection policy that included an 8-foot rule, which Baugh knew was incorrect. (Tr. 69-70).  Therefore Baugh “highlighted through it, scratched through it with a pen, and put "five." (Tr. 70).  The 5-foot rule was in effect at the time of the accident. (Tr. 39).  After the accident, Baugh again changed the policy by scratching through “five” and replacing it with “four,” even though OSHA only requires 5 feet. (Tr. 71-72; see also Ex. R-1).  As Baugh explained, “I want to go to 4 feet, so that we will just be, you know, doubly safe at what we do. That's why -- and I did that.” (Tr. 72).  

While it is true Blakeley kept the old version of its fall protection policy in its safety manual, Baugh testified the older version was not kept with the current version, but rather, was kept in the “very back” of the manual. (Tr. 73).  As Baugh explained, “I wanted to show a progression. I wanted to be -- a progression of our safety program. I wanted to be transparent as possible, that we were making an effort to educate and enforce our manpower.” (Id.)  Further, each of Blakeley's employees that testified on the issue stated that they had never been taught an 8-foot rule. (Tr. 145, 172).  The Court credits this testimony, which it finds persuasive.  In contrast, the Secretary failed to elicit any testimony that the work rule was confusing or otherwise unclear to any employee.

The Secretary also argues Blakeley did not adequately communicate its alleged work rules since, according to the Secretary, Blakeley “adduced sign-in sheets from safety meetings” at trial and “the majority of the sign-in sheets fail to reflect specifics regarding the content of the training.” (Compl’t’s Br. 5) (citing Ex. R-2 – Ex. R-17).  According to the Secretary, 8 of the 10 sign-in sheets produced “do not have training materials attached” and “simply indicate what topic was discussed.” (Id. at 5-6) (citing Ex. R-3, Ex. R-8 to R-10, Ex. R-13 to R-15, Ex. R-17).  The Secretary points to Baugh’s testimony regarding Blakeley’s Exhibit R-3, which is the sign-in sheet for a “Safety Gang Box Meeting” held on October 6, 2015.  When Baugh was asked at trial what the topic of this meeting was, he responded, “fall protection.” (Tr. 48).  Therefore, according to the Secretary, Blakeley “failed to show that it specifically communicated its alleged work rule requiring fall protection at [5] feet or above.” (Id.)  The Court finds no merit in the Secretary’s arguments. 

The Secretary relies on the language from two Commission judges, Dewitt Excavating, Inc., 23 BNA OSHC 1834, 1838 (No. 10-1515, 2011) (ALJ), and the judge’s decision appended at the end[11] of the Commission’s opinion in Quinlan Enterprises, 24 BNA OSHC 1154 (No. 12-1698, 2013).  Although they may be persuasive, unreviewed administrative law judge decisions do not constitute binding precedent. KS Energy Serv. Inc., 23 BNA OSHC 1483 (No. 09-1272, 2011); Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976).  The Court does not find Dewitt or Quinlan persuasive since both are distinguishable from the present case.

In Dewitt, Judge Welsch found the “tool box talks fail to establish an adequate training program.  Although its principal business, the sheets identify only seven tool box talks over a four-year period which involved excavation training. The documents do not describe the specific information read to the employees. Also, the sign-in sheets do not show any training for the employees involved in this case ….” Dewitt Excavating, 23 BNA OSHC at 1838.  In Quinlan, Judge Calhoun found Quinlan had not adequately communicated its work rules regarding fall protection to its employees for multiple reasons, not simply because they “fail[ed] to reflect specifics regarding the content of the training,” as the Secretary asserts, but also because Quinlan provided minimal evidence regarding the communication of its work rules, adduced no specifics as to the training, and “inconsistent with Mr. Quinlan's testimony that sign in sheets reflected safety training, Pacheco testified that they were used to show receipt of pay checks.”  

Here, as Blakeley argues, and the Court agrees, “each employee, including [redacted], also testified that they knew fall protection was required on the job at issue.” (Resp’t’s Br. 3 (citing Tr. 134, 154, 166).  It is also undisputed that [redacted] had specific instructions from Baugh on this job to build a scaffold with guard rails or wear a harness to serve as fall protection. (Tr. 78).  [redacted] also testified had met with Baugh and received instructions on the type of scaffolding needed and the alternative option of wearing harnesses. (Tr. 131-32).  Blakeley’s employees also took steps to follow the work rule by cutting the parts to build the scaffold. (Tr. 132-33).  [redacted] admits that he knew that he was supposed to use fall protection for this job. (Tr. 134). 

The record also shows [redacted] was trained on the 5-foot fall protection rule as recently as 10 days before the accident.  Blakeley’s Exhibit 11 is a company record of a safety meeting held on June 8, 2016, and in subpart D, states “When employees are exposed to unguarded edges of decks, platforms, flats, and similar flat surfaces, more than five feet above the solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of 1915.71(j).” (Ex. R-11).  On bates stamp page 142 of that exhibit, it again states “Guardrails (including toe boards and top rails) shall be installed on all open ends and ends of platforms more than five feet above the ground, or floor, or other platform.” (Id.)  [redacted] attended that safety meeting held on June 8, 2016. (Tr. 63).  Further, all employees were required to acknowledge that they had received a copy of the handbook that included the disciplinary policy. (Tr.).  The record reflects [redacted] signed an acknowledgment that he has read and understood the employee handbook.  (Ex. R-19). 

Therefore, the Court concludes not only did Blakeley have a work rule in place to protect against this type of accident, it provided specific instructions to use fall protection on this specific job that would have prevented this accident.  Thus, the Court concludes Blakeley adequately communicated the work rule to its employees.  Therefore, the Court concludes Blakeley has met the second prong of its affirmative defense.

3.      Took All Reasonable Steps to Discover Noncompliance

Baugh testified, “We do visual walk-arounds all day. I walk a cycle around the shipyard repeatedly monitoring.” (Tr. 79-80).  He also testified Tim Sheppard, head of corporate safety for the company, helped monitor, as well as the shipyard superintendents. (Tr. 50, 80).  The lead men were taught to monitor. (Tr. 80).   Further, the shipyard manager himself monitored. (Id.)  As Baugh explained, “We try to police each other.” (Id.)  The Court credits this testimony, which was undisputed.  The Court concludes Blakeley took all reasonable steps to discover noncompliance and has therefore met the third prong of its affirmative defense.

4.      Effective Enforcement of Work Rule

Blakeley had a corrective action plan, which was included in its employee handbook, and presented copies of employee counseling notices issued to employees for safety infraction. (Ex. R-18, Ex. R-21; see also Tr. 83).  Although admitted into the record, the Court does not find the counseling notices relevant in determining whether Blakeley effectively enforced the work rule before the accident, since they were all dated after the accident, except one, and that one was a “warning for “burning on top of a newly laid down geogrid mat.” (Id.)   However, it is not dispositive that Blakeley did not have disciplinary records related to fall protection prior to the accident, since it is only required to show it effectively enforced the work rule “when violations were detected.”  Am. Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2096 (No. 10-0359, 2012).

Baugh credibly testified he taught the employees and supervision and lead men that Blakeley had a disciplinary program. “I communicated that disciplinary program to the employees in our meetings, once I communicated that to them, I went over the verbals. I went over the steps of the policy. And then after that, as I would see them on the shipyard, I would remind them of the disciplinary policies that we have and how we would enforce them for noncompliance.  And I did that often through meetings, you know.” (Tr. 82).  Baugh also testified that prior to the accident there had never been any accidents due to failure to use fall protection. (Tr. 81).  The Secretary did not rebut that testimony.  Blakeley also presented copies of its logs of work-related injuries and illnesses for 2015 and 2016, none of which report injuries implicating fall protection. (Ex. R-22).  Since the Court concluded Blakeley took all reasonable steps to discover noncompliance, and there is no evidence any violations of the work rule were detected prior to the accident, the Court would not expect any fall protection related disciplinary record to exist. 

Finally, the Secretary argues that Blakeley did not discipline [redacted] or document the discipline of Sullivan. (Sec’y's Br. 9-11).  However, as the Commission observed in Thomas Industrial Coatings, Inc., No. 06-1542, 2012 WL 1777086 (OSHRC Feb. 28, 2012), and noted again in American Engineering, “post-inspection discipline alone is not necessarily determinative of the adequacy of an employer's enforcement efforts.” Am. Eng'g, 23 BNA OSHC at 2097. It is undisputed Sullivan was given a verbal reprimand after the incident. (Tr. 114-15, 171).  As Blakeley points out, Sullivan also witnessed firsthand the potential ramifications of failing to use fall protection and as a result, said that he would never forget it. (Resp’t’s Br. 14; see also Tr. 171).  

At the time of trial, [redacted] had not been released from medical care and the evidence is clear that [redacted] had not been disciplined at the time of trial because Blakeley's first concern was that [redacted] “recover physically, mentally, and emotionally.” (Tr. 89, 145).  However, Baugh also testified that after [redacted] recovers and is released to full duty, he would be disciplined. (Tr. 89).  Further, as the Secretary acknowledges, [redacted]'s injuries were severe, consisting of "twelve vertebrae injuries, thoracic fractures, a shattered shoulder blade, a fractured hip, a fractured pelvis, a herniated disc, and three compression fractures." (Sec’y's Br., p. 3; see also Tr. 139-40).  Given the particular facts of this case, the Court does not find the company’s decision to delay the discipline of [redacted] and to impose a verbal warning to Sullivan is indicative of a lax safety program.  In totality, based upon the evidence presented, the Court concludes Blakeley has met the fourth prong of its affirmative defense.  Accordingly,


IT IS HEREBY ORDERED THAT the citation is VACATED with no penalty assessment.


                                                                        /s/ John B. Gatto                    

                                                                          John B. Gatto

                                                                          Administrative Law Judge 

Dated: March 31, 2017

            Atlanta, GA



[1]  Pursuant to Fed.R.Civ.Pro. 25(d), the Acting Secretary of Labor has been substituted for the Secretary of Labor.

[2] The Court sua sponte corrected the style to properly reflect the respondent as “Cooper/T. Smith Corporation d/b/a Blakeley Boatworks, Inc.”

[3] Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§ 666(a), (b), (c).  A “serious” violation is defined in the Act; the other two degrees are not.

[4] The Secretary delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act to OSHA. See 77 FR 3912 (2012).  The Assistant Secretary promulgated the Occupational Safety and Health Standards, otherwise known as the general industry standards, see 29 C.F.R. Part 1910, and adopted several industry-specific “established Federal standards,” see 29 C.F.R. §§ 1910.12–.16, which were previously established by federal statute or regulation, 29 U.S.C. § 652(10), including the shipyard standards of 29 C.F.R. Part 1915, see 29 C.F.R. § 1910.15.  OSHA’s Area Directors are authorized to issue citations and proposed penalties to enforce the Act. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a).

[5] Attached to the complaint and adopted by reference therein was the citation at issue.  Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.  A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).

[6] The Act provides that unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. See 29 U.S.C. § 661(f).  The Commission has adopted Simplified Proceedings, which apply in certain cases, see Subpart M of 29 C.F.R. Part 2200 (29 C.F.R. §§ 2200.200 - 2200.211), where the “Judge will receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious or unreliable.” 29 29 C.F.R. § 2200.209(c).

[7] 29 C.F.R. §§ 2200.90(a) and 2000.209(f).

[8] The Court accepts this stipulation, since this case involved the violative conduct of both supervisor [redacted] and subordinate Sullivan, and under Quinlan v. Sec'y, U.S. Dep't of Labor, 812 F.3d 832 (11th Cir. 2016), there is “little or no difference between the classic situation in which [“imputation is clearly established” when] the supervisor sees the violation by the subordinate and disregards the safety rule … and the instant situation in which the supervisor sees the violation and pitches in and works beside the subordinate[.]” Id., 812 F.3d at 841.

[9] Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a).  The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b).  This case arose in Mobile, Alabama, which is in the Eleventh Circuit where the company’s principal office is also located.  In general, 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.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).  The Court therefore applies the precedent of the Eleventh Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed to.

[10] The Commission has defined a “work rule” as “an employer directive that 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.” J. K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076 (No. 12345, 1977).

[11] In Quinlan, the Commission’s two-page opinion ends on 24 BNA OSHC at 1155, and the cited page *11 is an excerpt from Judge Calhoun’s decision, included by Westlaw after the end of the Commission’s opinion.