United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

DECISION AND ORDER

APPEARANCES:

For the Complainant:

Julie C. Pittman, Esquire
David J. Rutenberg, Esquire
Trial Attorneys
U.S. Department of Labor
New York, New York

For the Respondent:

Michael Rubin, Esquire
Ogletree Deakins
Raleigh, North Carolina

BEFORE:        William S. Coleman
Administrative Law Judge

The Respondent, Elmer W. Davis, Inc. (EWD), is a commercial roofing company based in Rochester, New York.  On April 4, 2022, an EWD crew was replacing the flat roof of a four-story municipal building in the Village of Newark, New York.  A compliance safety and health officer (CO) for the U.S. Occupational Safety and Health Administration (OSHA) was driving near the municipal building and noticed a worker standing at the edge of its roof without any apparent fall protection and signaling to the operator of a crane that was hoisting materials onto the roof.  The CO stopped driving and from a parking lot about 200 feet away he continued observing the worker at the roof’s edge.  The CO then drove to a second parking lot about 500 feet from the building, where he then observed three other workers on the 8x10-foot roof of a bulkhead, which was about ten feet higher than the surface of the main roof, also lacking any apparent fall protection.  After obtaining authorization to commence an inspection and investigation, the CO went onto the municipal building’s roof where the EWD crew was working, when he noticed that a portable ladder the three employees on the bulkhead roof had used to access the roof was extended less than three feet beyond where the ladder rested against the bulkhead’s parapet wall.

After the CO completed the inspection and investigation, OSHA issued to EWD a Citation and Notification of Penalty (Citation), that alleged three serious violations of OSHA’s construction industry standards codified at 29 C.F.R. Part 1926.  

Citation item 1 pertained to the employee who had been signaling the crane operator and alleged a violation of the standard that prescribes permissible forms of fall protection for employees in hoist areas [§ 1926.501(b)(3)].  Citation item 2 pertained to the three employees on the bulkhead roof and alleged a violation of the standard that prescribes permissible means of fall protection for employees engaged in roofing work on low-slope roofs [§ 1926.501(b)(10)].  Citation item 3 pertained to the employees who had used the portable ladder to access the bulkhead roof and alleged a violation of the standard requiring that the side rails of such ladders extend at least three feet above the upper landing surface (or if not extended at least that distance, requiring that the ladder “be secured at its top to a rigid support … and a grasping device be provided to assist employees in mounting and dismounting the ladder”) [§ 1926.1053(b)(1)].  

The Citation proposed penalties totaling $26,106 for the three alleged violations.

The most substantial issues for decision are:

• Did the CO’s entry onto, and activities on, the municipal building’s rooftop on April 4, 2022, violate EWD’s constitutional protection against unreasonable searches and seizures? 

Decision:  No.  

• Did the Secretary prove by a preponderance of the evidence that an employee had bypassed modular guardrails in a hoist area while signaling to a crane operator on the ground?  [Citation Item 1 -- § 1926.501(b)(3)] 

Decision: Yes.  The Secretary proved conduct that violated § 1926.501(b)(3).

• Did the Secretary prove by a preponderance of the evidence that EWD had constructive knowledge that the employee had bypassed the modular guardrail to guide the crane operator on the ground?   

Decision: Yes.  The Secretary proved both (1) that EWD’s foreman had constructive knowledge imputable to EWD of the employee’s violative conduct in the hoist area, and (2) that EWD had constructive knowledge because its safety program was inadequate.

• Is the Secretary collaterally estopped from challenging EWD’s unforeseeable employee misconduct (UEM) defense to the violation of § 1926.501(b)(3) on the ground that EWD had successfully interposed the UEM defense in a prior Commission proceeding involving a fall protection violation that had occurred about a year earlier? 

Decision:  No.  The elements of collateral estoppel are not present.

• Did EWD prove by a preponderance of the evidence that the violation of § 1926.501(b)(3) was the product of UEM? 

Decision: No.  The affirmative defense of UEM was not proven.

• Did the Secretary prove by a preponderance of the evidence that employees on the low-slope bulkhead roof were not protected from falling by a compliant safety monitoring system?  [Citation Item 2 -- § 1926.501(b)(10)] 

Decision: No.  The evidence is insufficient to establish that EWD was non-compliant with § 1926.501(b)(10).

• Did the Secretary prove by a preponderance of the evidence that employees accessed the bulkhead roof with a portable ladder whose side rails did not extend 3 feet above the upper landing surface?  [Citation Item 3 -- § 1926.1053(b)(1)] 

Decision: Yes.  The Secretary proved the alleged violation of § 1926.1053(b)(1).

For the reasons set forth below, Citation Items 1 and 3 are AFFIRMED, Citation Item 2 is VACATED, and penalties totaling $16,782 are ASSESSED.

FINDINGS OF FACT

Except where the following numbered paragraphs indicate that the evidence was insufficient to establish a certain fact or indicate that there was no evidence bearing on a matter of fact, the following facts were established by at least a preponderance of the evidence.

1. 1.Elmer W. Davis, Inc. (“EWD”), is a commercial roofing company engaged in construction work and based in Rochester, New York.  (Tr. 11; 321; J. Pre-Hr’g Stmt. ¶ d).  EWD uses materials and supplies that originate from outside the state of New York.  (Tr. 11).  EWD employs more than 250 employees and is engaged in a business affecting interstate commerce.  (J. Pre-Hr’g Stmt. ¶ d; Ex. C-14 at 1; Tr. 187).   

The Roofing Project and Worksite

1. 2.On April 4, 2022, EWD assigned a crew of 11 employees to replace the flat roof of a municipal building located at 100 E. Miller Street in the Village of Newark, New York.  (Tr. 11, 143, 454; Ex. C-14 at 3).  The next lower level from the roof was ground level, about 40 feet below.  (Tr. 11, 154, 325).  The roof’s footprint was about 60 by 100 feet.  (Tr. 41, 74, 92; Exs. C-15 at 1, & C-17).  A parapet ran around the perimeter of the roof and was about 28 inches high and 15 inches wide.  (Tr. 173–74, 451; Ex. C-15 at 9). 

2. 3.In addition to replacing the building’s main roof, the project also entailed the replacement of a separate roof that covered a stairwell to the main roof (the “bulkhead roof”).  The bulkhead roof had a minimal pitch and constituted a “low-slope roof” as defined by 29 C.F.R. § 1926.501(b).  (Tr. 92).  The bulkhead roof’s footprint was approximately eight by ten feet, and the surface of the roof was about ten feet higher than the main roof.  (Tr. 92, 258; Exs. C-15 at 1, C-17).  The bulkhead roof had a parapet that was 14 inches wide and that rose about 17 inches higher than the roof surface.   (Tr. 120–23, 125–26; Exs. C-15 at 10, C-31).  The next lower level on the bulkhead roof’s west side was the main roof, and the next lower level for the other sides was ground level.  (Tr. 11–12, 73, 325; Ex. R-15 at 1).   

3. 4.Prior to April 4, another EWD team had erected guardrails around the perimeter of the main roof.  (Tr. 155–56; 375–77).  Most of the perimeter guardrails were clamped to the parapet so that the top rail was directly over the outer edge of the parapet.  (Tr. 371, 376, 399–400; Exs. C-2 & C-6).  But about a 25- to 30-foot-long segment of the guardrail protecting the west edge was comprised of three freestanding modular rails, each appearing to be between 8 and 10 feet in length.  (Tr. 211, 371; Exs. C-2 & C-6).   

4. 5.The vertical posts of the modular guardrails were inserted into 100-pound baseplates that sat on the roof surface.  (Tr. 211, 399–400; Ex. C-6).  The design of the baseplates was such that the vertical posts of adjacent modular guardrails would be inserted side by side into the same baseplate, and there would be a gap in between the vertical posts of the adjacent guardrails.  (Tr. 295, 406; Exs. C-6 & R-15).  This gap was approximately seven inches at the baseplate and slightly wider at the top where the adjacent vertical posts curved away from each other to form the horizontal top rails.  (Tr. 451; Exs. C-6 & R-15).   

5. 6.The design of the baseplates was further such that when the baseplates were positioned as near as possible to the parapet wall, there would be a space of about one foot between the guardrail and the inside face of the parapet wall.  (Tr. 295, 406, 451-52; Exs. C-6 and R-15).  Consequently, given the parapet’s fifteen-inch width, the horizontal distance from the top rails of the modular guardrails to the outer edge of the parapet was at least 27 inches.  (Tr. 451-52).   

The Hoisting Operation

1. 7.EWD used a crane set up in the parking lot on the west side of the building to hoist roofing materials onto the roof.  (Tr. 49, 128, 323, 346–48; Exs. C-3, C-14 at 3).   

2. 8.The crane operator had no view of the landing area on the roof.  (Tr. 150–51).  To guide the crane operator in landing a load on the roof, an EWD employee stood near the west edge of the roof and gave hand signals to the crane operator below.  (Tr. 355–56, 361–62).   

3. 9.Gabriel Calas-Alvarez was one of the EWD employees working on the main roof on April 4.  At around 2 p.m., Calas-Alvarez directed the crane operator with hand signals while breaching the one-foot-wide space that was in between the modular guardrail and the parapet wall.  (Tr. 37, 39, 42–44, 148, 354–55; Exs. C-1, C-2, C-12, C-13).  Calas-Alvarez had stepped through the approximate seven-inch gap between the vertical members of two adjacent modular guardrails to stand beyond the guardrails to signal the crane operator in landing a load onto the main roof.  (Tr. 39–40; Ex. C-1).  Calas-Alvarez was not using a personal fall protection system while in this position.  Calas-Alvarez was positioned beyond the modular guardrails for at least the three minute period that the CO observed him from street level.  (Tr. 227-31, 310; Exs. C-2, C-3).  After the load was successfully landed on the roof, Calas-Alvarez slid back through the gap to return to a position completely behind the guardrails.  (Tr. 310).   

4. 10.The EWD employee who was the designated foreman of the installation crew on April 4, 2022, (referred herein throughout as “Foreman”), is a fifteen-year employee of EWD, with the most recent five years as an EWD foreman.  (Tr. 11, 321-22, 376).  The Foreman describes himself to be a “working foreman,” so that in addition to performing his supervisory duties at worksites, he customarily performs roofing work itself.  (Tr. 321–22, 361).   

5. 11.As Calas-Alvarez guided the crane operator from a position near the northern end of the roof’s west edge, the Foreman was working near the southern end of the roof’s west edge, less than 100 feet away.  (Tr. 98–99; 170-71; Ex. C-17).   

6. 12.Four-foot-high bundles of 4x8-foot insulation board were staged on the roof and placed as close as 10 feet from the roof’s west side.  (Tr. 171, 350).  From street level, none of the bundled insulation boards were visible.  (Tr. 174–75, 366–67; Ex. C‑12).  The bundles of insulation board were not “double-stacked” on the roof to create eight-foot-high stacks.  The four-foot-high bundles of 4x8-foot insulation board on the roof were not so high that they would have obstructed the Foreman’s sightline from his position on the southern end of the roof’s west edge to where Calas-Alvarez was signaling the crane operator at the northern end of the roof’s west edge.  (Tr. 171).   

7. 13.There is no direct evidence that the Foreman observed Calas-Alvarez directing the crane operator with hand signals, and the preponderance of the circumstantial evidence is insufficient to controvert the Foreman’s sworn testimony that he did not.  (Tr. 165, 242–43, 356).   

8. 14.The Foreman, in the exercise of reasonable diligence, should have known that Calas-Alvarez was signaling the crane from a position beyond the modular guardrails. 

The Bulkhead Roof

1. 15.From a parking lot located about 500 feet from the roof, the CO observed three EWD employees––Carlos Calas, Quasar Pulliuam, and Chance Karst––on the approximately 8x10-foot bulkhead roof.2  (Tr. 141, 453–55; Exs. C-7, C-8 & C-9; see J. Pre-Hr’g Stmt. ¶ b).  None of the three employees were protected from falling by a guardrail system, a safety net system, or by personal fall arrest systems.  (Tr. 72–73).  

2. 16.Karst had been trained in the duties of a safety monitor, and he had been identified to act as a safety monitor for Calas and Pulliuam during the time that the CO observed them from street level about 500 feet away.  (Tr. 141, 303, 436–37). 

3. 17.The evidence is insufficient to establish by a preponderance that Karst (a) failed to keep the two monitored employees within visual sighting distance, (b) failed to maintain a position on the bulkhead roof that would enable him to recognize when either Calas or Pulliuam were unaware of a fall hazard or were acting in an unsafe manner, or (c) had been assigned responsibilities or had undertaken any tasks or activities that reasonably could have taken his attention away from his monitoring responsibilities. 

The 16-foot Extension Ladder

1. 18.At least three EWD employees used a 16-foot extension ladder to access the bulkhead roof on April 4.  (Tr. 103, 109, 135, 344; Exs. C-4, C-23; J. Pre-Hr’g Stmt. ¶ c).  The ladder was set up so that it was leaning against the top edge of the bulkhead’s 14-inch-wide parapet.  The ladder was fully extended but was long enough to extend only about 19 inches beyond the point where it contacted the parapet.  (Tr. 114-15. 127, 341, 483; Exs. C-2, C-4 & R-20; J. Pre-Hr’g Stmt. ¶ d).  EWD did not secure the ladder at its top to a rigid support that would not deflect and did not provide a grasping device to assist employees in mounting and dismounting the ladder.  (Tr. 341–42; Exs. C-4, C-5).   

2. 19.In dismounting the ladder onto the bulkhead roof, a worker would not reasonably step directly from the ladder to the roof without first stepping onto the parapet and then stepping down to the roof 17 inches below.  (Tr. 120–22; Ex. C-15 at 10).  Similarly, when mounting the ladder from the bulkhead roof, a worker would not reasonably mount the ladder without first stepping onto the top of the parapet.  

3. 20.The Foreman inspected the extension ladder and permitted employees to use it even though he reasonably should have recognized (a) the ladder’s side rails extended less than three feet beyond the top of the parapet, and (b) the ladder was not secured at its top to a rigid support that would not deflect and there was no grasping device to assist employees in mounting and dismounting the ladder.  (Tr. 341).   

EWD’s Health and Safety Program

1. 21.EWD has adopted a comprehensive written Corporate Safety Program that includes a provision addressing the use of guardrails and personal fall arrest equipment during hoisting operations.  (Tr. 390–91, 393; Ex. R-2 at 68).  EWD communicates the policies in its safety program to employees through field training.  (Tr. 471).   

2. 22.EWD annually provides safety training to all employees on common hazards to which roofers are exposed.  (Tr. 391).  The annual safety training takes about an hour to complete, and the topics covered include fall protection, the use of ladders, rigging, and signaling to crane operators.  (Tr. 327, 391).  EWD also provides safety reminders throughout the year through toolbox talks.  (Tr. 378, 396).   

3. 23.EWD’s Corporate Safety Program includes a progressive disciplinary policy for violations of safety rules.  (Tr. 394; Ex. R-2 at 33).  The disciplinary policy prescribes sanctions for safety rule violations as follows: verbal warning for a first violation; written warning for a second violation; a written warning and five-day suspension for a third violation; and “immediate termination” for a fourth violation.  (Tr. 394; Ex. R-2 at 33).  Fall protection violations are treated differently, with the sanction for a first violation being “immediate suspension for a minimum of a 1 week period.”  (Ex. R-2 at 33).  The policy expressly recognizes that EWD retains discretion to vary from the prescribed sanctions, providing as follows: “EWD retains the right to modify or augment the normal and customary disciplinary process based on the totality of the misconduct.”  (Tr. 394; Ex. R-2 at 33).   

4. 24.All employee disciplinary actions are centralized in EWD’s safety department and its Corporate Safety Director, Mr. Timothy Crumb.  (Tr. 395).  Crumb expects EWD foremen to contact him when they have a problem with an employee complying with a safety rule, and upon receiving such a report, Crumb may travel to the worksite to observe and address the reported safety problem.  (Tr. 395).  Consistent with the written progressive discipline policy, Crumb exercises discretion under the safety program to vary from the policy’s prescribed sanctions as he may determine is appropriate to the circumstances.  (Tr. 394-96).   

5. 25.The Foreman was in charge of safety at the worksite on April 4 and was responsible for ensuring employees complied with EWD safety rules and OSHA standards.  (Tr. 325–26).  The Foreman was aware that EWD had a written safety program, although he did not recall having ever read it.  (Tr. 335–37).  The Foreman did not know whether EWD’s disciplinary policy provided for progressive discipline.  (Tr. 336–37).  In the five years that he has been a foreman for EWD, the Foreman has not imposed any discipline under the disciplinary policy, and he has never referred an employee to Crumb for disciplinary action for a safety violation.  (Tr. 338–40).  Rather, when the Foreman observes a safety violation, his practice is to speak to the employee and make an on-the-spot correction.  (Tr. 338–39). 

6. 26.EWD has disciplined some employees for violations of safety rules, but EWD has never imposed any discipline on any employee for having violated a safety rule that occurred under the Foreman’s supervision.  (Tr. 338-40, 396). 

7. 27.EWD did not adequately communicate its safety program to all its supervisory employees.  (Tr. 130–31, 331–32, 341, 434; Ex. C-36 at 3).   

DISCUSSION

The Commission obtained jurisdiction upon the Secretary’s forwarding to the Commission EWD’s timely notice of contest.  29 U.S.C. § 659(c); 29 C.F.R. § 1903.17(a).  EWD is an “employer” as defined in the Act and accordingly is subject to its compliance provisions.  29 U.S.C. §§ 652(5), 654(a); (Findings of Fact ¶ 1; Tr. 11).

Compliance with Fourth Amendment

As the CO drove by the worksite on April 4, he observed the EWD employee standing near the edge of the roof and hand-signaling to the crane operator on the ground who was hoisting roofing materials to the rooftop.  The CO stopped in a parking lot about 200 feet from the building and observed the hoisting operation for about five minutes, taking some photographs and a video of the signaling employee.  He then drove to a second parking lot about 500 feet from the building to get a different view, where he noticed for the first time the three workers on the approximate 8x10-foot bulkhead roof.

The CO then obtained authorization from his supervisor to begin an investigation.  The CO had grown up in Newark and was familiar with the village’s municipal building, which houses city offices, school offices, court offices, and the police department.  (Tr. 75, 198).  The CO walked into the building and up an open stairwell to a door that opened onto the roof.  (Tr. 75, 199).  The door to the roof had a combination keypad on it but was unlocked, and the CO opened it and walked out onto the roof.  (Tr. 289-90; Ex. R-8).  The CO was wearing an OSHA hard hat, and he asked to be directed to the person in charge.  (Tr. 75, 92).  Someone identified the Foreman to the CO.  The CO noticed that the Foreman was conversing with an individual whom the CO recognized to be the village engineer for the Village of Newark.  (T. 95-96, 98-99).  There is no evidence that the CO had any interaction with the village engineer, and there is similarly no evidence that the village engineer voiced any objection to the CO having walked onto the roof.  

The CO presented his credentials to the Foreman and informed the Foreman that he believed he had observed two fall protection violations (one in the hoist area and the other on the bulkhead roof).  (Tr. 105).  The Foreman responded that he did not know anything about these things and that the CO would have to talk to EWD’s Safety Director, Mr. Crumb, who was not then present at the worksite.  (Tr. 105).  The Foreman then telephoned Crumb, which led ultimately to the CO speaking with Crumb over the telephone while remaining on the rooftop.  (Tr. 105-06).  That telephone conversation started at about 2:24 p.m.  Crumb told the CO that he was not available to travel to the worksite that afternoon and that he did not agree to the inspection and investigation going forward that day.  In response, the CO indicated to Crumb that he would not continue the inspection and investigation and that he would not interview any EWD employees.  Crumb and the CO agreed to meet on the roof two days later for the CO to conduct the inspection and interview employees with EWD’s consent.  

During the time that the CO was on the roof on April 4, neither the Foreman nor Crumb asked that he exit the rooftop.  (Tr. 107, 368). There is no evidence that the Village of Newark (the owner/operator of the municipal building) had granted EWD exclusive access to the roof or had empowered EWD to exclude others.

After the CO’s phone conversation with Crumb ended, but before the CO exited the roof, he photographed the modular guardrails (Ex. C-6) that were in the vicinity of the hoist area where Calas-Alvarez had been standing and hand-signaling the crane operator.  (Tr. 211-12; Ex. C-6).  The CO also took a photograph of the Foreman standing at the foot of the ladder to the bulkhead roof, which led the CO to warn the Foreman that the ladder was not safe because its siderails did not extend at least three feet above the parapet.  (Tr. 114-15, 209-10; Ex. C-5).  The Foreman told the CO that the ladder was fully extended and that it was the only ladder at the worksite.  (T. 114-15).  Sometime after this verbal exchange with the Foreman, the CO exited the rooftop.

Two days later, as Crumb and the CO had agreed, the CO returned to the roof and met with Crumb, took more photographs, and conducted some employee interviews.

“[T]he Fourth Amendment's prohibition against unreasonable searches applies to administrative inspections of private commercial property.”  Donovan v. Dewey, 452 U.S. 594, 598 (1981) (emphasis added) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) (holding that administrative inspections conducted pursuant to the OSH Act are subject to the Fourth Amendment’s warrant requirement)).  “[T]he Fourth Amendment only protects against intrusions into areas where an employer has a reasonable expectation of privacy,” and so “it does not require a warrant for a nonconsensual inspection of a workplace to the extent the workplace is open to the public.”  Concrete Constr. Co., 15 BNA OSHC 1614, 1617 (No. 89-2019, 1992).  

The CO’s access of the building’s roof through an unlocked door was not violative of the Fourth Amendment because EWD had no reasonable expectation of privacy respecting its activities and presence in the open areas of the rooftop.  See Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157, 158–59, n. 5 (3d Cir. 1976) (an employer working on a U.S. Navy ship was “on Government property and … would have no standing to raise” the asserted Fourth Amendment issue), citing Bloomfield Mech. Contracting, Inc. v. OSHRC, 519 F.2d 1257, 1263 (3d Cir. 1975) (contractor performing work at an apartment complex lacked standing to challenge constitutionality of the OSHA inspection “since any expectation of privacy at the [apartment] site was that of the owner”); Tri-State Steel Constr., Inc. v. OSHRC, 26 F.3d 173, 176–77 (D.C. Cir. 1994) (holding that where construction contract documents gave governmental inspectors right to enter a highway construction site without further consent, subcontractors had no reasonable expectation of privacy in the open areas of the construction site).

Once the CO was on the rooftop, the Foreman never asked him to exit the rooftop.  Rather, the Foreman arranged for the CO to speak by telephone with EWD’s safety director Crumb.  Even if EWD had a reasonable expectation of privacy in the open areas on the roof and thus the constitutional right to require the CO to obtain a warrant to be present on the roof, the Foreman never informed the CO that he was exercising any such right, and thus the Foreman effectively consented to the CO remaining on the roof and observing the worksite both before and during the CO’s subsequent telephone conversation with Crumb.  See Ackermann Enters., Inc., 10 BNA OSHC 1709, 1712 (No. 80–4971, 1982) (holding that CO could properly observe activities and objects at a worksite where an employee had assented to CO’s request to stay at the worksite while waiting for the arrival of the owner or a supervisor); see also Lakeland Enters. of Rhinelander, Inc. v. Chao, 402 F.3d 739, 745 (7th Cir. 2005) (indicating that employer effectively consented to OSHA inspection where employees “acquiesced and cooperated in the inspection”).

Similarly, even if EWD had a reasonable expectation of privacy in the open areas of the roof, the CO’s actions after Crumb informed him that EWD was not consenting to the conduct of the inspection that day were reasonable.  The two photographs that the CO took following that telephone conversation but before he exited the roof merely documented what he was then seeing with his own eyes as he departed the rooftop.  Those two photographs are simply cumulative to his testimonial evidence of what he had observed while present on the roof before Crumb informed him that EWD was not consenting to the conduct of an inspection that day.  Indeed, the photographic image of the ladder leaning against the bulkhead’s parapet that one photograph from the rooftop captured (Ex. C-5), was also captured by a photograph taken from the ground (whose admission EWD does not challenge) and further by a second photograph the CO took before speaking with Crumb on the phone.  (Tr. 59; Exs. C-4, R-12 at 8; J. Pre-Hr’g Stmt. at ¶ c.14).  The CO’s dialogue with the Foreman about the ladder being set up in an unsafe manner was reasonable and consistent with the CO’s obligation as a compliance officer to promote workplace safety and forestall violative practices.  See Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (“One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury”).  

Since no official of the Village of Newark objected to the CO’s presence on the roof, the CO could have opted to remain on the open areas of the roof to observe activities and objects without violating EWD’s Fourth Amendment rights, but he nevertheless substantially honored Crumb’s request to suspend the inspection and investigation until two days later when Crumb would be present and the CO would first interview EWD employees at the worksite.  

A preponderance of the evidence demonstrates that the CO did not violate EWD’s Fourth Amendment rights either by accessing the roof on April 4, 2022, or by his activities while on the roof that day.

Citation Items

Fall Protection in Hoist Area
[Citation Item 1–– § 1926.501(b)(3)]

Standard Applies

Citation Item 1 alleges a violation of § 1926.501(b)(3), which is contained in Subpart M of the Secretary’s Safety and Health Regulations for Construction.  29 C.F.R. §§ 1926.500–503.  Subpart M “sets forth requirements and criteria for fall protection in construction workplaces covered” under Part 1926.  § 1926.500(a)(1).  Section 1926.501(b)(1) requires generally that “[e]ach employee on a walking/working surface … with an unprotected side or edge which is 6 feet … or more above a lower level shall be protected from falling by the use of” specified fall protection systems.  The term “[u]nprotected sides and edges means any side or edge of a walking/working surface … where there is no wall or guardrail system at least 39 inches … high.”  § 1926.500(b).  Here, with the main roof’s parapet being less than 39 inches high, employees were required to be protected from falling from the roof’s unprotected edge.  The cited standard, § 1926.501(b)(3), requires that “[e]ach employee in a hoist area shall be protected from falling 6 feet … or more to lower levels by guardrail systems or personal fall arrest systems.”  Although “hoist area” is not a defined term, in promulgating the standard the Secretary emphasized that it was designed to cover employees “taking part in the actual hoisting operation.”  Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. 40672, 40685 (Aug. 9, 1994) (to be codified at 29 C.F.R. pt. 1926, subpt. M); see also S. Pan. Servs. Co., 21 BNA OSHC 1274, 1281 (No. 99-0933, 2005) (Commissioner Rogers concluding that § 1926.501(b)(3) applies to employees taking part in a hoisting operation).

The worksite at 100 E. Miller Street was a construction site covered by the provisions of Subpart M, and Calas-Alvarez was taking part in the hoisting operation by signaling to the crane operator from the roof’s edge.  Accordingly, § 1926.501(b)(3) applies.  EWD does not contend otherwise.

Noncompliance with Standard

Section 1926.501(b)(3) provides two options to protect employees from falling from an unprotected edge in hoist areas: guardrail systems or personal fall arrest systems.  In full, the standard provides:

Hoist areas.  Each employee in a hoist area shall be protected from falling 6 feet (1.8 m) or more to lower levels by guardrail systems or personal fall arrest systems.  If guardrail systems, [or chain, gate, or guardrail] or portions thereof, are removed to facilitate the hoisting operation (e.g., during landing of materials), and an employee must lean through the access opening or out over the edge of the access opening (to receive or guide equipment and materials, for example), that employee shall be protected from fall hazards by a personal fall arrest system.

29 C.F.R. § 1926.501(b)(3).  

EWD elected to protect employees from falling from the roof’s unprotected edge by installing a guardrail system around the roof’s perimeter.  EWD argues that the photographic evidence shows that Calas-Alvarez was not positioned within the one-foot-wide space that existed between the modular guardrails and the parapet while he was signaling to the crane operator.  (Resp’t Br. at 23).  In support, EWD points to a photograph the CO took from a parking lot 200 feet from the building and contends that, when that digital photograph is magnified, the modular guardrail is visible in front of Calas-Alvarez and thus shows that he “was standing next to it (and not in front of it as the Secretary alleges).”  (Resp’t Br. at 2, 6, 22–23; Exs. C-2, R-17).

EWD’s focus on this single photograph ignores a photograph that the CO took about a minute earlier and a 10-second video recording that the CO made prior to the photograph on which EWD relies.  (Exs. C-1, C-12; J. Pre-Hr’g Stmt. at ¶ c.11 & 22).  Both the photograph in Exhibit C-1 and the video in Exhibit C-12 provide clearer evidence of Calas-Alvarez’s positioning beyond the modular guardrails.  In Exhibit C-2 (as magnified in Exhibit R-17), taken at 2:03 p.m., the modular guardrail’s curve appears next to Calas-Alvarez’s thigh, but due to the angle of the photograph it is inconclusive as to whether it depicts Calas-Alvarez situated partially behind one of the adjacent modular guardrails or standing in between the vertical posts of adjacent modular guardrails.  (Exs. C-2 & R-17).  In contrast, in the photograph taken one minute earlier at Exhibit C-1, the guardrail’s curve is not visible when the digital photograph is similarly magnified.  (Ex. C-1).  In that earlier taken photograph, Calas-Alvarez’s right arm is raised to give hand signals to the crane operator below.  (Ex. C-1).  In the images on which EWD relies, Calas-Alvarez’s right arm is lowered, and he is no longer signaling to the crane below as he is faced toward the landing area for the crane’s load.  (Exs. C-2, R-17).  

The 10-second video at Exhibit C-12 was recorded in between the time that the photographs in Exhibits C-1 and C-2 were taken.  (J. Pre-Hr’g Stmt. at ¶¶ c.11, 12 & 22).  In the video, Calas-Alvarez’s body appears to be beyond the guardrails while he is hand signaling the crane operator.  (Ex. C-12).  At the end of the video, the ropes that are supporting the crane’s load go slack, indicating the load has landed on the roof.  Calas-Alvarez then signals the crane operator to stop lowering, and he appears to begin shifting away from the parapet wall.  (Ex. C-12).  

When the CO traveled to a second parking lot a few minutes after he recorded the video, the load was no longer attached to the crane and Calas-Alvarez was no longer positioned near the modular guardrails.  (Tr. 57, 310; Ex. C-3).  

The whole of the photographic and video evidence is corroborative of the CO’s testimony that, even from 200 feet away, he had no difficulty seeing with his naked eye that Calas-Alvarez was positioned in the space between the modular guardrails and the parapet.  (Tr. 35, 40–41, 215–18, 223-25).  

The whole of the photographic, video, and testimonial evidence establishes by a preponderance that Calas-Alvarez bypassed the modular guardrail system by slipping in between the seven-inch gap between the vertical posts of adjacent modular guardrails and that he breached the one-foot-wide space between the guardrails and the parapet.  (Tr. 438, 447, 451–52).

Additional circumstantial evidence suggests that Calas-Alvarez bypassed the modular guardrails so that he could maintain visual contact with the crane operator while signaling him.  EWD’s safety policy requires signalers to be “in visual contact with the crane and crane operator at all times,” and provides further that where such visual contact is not possible the signaler and crane operator should maintain uninterrupted radio contact.  (Ex. R-2 at 78).  [Calas-Alvarez and the crane operator were not in contact by radio or cell phone.  (Tr. 355).]  After Crumb had viewed the CO’s photographs of Calas-Alvarez signaling the crane operator, Crumb “retrained” or “coached” Calas-Alvarez that “a better place to stand” while signaling would have been from behind fixed guardrails that were set up to the immediate south of the three modular guardrails and that were clamped onto the parapet such that their top rails were directly over the outer edge of the parapet.  Crumb believed that “[i]t’s much easier [for Calas-Alvarez] to put his arm further over the guardrail from the clamp-on ones than the [modular guardrails with their] heavy bases and rails.”  (Tr. 438, 447-48).  A reasonable inference from Crumb’s testimony is that it would have been difficult if not impossible for Calas-Alvarez to establish visual contact with the crane operator and to signal him from a position behind the top rail of the modular guardrails, which were set back 27 inches from the parapet’s outer edge.  (Tr. 451–52).  

Moreover, there is no testimonial evidence contradicting the evidence that Calas-Alvarez bypassed the modular guardrail.  The Foreman testified that he was not watching the hoisting operation, and neither party called Calas-Alvarez or the crane operator to testify about where Calas-Alvarez had been standing when he was signaling the crane operator.  The whole of the photographic and video evidence, coupled with the CO’s testimony and the circumstantial evidence, establishes by a preponderance that during the hoisting operation Calas-Alvarez positioned himself beyond adjacent modular guardrails without being protected by a personal fall arrest system, and thereby was not in compliance with the requirements of § 1926.501(b)(3).  

Employee Exposure or Access to the Violative Condition

Calas-Alvarez was exposed to falling 40 feet from the roof’s unprotected edge while standing beyond the modular guardrails.  Calas-Alvarez was exposed to the violative condition upon bypassing the modular guardrails.

Employer Knowledge

“The fourth element, the knowledge requirement, may be satisfied by proof either that the employer actually knew, or with the exercise of reasonable diligence, could have known of the presence of the violative condition.”  N.Y. State Elec. & Gas Corp. v. Sec’y of Lab., 88 F.3d 98, 105 (2d Cir. 1996) (citing Dover Elevator Co., 16 BNA OSHC 1281, 1288 (No. 91-862, 1993)). “The actual or constructive knowledge of the employer's foreman or supervisor can be imputed to the employer.”  Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3d Cir. 1994).

Constructive knowledge may be established in two distinct ways: (1) by imputing to the employer a supervisory agent’s constructive knowledge of a violative condition, or (2) by establishing that the employer failed to implement an adequate safety program, the rationale for the second way being that “in the absence of such a program … the misconduct was reasonably foreseeable.”  ComTran Grp., Inc. v. U.S. Dep't of Lab., 722 F.3d 1304, 1308 (11th Cir. 2013); Mastec N. Am., Inc., No. 15-1574, 2021 WL 2311875, at *2 (OSHRC, Mar. 2, 2021); N.Y. State Elec. & Gas, 88 F.3d at 105–06 (citations omitted).  Here, the Secretary proved constructive knowledge of Calas-Alvarez’s violative conduct in both manners, as described below.

The Foreman’s Constructive Knowledge

Supervisory personnel may be deemed to have constructive knowledge of a violative condition that may be imputed to their employer if they “could have discovered and eliminated the hazard with the exercise of reasonable diligence.”  Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992); Clarence M. Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983) (finding that in the exercise of reasonable diligence a foreman could have known of the violative condition and thus had constructive knowledge of that condition); ComTran Grp., 722 F.3d at 1308 (stating that constructive knowledge may be shown “where the supervisor may not have directly seen the subordinate’s misconduct, but he was in close enough proximity that he should have”).  

As indicated earlier, a second and distinct way for the Secretary to prove that an employer has constructive knowledge of a violative condition is to demonstrate that the employer’s safety program was inadequate.  See also PSP Monotech Indus., 22 BNA OSHC 1303, 1306 (No. 06-1201, 2008) (“When actual knowledge is lacking, the Secretary may prove constructive knowledge by showing that the employer failed to establish an adequate program to promote compliance with safety standards”); Summit Contracting Grp., Inc., No. 18-1451, 2022 WL 1572848, at *7 n.13 (OSHRC, May 10, 2022) (“[A] theory of constructive knowledge based on an employer’s inadequate safety program is well-established in Commission precedent”); N.Y. State Elec. & Gas Corp., 88 F.3d at 105–06 (“[C]onstructive knowledge may be predicated on an employer’s failure to establish an adequate program to promote compliance with safety standards”).  

As discussed above, prima facie evidence was presented in the Secretary’s case-in-chief that EWD had constructive knowledge of the violation by dint of its safety program being inadequate.  That evidence similarly constituted prima facie evidence sufficient to defeat EWD’s UEM defense.  See PSP Monotech Indus., 22 BNA OSHC 1303, 1306, n.4 (noting “that the Secretary's burden of proving constructive knowledge and [the employer’s] burden of showing unpreventable employee misconduct rest upon an overlapping issue––whether [the employer] had an adequate safety program”); Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) (noting the Commission considers the same factors in evaluating an employer’s constructive knowledge and the UEM defense), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished); N.Y. State Elec. & Gas Corp., 88 F.3d at 107 (noting that when the Secretary’s proof of an employer’s constructive “knowledge is based on shortcomings in the employer’s safety policy, one issue raised in the prima facie case—the adequacy of the policy—is the same question that would arise if the employer were to raise the defense of unpreventable misconduct”).  The evidence that EWD presented in its case-in-chief in support of its UEM defense failed to rebut the prima facie evidence presented in the Secretary’s case-in-chief case that EWD had constructive knowledge of the violation because its safety program was inadequate.  

The Secretary, citing several decisions by Commission judges, asserts that the visual sighting requirement of § 1926.502(h)(1)(iii) is violated when a safety monitor turns away from the monitored employees.  In the cases cited, however, the safety monitors in violation were engaged in other responsibilities that interfered with their monitoring and were unable to see the monitored employees.  Compare Latite Roofing & Sheet Metal LLC, 23 BNA OSHC 1368 (No. 09-1074, 2010) (ALJ) (safety monitor worked alone on opposite side of roof ridge at least 40 feet from other employees, who were spread 120 feet apart); James Rutledge d/b/a Rutledge Roofing, 26 BNA OSHC 1121, 1126 (No. 14-1665, 2016) (ALJ) (safety monitor worked separately from monitored employee and left roof while other employee continued working); Holland Roofing of Columbus, 19 BNA OSHC 2125, 2127 (No. 01-1629, 2002) (ALJ) (monitor was on separate story of roof speaking on cellphone with back turned to monitored employees); see also Upstate Roofing, Inc., 19 BNA OSHC 2084 (No. 00-0336, 2002) (ALJ) (monitor also tasked with installing insulation did not see monitored employee back off roof); New England Roofing & Sheet Metal Co., 16 BNA OSHC 2061 (No. 93-1833, 1994) (ALJ) (use of safety monitor alone not permitted on roof more than 50 feet wide).  These cases do not support a finding that the safety monitor here was failing to meet the requirements of the cited standard.  

Here, the CO perceived that Karst had his back turned to the two monitored employees, but he conceded on cross-examination that he could not tell whether Karst was watching or communicating with the other workers, or even what tasks the other workers were performing:

Q.         Okay.  Do you know if, at that point, the person in the yellow jacket is giving a safety warning to the person immediately to the right of him?

A.         I do not have any idea.

Q.         Do you know if they're communicating?

A.         No, I don't.

Q.         Do you know if there's a concern right there about a safety issue?

A.         Well, there's still the gentleman on the back side.

Q.         Well, let me ask you this: If there was a safety issue, and there's two workers on different sides of the surface, would it be okay for the monitor to go over, turn their back on the other worker, and give a warning to the person who's in jeopardy, and for one split second, turn their back to the other person?

A.         Perhaps briefly, yes.

Q.         So at least with the worker to the right of the person in the yellow jacket, you don't know what's going on at that point; right?

A.         I do not.

Q.         The other worker to the left, do you know what's going on at that point?

A.         I do not know what he's doing, no.

(Tr. 251–52; Ex. C-3).  The CO, who was observing the three workers from parking lot about 500 feet away, was able to state only generally the direction in which he perceived Karst to have been facing.  (Tr. 248).  Four photographs of the employees on the bulkhead that the CO took from that parking lot are in evidence.  (Tr. 49, 58, 68, 70; Exs. C-3, C-7, C-8, C-9).  In the first photograph, Karst appears to be looking down toward the main roof, but he is also facing generally in the direction of another employee.  (Tr. 255; Ex. C-3).  In the next photograph, taken about one minute later, Karst has shifted and appears to be looking in the opposite direction, to the northwest.  (Tr. 254, 257; Ex. C-7).  In the third photo, taken about two minutes after the second photo, Karst appears to be looking toward the crane on the west side of the building.  (Tr. 268; Ex. C-8).  In the fourth photograph, taken less than one minute after the third photograph, Karst appears crouched down, looking at something on the bulkhead roof.  (Tr. 71; Ex. C-9).  The CO took these four photographs between 2:05 and 2:08 p.m.  (Tr. 49, 58, 126, 129; J. Pre-Hr’g Stmt. ¶ c).  These photographs are essentially snapshots of Karst’s activity over a period of less than four minutes.

Karst was most certainly within visual siting distance of the two employees that he was monitoring on the 8x10-foot roof, as § 1926.502(h)(1)(iii) requires.  And the photographs do not definitively show that Karst broke visual contact with either of the employees, or that if he did that such a break was any more than an instant or two as all three employees on the bulkhead shifted and moved about on the relatively tiny 8x10-foot surface while having to mind the roof’s unprotected sides.  There is no indication that the CO’s interviews of the two monitored employees yielded any evidence that Karst had failed to properly discharge the responsibilities of a safety monitor as prescribed by § 1926.502(h).  The photographic evidence is at best inconclusive on whether Karst’s position and movement while acting as safety monitor either took or could have taken his attention from the essential “monitoring function” of “recogniz[ing] fall hazards” and “warn[ing] the employee when it appears that the employee is unaware of a fall hazard or is acting in an unsafe manner.”  29 C.F.R.§ 1926.502(h)(1)(i), (ii) & (v).

For these reasons, the evidence supporting the Secretary’s claim that no employee on the bulkhead was performing in the requisite manner for there to be a compliant safety monitoring system is not preponderant.  The Secretary having failed to establish the violation of § 1926.501(b)(10), Citation Item 2, must be vacated.  

Portable Ladder Violation
[Citation Item 3 -- § 1926.1053(b)(1)]

Standard Applies

Citation Item 3 alleges a violation of § 1926.1053(b)(1), which is contained within Subpart X of the Secretary’s construction industry standards.  Subpart X “applies to all stairways and ladders used in construction … workplaces covered under 29 CFR part 1926.”  § 1926.1050(a).  Section 1926.1053(b) applies “to the use of all ladders . . . except as otherwise indicated.”  

As previously noted, the worksite here was a construction site.  EWD’s employees were using the portable ladder to access the bulkhead roof.  Section 1926.1050(b)(1) therefore applies, and EWD does not argue to the contrary.  

Non-compliance with Standard

In full, § 1026.1053(b) provides:

When portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to gain access; or, when such an extension is not possible because of the ladder's length, then the ladder shall be secured at its top to a rigid support that will not deflect, and a grasping device, such as a grabrail, shall be provided to assist employees in mounting and dismounting the ladder.  In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder to slip off its support.

It is undisputed that the ladder was not secured at its top nor was a grasping device provided, and so in order to comply with the standard the ladder’s side rails had to “extend at least three feet above the upper landing surface to which the ladder is used to gain access.”  The Secretary asserts that the ladder did not extend three feet above either the parapet wall or the bulkhead roof itself, which was 16 to 17 inches lower than the parapet.  (Sec’y Br. at 35–36).  EWD acknowledges that the ladder did not extend three feet above the parapet but contends that the bulkhead roof constituted the “upper landing surface” within the meaning of the standard so that the distance that the side rails extended above the parapet is immaterial.  (Resp’t Br. at 29–30).  EWD argues that the side rails did extend at least three feet above the surface of the bulkhead roof and so the ladder was set up in conformance with the standard.  (Id.).

The cited standard does not define “upper landing surface” or address whether a parapet may be considered the landing surface.  A similar provision governing the use of fixed ladders in construction, however, specifies that the parapet and not the roof is considered the access level unless the parapet is cut to permit passage through it.  § 1926.1053(a)(24) (“For a parapet ladder, the access level shall be the roof if the parapet is cut to permit passage through the parapet; if the parapet is continuous, the access level shall be the top of the parapet.”).  The structure of this parallel provision recognizes the inherent danger of workers stretching from a ladder and stepping over, not onto, a parapet.  That same concern supports the Secretary’s contention here that the parapet was the upper landing surface beyond which EWD’s ladder had to extend at least three feet to comply with the cited standard.  See Morrison-Knudson Co., 16 BNA OSHC 1105, 1108, 1111­12 (No. 88-572, 1993) (“The well-established rule of statutory construction is that ‘each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.’”) (quoting 2A Sutherland Statutory Construction § 46.05 (5th ed. 1992)).  

Even EWD’s safety policy recognizes the parapet here to constitute the upper landing surface within the meaning of the cited standard.  EWD’s written policy provides that a ladder “must extend three (3) feet above the roof edge, or parapet wall, which the ladder is being placed against.”  (Tr. 459–60; Ex. R-2 at 17).  This interpretation of the cited standard set forth in EWD’s own policy is the only reasonable interpretation of the cited standard.

For these reasons, the bulkhead’s parapet constituted the upper landing surface for EWD’s employees accessing the stairwell roof by use of the portable ladder.  EWD failed to comply with § 1926.1053(b)(1) because the side rails of the ladder extended less than three feet above the parapet.  

Employee Exposure or Access

Three EWD employees used the cited extension ladder to access the bulkhead roof on April 4, 2022.  (Findings of Fact ¶ 18).  The Secretary has demonstrated that the employees were exposed to violative conditions.  

Employer Knowledge

EWD’s onsite foreman inspected the extension ladder after it was set up in a non-compliant manner on April 4, but he nonetheless allowed employees to use it to access the bulkhead roof.  (Findings of Fact ¶ 20).  The Foreman thus had actual knowledge of the violative condition.  As EWD’s supervisory agent, the Foreman’s actual knowledge is imputed to EWD.  N.Y. State Elec. & Gas, 88 F.3d at 105.  

Classifications and Penalties

Serious Classifications

The Secretary alleges that the two proven violations were “serious.”  Under section 17(k) of the Act, a violation is serious if “there is a substantial probability that death or serious physical harm could result.”  29 U.S.C. § 666(k).  To prove that a violation is serious, “the Secretary need not establish that an accident is likely to occur,” but rather “that an accident is possible and there is a substantial probability that death or serious physical harm could result from the accident.”  Flintco, Inc., 16 BNA OSHC 1404, 1405–06 (No. 92-1396, 1993) (citation omitted).

The CO and the Foreman testified that falling 40 feet from the main roof would likely be fatal.  (Tr. 42, 180, 359).  The CO similarly testified that falling from the 16-foot ladder could result in broken bones or even death.  (Tr. 74, 184).  A preponderance of the evidence demonstrates that “death or serious physical harm could result” from the violative conditions established here, and therefore both proven violations are correctly classified as serious.  See Flintco, 16 BNA OSHC at 1405–06.  

Penalties

The Commission is the final arbiter of penalties.  Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994); see Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no restrictions on the Commission’s authority to raise or lower penalties within those limits”), aff’d, 73 F.3d 1466 (8th Cir. 1996).  

For the hoisting area fall protection violation, one employee was exposed to a potentially fatal fall when he bypassed the modular guardrail system.  The Secretary assessed the severity of the violation as “high” because the resulting fall hazard posed a risk of death or permanent injury.  (Tr. 181).  Because the violative condition existed for only a matter of a few minutes, however, the Secretary assessed the probability of an accident as “lesser,” and so determined that the overall gravity of the violation to have been “moderate.”  (Tr. 181–82).  EWD makes no argument challenging the Secretary’s gravity assessment.  The undersigned concurs in and adopts the Secretary’s gravity assessment and the proposed penalty of $9,324 for the hoist area violation.

For the ladder violation, three employees were exposed to a potential fall of up to 11 feet, which could result in broken bones or even death.  (Tr. 75, 184).  The Secretary assessed the severity of the violation as “medium” because of the potential for a serious injury.  (Tr. 185).  Because the side rails of the ladder did extend above the bulkhead’s parapet but extended less than the required three feet, the Secretary assessed the probability of an accident as “lesser” and the overall gravity level to be “moderate.”  (Tr. 185).  EWD makes no argument challenging the Secretary’s gravity assessment.  The undersigned concurs in and adopts that assessment and the proposed penalty of $7,458 for the ladder violation.

ORDER

The foregoing decision constitutes findings of fact and conclusions of law on all material issues of fact, law, or discretion in accordance with Commission Rule 90(a)(1).  29 C.F.R. § 2200.90(a)(1).  Based upon the foregoing findings of fact and conclusions of law, it is ORDERED:

1.  Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(3) is AFFIRMED, and a penalty of $9,324 is ASSESSED.

2.  Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.501(b)(10) is VACATED.

3.  Citation 1, Item 3, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is AFFIRMED, and a penalty of $7,458 is ASSESSED.

SO ORDERED.

 s/ William S. Coleman      

WILLIAM S. COLEMAN

Administrative Law Judge

Dated: September 30, 2024       

1 Neither a complaint nor an answer is filed in Simplified Proceedings.  29 C.F.R. § 2200.205(a).  In conformance with a scheduling order, EWD filed a statement that set forth asserted affirmative defenses.  

2 In the hearing transcript, Pulliuam’s surname is spelled “Pulliam.” (Tr. 454).  

3 The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend. IV.  

4 The Commission generally applies precedent of the circuit courts to which the parties may appeal.  See Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).  Here, both parties could seek review in the Second Circuit, and EWD could seek review also in the D.C. Circuit.  29 U.S.C. § 660(a) & (b).  

5 The CO did not learn until two months before the hearing that Karst was the individual who was the putative safety monitor the CO had observed from street level on April 4.  (Tr. 131, 141–44, 303, 350; see Ex. C-14 (email from Safety Director Crumb providing the CO with the names of employees at worksite on April 4, but erroneously omitting Karst’s name).)  Consequently, the CO did not seek to interview Karst on April 6 as part of his investigation, although he did interview the two employees whom Karst had been responsible for monitoring.  (Tr. 131).

6 When OSHA promulgated the current Subpart M in 1994, the agency noted that the provisions of § 1926.502(h) relevant here effectively restated the provisions the Commission considered in Beta Construction.  Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. at 40714.  OSHA commented that under the current standard a safety monitor “may have additional supervisory or non-supervisory responsibilities, provided that the monitor’s other responsibilities do not interfere with the monitoring function.”  Id.

7  The distance from the ladder’s next to last rung to the top of the ladder was approximately 19 inches, and the rungs were spaced about 12 inches apart.  (Tr. 482–83; Ex. R-20).  Crumb measured those distances on a ladder that he believed was identical to the one at the worksite on April 4, 2022.  (Tr. 476).

8 EWD provided a photograph depicting the stairwell parapet’s measured height, but due to the angle of the photograph it is unclear whether the measurement shows the parapet to be 16 or 17 inches high.  (Tr. 123–24; Ex. C-31; see Ex. C-15 at 9–10 (showing design specifications for roof in place)).

9 EWD indicated before hearing that it planned to assert the affirmative defense of UEM as to all alleged violations.  (Resp’t Mot. To Present Affirmative Defenses).  In its post-hearing brief, however, EWD does not argue UEM as a defense to Citation Item 3.  

10 The Secretary made two offsetting errors in calculating the proposed penalties in accord with her protocol for applying the section 17(j) penalty factors.  First, the Secretary erroneously applied a 10% reduction in gravity-based penalty for the employer size factor because she incorrectly concluded that EWD employed fewer than 250 employees.  (Tr. 186–87; Ex. C-14 at 1).  Second, the Secretary erroneously failed to apply a 10% penalty reduction for the history of violations, which under the Secretary’s protocol should have been applied under the circumstances.  (Tr. 190–91).  Those two errors offset.  Although the Commission is not bound to apply the Secretary’s protocol for calculating proposed penalties, the undersigned nevertheless concurs in and adopts her consideration of the employer’s size, history of violations, and good faith, as described at the hearing.  (Tr. 182–91).