________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 01-0956 : PERFORMANCE SITE MANAGEMENT, : : Respondent. : ________________________________: APPEARANCES: Heather A. Joys, Esquire U.S. Department of Labor Office of the Solicitor Cleveland, Ohio For the Complainant. Corey V. Crognale, Esquire Schottenstein, Zox & Dunn Columbus, Ohio For the Respondent. Before: Administrative Law Judge Michael H. Schoenfeld *DECISION AND ORDER* */Background and Procedural History/* This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1970) ("the Act"). On December 6, 2000, an accident at a work site in Hilliard, Ohio, resulted in the death of an employee of Respondent, Performance Site Management ("PSM"). From December 6, 2000 to May 9, 2001, the Occupational Safety and Health Administration ("OSHA") conducted an inspection and investigation relating to PSM's work site. As a result of the inspection and investigation, OSHA issued a one-item willful citation and a two-item serious citation, alleging, respectively, violations of the general duty clause and of safety standards appearing in Title 29 of the Code of Federal Regulations ("C.F.R.").^(1) <#N_1_> PSM timely contested the citations. Following the filing of a complaint and answer, and pursuant to a notice of hearing, the case came on to be heard in Columbus, Ohio. No affected employees sought to assert party status. Both parties have filed post-hearing briefs. */Jurisdiction/* It is undisputed that at all relevant times, PSM has been an employer engaged in excavation and construction. In addition, PSM admits that it utilizes tools, equipment, machinery, materials, goods and supplies that have moved in interstate commerce. I therefore find that PSM was engaged in a business affecting interstate commerce. Based on the foregoing finding, I conclude that PSM is an employer within the meaning of section 3(5) of the Act and that the Occupational Safety and Health Review Commission ("the Commission") has jurisdiction over the parties and the subject matter of this proceeding. */The Accident/* On December 6, 2000, one of PSM's utility crews was excavating and installing sewer pipes at the subject site, called the Noble Park project. The crew consisted of superintendent Roger Isaac, foreman Mike Dillie, track hoe operator Roger Harrell, "top man" Vicente Orona, "tail man" Carl Lintz and laborer Jeremiah Roberts. The crew arrived at the site at about 6:30 a.m. Before 7:00 a.m., the crew had their daily "10/10" meeting to discuss what they needed to do that day and any safety issues that might arise. After the meeting, the crew warmed up the equipment, which took 45 to 60 minutes due to the cold weather, and some members of the crew began other preparations, such as checking lasers and setting up tools. (Tr. 87-88, 283-85.) At approximately 8 a.m., the crew began work in the trench at the site. The trench was 10 feet deep, 20 feet long and 4 feet wide, and inside it were two trench boxes stacked on top of each other. While Mr. Harrell operated the PC-400 track hoe to make cuts in the trench, Mr. Lintz and Mr. Roberts were inside the trench boxes installing the sewer pipe. After they had finished laying a section of pipe, they waited for Mr. Dillie to backfill that area of the trench with a front-end loader. Mr. Orona, who normally acted as a spotter for the track hoe, was checking the grade at the time, and Mr. Harrell was still in the track hoe, which had an excavator bucket attached to one of its arms.^(2) <#N_2_> As Mr. Harrell was swinging the track hoe around, the bucket disengaged from the track hoe and fell into the trench. The bucket landed on Mr. Roberts, causing his death, and the impact of the bucket threw Mr. Lintz from the trench box. (Tr. 21, 87-88, 285-91, 315-17, 327-30.) */Serious Citation 1, Item 2/* This item alleges a violation of 29 C.F.R. § 1926.1053(b)(1). The cited standard provides as follows: 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. To prove a violation of a specific standard, the Secretary must demonstrate by a preponderance of the evidence (1) that the cited standard applies, (2) noncompliance with the terms of the standard, (3) employee exposure or access to the hazard created by the noncompliance, and (4) that the employer knew, or with the exercise of reasonable diligence could have known, of the condition. /Astra Pharmaceutical Prod., Inc./, 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); /Dun-Par Eng'd Form Co./, 12 BNA OSHC 1949 (No. 79-2553), /rev'd & remanded on other grounds/, 843 F.2d 1135 (8th Cir. 1988), /decision on remand/, 13 BNA OSHC 2147 (1989). It is undisputed that the cited standard applies. It is further undisputed that the portable ladder employees used to access and egress the trench did not extend at least 3 feet above the upper landing surface. Because the record demonstrates that the ladder was secured at the top to the trench box, the question is whether PSM complied with the terms of the standard by providing a grasping device to assist employees in mounting and dismounting the ladder. Neither the standard nor Commission precedent provides a clear definition for a "grasping device." The preamble to the standard also fails to provide meaningful guidance as to the definition of "grasping device," although the revised rule does state that it does not limit "alternative solutions to grabrails." 55 Fed. Reg. 47,669, 47,677 (1990) (to be codified at 29 C.F.R. pt. 1926). I find, however, that the term itself is fairly descriptive of OSHA's intent in formulating the standard. /Webster's Third New International Dictionary/ (1986) defines "grasp" as "to seize and hold by clasping or embracing with or as if with the fingers or arms." Thus, it is reasonable to conclude that a "grasping device" within the context of the standard is a device that employees can clasp or embrace with their fingers or arms when mounting and dismounting a ladder. This is consistent with what is plainly the intent of the standard-to require employers to provide employees with a device that provides safe and secure access to the upper landing surface. PSM asserts it complied with the standard because the top of the trench box wall served as a grasping device for employee use when entering and exiting the trench. Based on the description of the trench box, I reject this argument. It is undisputed that the top of the trench box wall was 4 inches wide. (Tr. 21, 50-51, 289-90.) It is reasonable to infer that some employees would have difficulty using the 4-inch-wide trench box wall as a grasping device to assist them in mounting and dismounting the ladder. If, for example, an employee should slip while trying to climb in or out of the trench, the width of the trench box wall might prevent a sufficient grip to keep the employee from falling off the ladder. In these circumstances, the top of the trench box would be insufficient to protect against the hazard the standard seeks to eliminate. Assuming /arguendo /that the trench box wall could be considered a grasping device, employees clearly did not consider or use it as such. While Mr. Lintz testified he could grab onto the trench box to exit the trench, he also testified that, rather than doing so, he placed his hands on top of the box, swung his leg over, and then jumped over onto the ground. (Tr. 328-29.) Thus, in practice, the top of the trench box was no different than the upper landing surface. For these reasons, I find that PSM violated the terms of the standard. The Secretary has also satisfied the other elements of her burden of proof. It is undisputed that employees were exposed to the hazardous condition, as the ladder was the only way to enter and exit the trench. In addition, the record shows that PSM had knowledge of the violation. The crew's superintendent admitted that the ladder they were using on December 6, 2000 did not extend 3 feet above the trench box. (Tr. 293.) He testified that the standard ladder they normally used extended 3 to 4 feet above the trench box but that the clamp on that ladder was broken. (Tr. 281-82.) Based on the foregoing, I find that the Secretary has met her burden of proving the alleged violation. I further find that the Secretary has properly classified the violation as serious, in that a fall of 9 to 10 feet could cause serious physical injuries. While the side of the trench box offered some hand-hold, albeit not as secure as necessary, it gave some support for employees. Thus the likelihood of a resulting injury is lower than the complete absence of any hand-hold. After giving due consideration to the gravity of the violation, and to the size of the employer's business and to the company's good faith and prior history of violations, I conclude that a penalty of $1,000.00 is appropriate. This item is accordingly affirmed, and the proposed penalty of $1,000.00 is assessed. */Willful Citation 2, Item 1(a)/*// In this item, the Secretary alleges a willful violation of section 5(a)(1), the general duty clause, for the employer's failure to render its workplace free of hazards associated with work under an excavator bucket.^(3) <#N_3_> To prove a general duty clause violation, the Secretary must establish that (1) a condition or activity in the workplace presented a hazard to employees; (2) the cited employer or the employer's industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard. /Nelson Tree Serv., Inc./, 60 F.3d 1207 (6^th Cir. 1995); /see also/, /Nat'l Realty & Constr. Co./, 489 F.2d 1257, 1265-67 (D.C. Cir. 1973). It is undisputed in this case that a condition or activity in the workplace presented a hazard to employees, that PSM recognized the hazard posed by employees working underneath an excavator bucket and that the hazard was likely to cause death or serious physical harm. The only issue in dispute is whether the Secretary established that PSM's abatement methods were inadequate or that there was a more effective, feasible means by which PSM could have eliminated or materially reduced the hazard. The citation specifies that PSM could abate the hazard by adopting the protocol and safe operating procedures of the Construction Industry Manufacturers Association ("CIMA").^(4) <#N_4_> By proposing the CIMA protocol as a feasible means of abatement, the Secretary is in essence asserting that PSM's safety rule in effect at the time of the accident did not eliminate or materially reduce the recognized hazard. In this regard, the Commission has held that: When the elimination of a recognized hazard requires employees to follow safe procedures, an employer is not in violation of section 5(a)(1) if it has established work rules designed to prevent the hazards from occurring, has adequately communicated the work rules to the employees, has taken steps to discover compliance with the rules, and has effectively enforced the rules in the event of non-compliance. /Connecticut Light & Power Co./, 13 BNA OSHC 2214, 2217-18 (No. 85-1118, 1989), /citing Inland Steel Co./, 12 BNA OSHC 1968, 1976 (No. 79-3286, 1986). The CIMA protocol provides that "*[b]e sure *everyone is in the clear before swinging or moving in any direction. NEVER swing or position attachment or load over personnel or vehicle cabs. *Never allow personnel *to walk or work under any part of the machine or load while the machine is operating." (C-9 at p. 17.) I find that the CIMA protocol was in effect no different than PSM's rule forbidding working under a load. At the time of the accident, PSM had a written work rule that prohibited employees from working under a load. (Tr. 97-100.) According to PSM, the term "suspended load" encompassed excavator buckets and attachments. (Tr. 99-100, 243, 344, 370.) The testimony of several witnesses, including three former employees, supports this assertion. These witnesses testified that they understood PSM's rule to include not working under the track hoe at any time. (Tr. 270-71, 310-11, 319, 324-25, 344, 352-53, 369-71.) In addition, the OSHA compliance office who had conducted the inspection admitted that the CIMA protocol was the same as the PSM rule. (Tr. 66.) Even the Secretary's expert witness testified that PSM had a rule against employees working under a bucket or suspended load that is in essence the same as the CIMA protocol. (Tr. 151-52.) Based on the above, I find that PSM's work rule prohibiting working under a load was the same as the CIMA protocol. I also find that PSM has an admirable safety program and record overall with many commendable practices. There were two prior instances in which a bucket became unexpectedly detached from an excavating machine. PSM made extensive efforts to assure that it did not happen again. They contacted the manufacturer and dealers of the equipment. They convened meetings and shared concerns and information with members of their trade association, even including competitors. They tried different couplers, and had a manufacturer develop new couplers for them. Also, PSM has a comprehensive program for maintaining its equipment including making sure service is regularly and properly performed and problems with the equipment are corrected immediately upon discovery. PSM also has a better injury rate than the industry in general, and that rate has improved over the recent years. I further find that PSM adequately communicated the rule to employees. When an individual was hired, PSM gave the new employee a written safety manual that included the company's safety rules, and PSM also provided a five-hour orientation in which safety was discussed. (Tr. 270, 307-10, 343-44, 373-75; R-28.) Further specialized training was given to operators of equipment, including a class on quick hitches, and PSM had weekly toolbox talks in which safety, including the rule against working under loads, was discussed. (Tr. 221-22, 228, 248-50, 296-97, 323-24; R-31-32.) Several former employees testified that safety was discussed every morning at the 10/10 meeting held before work started. (Tr. 283, 310-11, 323-24, 350-51.) These former employees additionally testified that they understood PSM's rule against working under a load to include not working under any part of the track hoe, including the excavator bucket.^(5) <#N_5_> (Tr. 270-71, 310-11, 319, 324-25, 344, 352-53, 369-71.) Mr. Isaac who was the superintendent of the Nobel Park project testified that PSM's vice president and his direct supervisor specifically singled out the rule against employees working under loads. (Tr. 269-72.) According to Mr. Orona and Mr. Lintz, Mr. Isaac in turn stressed to them the importance of not working under loads when they started working for PSM. (Tr. 277-78, 311, 319, 324.) I find it reasonable to infer from this evidence that PSM similarly communicated this rule to Mr. Harrell especially in light of the Secretary's expert witness testimony that Mr. Harrell was trained and had experience to know he was not supposed to put the excavator bucket over another employee's head.^(6) <#N_6_> (Tr. 150.) The expert further testified that PSM's operator training, rules and safety procedures were no different than what is standard in the industry. (Tr.169) The evidence of record also demonstrates that PSM took steps to discover compliance with the rule and effectively enforced its safety rule through its progressive disciplinary system. (Tr. 260-61, 273-74, 278, 293-96, 354, 376-79; R-21.) Former employees testified to this effect, and there was also credible testimony establishing that supervisors regularly evaluated individual employees for performance, which included rating the employee's safety performance. (Tr. 256-68, 311-12, 325.) For example, several supervisors evaluated Mr. Harrell's safety performance, and each found him to be at least a "very strong performer" in the safety component of the evaluation which included categories for individual safety record, following safety policy and promotion of safety.^(7) <#N_7_> (Tr. 250-58, R-37; /see also/ Tr. 279, 352-53.) As further steps to discover compliance with the safety rule, PSM's safety manager and safety team audited each crew on a monthly basis. (Tr. 379-81; /see, e.g./, R-23.) If the safety problems discovered during the audit could not be corrected, the audit team cleared the area until the problem could be abated. (Tr. 379-81.) PSM also had outside auditors evaluate the company's standard practices every six months to ensure quality and safety.^(8) <#N_8_> (Tr. 179-80.) In addition, PSM had a progressive disciplinary system to ensure that the safety rules were effectively enforced-verbal warning, written warning, suspension and termination. (Tr. 243, 376-77.) Foremen, superintendents, team leaders and the safety team all had authority to discipline employees for unsafe conduct. (Tr. 274, 377-79; R-21.) It is clear from the testimony of former employees that disciplinary actions would be taken for violations of safety rules. (Tr. 312, 325.) Based on the foregoing, I find that PSM had an effective, comprehensive safety program designed to render its workplace free of recognized hazards, including working under loads. Therefore, I find that the Secretary has failed to prove the alleged section 5(a)(1) violation.^(9) <#N_9_> This item is accordingly vacated.^(10) <#N_10_> */Findings of Fact/* All findings of fact necessary for a determination of all relevant issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied. */Conclusions of Law/* 1. Respondent was, at all times pertinent hereto, an employer within the meaning of section 3(5) of the Act. 2. The Commission has jurisdiction over the parties and the subject matter. 3. Respondent was not in violation of section 5(a)(1), as alleged in Citation 1, Item 1. 4. Respondent was in serious violation of 29 C.F.R. § 1926.1053(b)(1), as alleged in Citation 1, Item 2, and a civil penalty of $1,000.00 is appropriate for this violation. 5. Respondent was not in violation of section 5(a)(1), as alleged in Citation 2, Item 1a. 6. Respondent was not in violation of 29 C.F.R. § 1926.651(e), as alleged in the alternative in Citation 2, Item 1a. 7. Respondent was not in violation of 29 C.F.R. § 1926.21(b)(2), as alleged in Citation 2, Item 1b. *ORDER* In the matter of /Secretary of Labor v. Performance Site Management/, Docket No. 01-0956, 1. Citation 1, Item 1 is VACATED. 2. Citation 1, Item 2 is AFFIRMED as a serious violation. 3. Citation 2, Item 1a is VACATED. 4. Citation 2, Item 1b is VACATED. 5. A total civil penalty of $1,000.00 is assessed. /s/ Michael H. Schoenfeld Judge, OSHRC Dated: June 28, 2002 Washington, D.C. *UNITED STATES OF AMERICA* ** ** *OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION* ** : SECRETARY OF LABOR, : : Complainant : : OSHRC Docket v. : No. 01-0956 : PERFORMANCE SITE MANAGEMENT, : : Respondent. : : *PARTIAL STIPULATION AND SETTLEMENT AGREEMENT* In partial settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, that: 1. Citation No. 1, item 1 shall be vacated. 2. Respondent hereby withdraws its notice of contest with respect to Citation No. 1, item 1. 3. The parties agree to the entry of a final order consistent with the terms of this Agreement. 4. Each party hereby agrees to bear its/his own attorney fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney fees which may be available under the Equal Access to Justice Act, as amended. 5. Respondent certifies that a copy of this Agreement was posted at its Ohio office this 12 day of Sept., 2001 to afford notice to its affected employees. DATED: 10-Sept. , 2001. FOR RESPONDENT: FOR COMPLAINANT: /s/ /s/ COREY CROGNALE HEATHER A. JOYS Schottenstein, Zox & Dunn Attorney for Complainant Attorneys for Respondent U.S. Department of Labor 41 South High Street 881 Federal Office Building Suite 2600 1240 East Ninth Street Columbus, Ohio 43215 Cleveland, Ohio 44199 OF COUNSEL: HOWARD M. RADZELY Acting Solicitor of Labor RICHARD J. FIORE Regional Solicitor BENJAMIN T. CHINNI Associate Regional Solicitor *NOTICE* Any party (including any authorized employee representative of affected employees and any affected employee not represented by an authorized representative) who has any objection to the entry of an order as set forth herein should communicate such objections within ten (10) days of the posting of this Agreement to: Ray H. Darling Executive Secretary Occupational Safety and Health Review Commission One Lafayette Centre 1120 20th Street, N.W. Washington DC 20036-3419 A copy of said objection should also be sent to: Heather A. Joys U.S. Department of Labor 881 Federal Office Building 1240 East Ninth Street Cleveland, Ohio 44199 *UNITED STATES OF AMERICA* ** ** *OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION* : SECRETARY OF LABOR, : UNITED STATES DEPARTMENT OF LABOR, : : Complainant : OSHRC Docket : v. : No. 01-0956 : PERFORMANCE SITE MANAGEMENT, : : Respondent : : ORDER APPROVING SETTLEMENT The Commission has jurisdiction over the subject matter of the case and over the parties by virtue of the filing of a timely notice of contest. The stipulated settlement between the parties filed on 9-17 , 2001 has been considered. The settlement agreement has been served on all parties and posted in the manner prescribed by Commission Rule 7(g).^(11) <#N_11_> Ten (10) days have passed since service and posting and no objection to the settlement has been filed. The settlement is approved under 5 U.S.C. §554 (c)(1) and Commission Rule 100. The terms of the stipulated settlement are incorporated, in their entirety, by reference in this order. The order shall become final thirty (30) days from the date of its docketing by the Executive Secretary, unless review thereof is directed by a Commission Member within that time. 29 U.S.C. §661(j). /s/ MICHAEL H. SCHOENFELD Judge, OSHRC Dated: June 28, 2002 Washington, D.C. 1. The Secretary withdrew Item 1 of Serious Citation 1 in a Partial Stipulation and Settlement Agreement filed on September 17, 2001. The appropriate Order Approving Settlement is attached. At the hearing, the Secretary withdrew Item 1(b) of Willful Citation 2, leaving Item 2 of Serious Citation 1 and Item 1(a) of Willful Citation 2 to be resolved. 2. Mr. Harrell had used a Hendrix "quick coupler" to attach the bucket; the quick coupler allowed the operator to change buckets while remaining in the cab of the track hoe. (Tr. 214-17; R-25.) 3. The Secretary amended her complaint to allege in the alternative a willful violation of 29 C.F.R. § 1926.651(e), which provides as follows: No employee shall be permitted underneath loads handled by lifting or digging equipment. Employees shall be required to stand away from any vehicle being loaded or unloaded to avoid being struck by any spillage or falling materials. Operators may remain in the cabs of vehicles being loaded or unloaded when the vehicles are equipped, in accordance with § 1926.601(b)(6), to provide adequate protection for the operator during loading and unloading operations. The Secretary asserts that PSM allowed its employees to work underneath an empty excavator bucket in violation of the cited standard. In essence, the Secretary argues that the empty bucket was a load for purposes of the standard. The Secretary's interpretation of the standard is generally accorded substantial deference when the standard is ambiguous and the interpretation is reasonable. /Martin v. OSHRC/, 499 U.S. 144, 156 (1991). However, when an "alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation," no deference to the Secretary's interpretation is required. /Gardebring v. Jenkins/, 485 U.S. 415, 430 (1988). I find the cited standard here to be unambiguous. By using the words "loads handled by lifting or digging equipment," OSHA clearly intended to refer to the materials being moved by the excavator. /See /54 Fed. Reg. 45,914, 45,918-19 (1989) (to be codified at 29 C.F.R. pt. 1926). Further, the word "load" commonly refers to "the quantity that can be or customarily is carried at one time by an often specified means of conveyance." /Webster's Third New International Dictionary/ (1986). The excavator bucket in this case was not "carried" by the track hoe, but, rather, was an integral part of it, without which the equipment could not have been used for its intended purposes-digging and lifting. I conclude that the cited standard is not applicable, and the alternative alleged violation is therefore vacated. 4. The citation also states that PSM could abate the hazard by "prevent[ing] employees from walking or working under any part of machine or load while the machine is in operation." This proposed "method" is neither a specific means of abatement nor in practice a different means of abatement than adopting the CIMA protocol. 5. Messrs. Isaac, Orona and Lintz are all former employees of PSM. 6. In addition to the new employee orientation, toolbox safety meetings and the 10/10 meetings, Mr. Harrell also attended a winter training class conducted by Joseph Fitch, PSM's logistics manager, on equipment used on the job, including the track hoes. (Tr. 221-23.) Mr. Harrell also attended a competent person training, an eight-hour construction excavation course, conducted by Mark Potnick of the Ohio Contractors Association on April 5, 2000. (Tr. 336-39; R-33.) 7. Specifically, several witnesses, including former employees who were coworkers of Mr. Harrell, testified that they had never seen Mr. Harrell violate the safety rule prohibiting employees from working under loads. (Tr. 251-52, 279, 289, 313.) 8. According to company president, Daniel Lorenz, the purpose of these outside auditors was to maintain PSM's International Organization Standards 9002 certification status. (Tr. 179-80.) 9. The Secretary also failed to establish that other feasible, more effective abatement methods would have materially reduced or eliminated the hazard. The Secretary asserted that PSM should have required employees to evacuate the trench box when the track hoe was used to move the box to a different area. No evidence was presented, however, to show that the trench box was being moved at the time of the accident or that, even if it was, employees were working under a load, as alleged. (/See/ Tr. 171.) The Secretary also asserted that using a "direct connection" between the track hoe and the bucket, instead of the quick coupler, would significantly reduce the hazard. In light of my ruling that the Secretary's expert was not qualified to testify about the coupler, the Secretary has not demonstrated by a preponderance of evidence that the use of a direct connection was a more feasible and effective abatement method. (Tr. 122-23.) 10. In vacating this citation, I am aware of the accident in which Mr. Harrell unintentionally positioned an excavator bucket over an employee or near enough over an employee. As a result, PSM disciplined Mr. Harrell for failing to follow the company's safety policy. (C-14.) PSM argues that the accident was a result of unpreventable employee misconduct. While I need not address the affirmative defense of unpreventable employee misconduct because of the Secretary's failure to satisfy her burden of proof, I note that the elements of unpreventable employee misconduct are in essence the same as the elements of the Secretary's burden of proving a 5(a)(1) violation. Were the asserted affirmative defense before me, I would conclude that Respondent had met its burden of showing that the fatality was the result of unpreventable employee misconduct. 11. Rules of Procedure of the Occupational Safety and Health Review Commission, 29 CFR §§2200.1-212, as amended, 55 Fed. Reg. 22780-4 (June 4, 1990).