” SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC Docket No. 03-2162W.G. YATES & SONS CONSTRUCTION CO., INC., HVY. DIV.\t Respondent.\t APPEARANCES:Daniel J. Mick, Counsel for Regional Trial Litigation, Office of theSolicitor; U.S. Department of Labor, Washington, DC For Complainant Robert E. Rader, Jr., Esq.; Rader & Campbell, P.C., Dallas, TX For Respondent REMAND ORDERBefore: RAILTON, Chairman; ROGERS and THOMPSON, CommissionersBY THE COMMISSION: This case is before the Commission on remand from the UnitedStates Court of Appeals for the Fifth Circuit. \/W.G. Yates & SonsConstr. Co. v. OSHRC\/,\/\/459 F.3d 604 (5th Cir. 2006). The court grantedRespondent?s petition for review of the decision of CommissionAdministrative Law Judge Stephen J. Simko, Jr. in \/W.G. Yates & SonsConstr. Co.\/, 21 BNA OSHC 1171, 2005 CCH OSHD ? 32,778(No. 03-2162,2005) (ALJ), which became a final order when the case was not directedfor review by the Commission. Occupational Safety and Health Act of1970, 29 U.S.C. ? 661(j) (2006); Commission Rule 90(d), 29 C.F.R.? 2200.90(d). The judge affirmed two citation items, alleging violationsof fall protection standards, and assessed a total penalty of $9,000. In its decision dated August 4, 2006, the court vacated the judge?sdecision to affirm Serious Citation 1, Item 1 because the judge failedto determine whether the Secretary had established that the misconductof the supervisor involved in the violation was foreseeable\/. W.G. Yates& Sons Constr. Co.\/,\/\/459 F.3d at 609. Accordingly, the court remandedthe matter to allow the Commission ?to conduct a foreseeability analysisto determine whether the knowledge of [the supervisor involved in theviolation] can be imputed to [the cited employer].? \/Id\/. at 610. We, in turn, remand this case to the judge for furtherproceedings consistent with the court?s decision.SO ORDERED. \/s\/ W.Scott Railton Chairman \/s\/ ThomasinaV. Rogers Commissioner \/s\/ HoraceA. Thompson III Commissioner Dated: March 14, 2007———————————————————————— Secretary of Labor,\t Complainant\t v.\t OSHRC Docket No. 03-2162W.G. Yates & Sons Construction Co., Inc., Hvy. Div.,\t Respondent.\t Appearances: J. Phillip Giannikas,Esquire Robert E.Rader, Jr., Esquire Office of theSolicitor Rader& Campbell U. S. Department ofLabor Dallas, Texas Nashville,Tennessee ForRespondentFor Complainant Before: Administrative Law Judge Stephen J. Simko, Jr. DECISION AND ORDER W.G. Yates Construction Co., Inc., Hvy. Div. (Yates) isengaged in construction contracting. On September 11, 2003, theOccupational Safety ad Health Administration (OSHA) conducted aninspection of the Respondent?s jobsite in Hoover, Alabama. At the timeof this inspection, the Respondent was responsible for the site work fora shopping center and business complex. This work included dirt work andpaving. As a result of this inspection, the Respondent was issued acitation and notification of penalty. The Respondent filed a timelynotice contesting the citation and proposed penalties. A hearing washeld in Birmingham, Alabama, on May 26, 2004. For the reasons thatfollow, Citation No. 1, Item 1, is affirmed and a penalty of $5,000.00is assessed; Citation No. 1, Item 2, is affirmed and a penalty of$4,000.00 is assessed. Background The Secretary?s compliance officers, James Cooley and RonHynes, were delivering information to a commercial mall development inHoover, Alabama, on September 11, 2003. While there, they conducted abrief inspection of another employer. As they prepared to leave thejobsite, the compliance officers noticed three workers laying grassmatting on a slope. These individuals were 200 to 300 yards from Mr.Cooley and Mr. Hynes. Two of these workers were wearing safety harnessesbackwards. One individual wore no form of fall protection. He was lateridentified as Martin Olvera, a foreman for Yates. All three worked forthe Respondent. At the bottom of the slope where these men were located,the landscape dropped off precipitously 65 feet. After first observingthese employees, the compliance officers proceeded cautiously to thearea. Fifteen to 20 minutes elapsed between the inspectors? firstobservation of the three-man crew and their arrival at the employees?location. When Mr. Cooley and Mr. Hynes reached the work area, theyphotographed these employees still working on the slope: the foremanwithout fall protection, and the two crew members with safety harnesseson backwards. The compliance officers met with Mr. Olvera, whoidentified himself as the Respondent?s foreman. The inspectors begantheir inspection. Within a few minutes, John O. Ray, the projectsuperintendent for Yates, arrived at the scene. He stated that Olveraworked for him. He also said that he had inspected the jobsite twicethat day. As a result of this inspection, the Respondent was issued acitation alleging two violations and proposing penalties totaling$10,000.00. Discussion The Secretary has the burden of proving the violation:In order to establish a violation of an occupational safety or healthstandard, the Secretary has the burden of proving: (a) the applicabilityof the cited standard, (b) the employer?s noncompliance with thestandard?s terms, (c) employee access to the violative conditions, and(d) the employer?s actual or constructive knowledge of the violation(\/i.e.\/, the employer knew or, with the exercise of reasonable diligencecould have known, of the violative conditions). \/Atlantic Battery Co., \/16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). Alleged Serious Violation of 29 C.F.R. ? 1926.501(b)(1) The Secretary in Citation No. 1, Item 1, alleges that: Each employee on a walking\/working surface (horizontal and verticalsurface) with an unprotected side or edge which is 6 feet or more abovea lower level was not protected from falling by the use of guardrailsystems, safety net systems, or personal fall arrest systems: On or about 09\/11\/03, at the Patton Creek jobsite, an employee was notusing any fall protection system, exposing him to a fall of 65 feet. The standard at 29 C.F.R. ? 1926.501(b)(1) provides:(b)(1) \/Unprotected sides and edges. \/Each employee on a walking\/workingsurface (horizontal and vertical surface) with an unprotected side oredge which is 6 feet (1.8 m) or more above a lower level shall beprotected from falling by the use of guardrail systems, safety netsystems, or personal fall arrest systems. The cited standard is clearly applicable. At this jobsitethe Respondent?s employees were engaged in construction activitiessubject to the provisions of this standard. Mr. Olvera, the Respondent?s foreman of a three-man crew,worked on the slope, a walking\/working surface, laying grass matting. Atthe end of the slope, there was an unprotected edge or side, 65 feetabove the next lower ground level. The evidence clearly establishes thatno guardrail system or safety net system was in place to protectemployees from falling 65 feet from the sloped surface. Mr. Olvera wasobserved and photographed working near the lower edge of the slopewithin the zone of danger; and, therefore, he was exposed to falling 65feet. The result of such a fall would certainly be death or seriousphysical injury including broken bones and internal injuries. Photographic evidence and testimony of Mr. Cooley, as wellas that of Mr. Olvera, established that Mr. Olvera worked on the slopewithout any personal fall arrest system or other form of personal fallprotection. While conflicting evidence was presented as to the durationof Mr. Olvera?s unprotected exposure to a 65-foot fall, and thecircumstances of that exposure, evidence established: that the terms ofthe standard were not complied with; and, that Mr. Olvera was exposed tothe hazard of falling 65 feet without any form of fall protection. The Respondent had knowledge of this violation. It knew, orwith the exercise of reasonable diligence could have known, of theviolative condition. Mr. Olvera, the Respondent?s foreman, knew that hewas working on this slope, exposed to a 65-foot fall with no fallprotection. His knowledge of this condition, as a foreman of thethree-man Yates crew, is imputed to the Respondent. Mr. Cooley testifiedthat Mr. Olvera worked on this slope without fall protection for atleast 15 to 20 minutes. Mr. Olvera testified that he was theRespondent?s foreman on this job. He admitted that he was on the slope,but claimed to have been there only five minutes. He testified that heknew he was not to be on the slope without being tied off. I find that Mr. Cooley?s testimony as to the duration of Mr.Olvera?s exposure to be credible. He observed Mr. Olvera on the slopefrom a distance. He then cautiously approached the slope so as not tostartle the exposed employee, and photographed Mr. Olvera and his crewcontinuing to work on the same slope at least 15 minutes later. Mr.Olvera?s testimony was merely an unsubstantiated claim that he was onthe slope about five minutes. He gave no credible basis for that claim.No other testimony was produced in support of that claim. His testimonyon the duration of his exposure lacks credibility. Joe Holyfield, the Respondent?s project manager, testifiedthat Mr. Olvera was the Respondent?s foreman and that Mr. Olveradirected the work of the crew. Mr. Holyfield further testified that Mr.Olvera took instructions from him and had his crew follow thoseinstructions. Mr. Olvera, according to Mr. Holyfield, had training onfall hazards. Given Mr. Olvera?s position, responsibilities on this job,and training on fall hazards, his knowledge is clearly imputed to hisemployer, Yates. The Secretary has produced sufficient evidence to establisha serious violation of 29 C.F.R. ? 1926.501(b)(1). Alleged Serious Violation of 29 C.F.R. ? 1926.502(a)(2) The Secretary in Citation No. 1, Item 2, alleges that: Employers shall provide and install all fall protection systems requiredby this subpart for employee, and shall comply with all other pertinentrequirements of this subpart before that employee begins the work thatnecessitates the fall protection. On or about 9\/11\/03, at the Patton Creek jobsite, the fall arrest systembeing used did not meet the criteria in that: 1.Employees were exposed to the hazard of fallsprior to beginning work. 2.The cable system being used was not properlyrigged. 3.Employees were wearing their full bodyharnesses backwards. 4.The keys to vehicles which were being used as anchor points were leftin the ignitions, allowing the vehicles to be driven off, and were notchocked to prevent their rolling. The standard at 29 C.F.R. ? 1926.502(a)(2) provides: (2) Employers shall provide and install all fall protection systemsrequired by this subpart for an employee, and shall comply with allother pertinent requirements of this subpart before that employee beginsthe work that necessitates the fall protection. This standard requires, in part, that employers comply withall pertinent requirements of Subpart M ? Fall Protection. The mostreadily apparent deficiency in the Respondent?s fall protection systemon this slope occurred when two Yates employees, at the direction oftheir foreman, wore their safety harnesses backwards while working onthe slope, while exposed to a fall of 65 feet. The Subpart M standard at 29 C.F.R. ? 1926.502(d)(17) provides: (17) The attachment point of the body belt shall be located in thecenter of the wearer?s back. The attachment point of the body harnessshall be located in the center of the wearer?s back near shoulder level,or above the wearer?s head. It is undisputed that two employees in Mr. Olvera?s crewasked Mr. Olvera for permission to wear their harnesses backwards withthe D-ring attachment points located in front of their chests ratherthan in the center of their backs. Mr. Cooley, the Secretary?s compliance officer, convincinglytestified and demonstrated at the hearing that the employees could rollout of the harness, be hung or break their necks when the D-ringattachment is worn in front of the chest, rather than on the wearer?sback, as required by the standard. Mr. Olvera told the two employees in his crew to wear theharnesses backwards so they could reach the bottom of the slope toperform their work. The lanyards provided by Yates were not long enoughto allow these employees to wear the harnesses properly and reach theirwork. The Respondent, through Mr. Olvera, its foreman, substituted itsjudgment for the requirements of the standard regarding the location ofthe D-ring attachment point of the body harness. Such substitution ofjudgment constitutes noncompliance with the terms of the standard. Theseemployees wore these harnesses backwards on this slope, for at least 45minutes while exposed to a 65-foot fall, and with the full knowledge andconsent of their foreman, Mr. Olvera. This was obviously not a departure from ordinary practice bythe Respondent?s employees. Mr. John O. Ray, the Respondent?ssuperintendent of dirt movement, admitted during the inspection thatthese employees wore the harnesses backwards to make the work easier. Atleast two supervisory employees, foreman Olvera and superintendent Ray,knew of and accepted the practice of wearing the harnesses backwards. This practice, standing alone, constitutes a seriousviolation of 29 C.F.R. ?1926.502(a)(2). Further discussion of the threeadditional practices which allegedly violated the standard is,therefore, not necessary to render a complete and effectual decisionrelating to this violation. Alleged UnpreventableEmployee Misconduct In its answer, the Respondent alleged that the violativeconditions were the result of isolated instances of employee misconductof which the Respondent had no knowledge. At the hearing, the Secretarymoved to strike the Respondent?s defense of employee misconduct as toCitation No. 1, Item 2. That motion was granted. While the Respondent?sanswer was sufficient to raise the defense as to Items 1 and 2, itfailed to pursue that defense as to Item 2 in its response to theSecretary?s interrogatory No. 2 (Exh. C-28), and in its prehearingstatement. Allowing the Respondent to assert this defense at thishearing would be prejudicial to the Secretary. In its prehearingstatement, the Respondent limited its employee misconduct defense toItem 1. In its interrogatory response, Yates also addressed only theviolative conditions in Item 1. The Respondent abandoned this defense as to Item 2 by itsdiscovery responses and its prehearing statement. The Secretary wasprejudiced by this conduct and would, therefore, be unable to meet thisdefense. Under Rule 37 of the Federal Rules of Civil Procedure anincomplete response to an interrogatory is treated as a failure torespond. The appropriate sanction under Rule 37 is to strike theapplicable portion of the pleadings. Here, that portion of thRespondent?s answer asserting employee misconduct is stricken as itrelates to the allegations found in Item 2 of Citation No. 1. The Commission has established a four-part test for theunpreventable employee misconduct defense. To establish the affirmativedefense of unpreventable employee misconduct, an employer must show:that it has established work rules designed to prevent the violation,has adequately communicated these rules to its employees, has takensteps to discover violations, and has effectively enforced the ruleswhen violations have been discovered. \/Jensen Construction Co., \/7 BNAOSHC 1477 (No. 76-1538, 1979). Martin Olvera supervised and directed the work activities ofhis crew and had responsibility for their safety. This crew varied insize between two and seven employees. He has given employees safetywarnings and has removed employees from jobs for working unsafely. Anemployee, such as Olvera, who had been delegated authority over theRespondent?s employees, is a supervisor for the purpose of imputingknowledge to an employer. \/Structural Building Systems, Inc.,\/ 20 BNAOSHC 1773, at 1775 (No. 03-0757, 2004). The Respondent asserts that any violation of 29 C.F.R. ?1926.501(b)(1) was a result of unpreventable employee misconduct by itsforeman, Mr. Olvera. The Respondent has a general written rule that a bodyharness and lanyard must be worn when working at a height of 6 feet ormore above an unguarded or unsecured working surface (Exh. R-1). Charles Maness, the Respondent?s safety director, testifiedas to Yates? training program. He claimed the provisions for fallprotection were site-specific. A review of this program shows that it isgeneral in nature and is not specific to this or any other jobsite. Hetestified generally that safety was the responsibility of each manager.In addition to orientation of newly hired employees, Yates conductsregular safety meetings at least once a week. Here, a supervisory employee failed to utilize fallprotection on a sloped surface, exposed to a 65-foot fall. The defenseof unpreventable employee misconduct is difficult to prove, since it isMr. Olvera?s duty to protect the employees under his supervision. Hisinvolvement in the misconduct is strong evidence that Yates? safetyprogram is lax. Mr. Olvera admitted that he failed to wear a safety harnesswhile working on the slope and attempted to justify his actions based onthe short duration of exposure. He also stated that he had notanticipated returning to the slope after leaving the area. His testimonyshowed a lack of understanding and appreciation for the need of fallprotection in this area. Further evidence of this is the fact that hegave specific permission to his two crew members to wear their harnessesbackwards while working on this slope for over 45 minutes. John Ray, the Respondent?s dirt supervisor on this job,testified that wearing harnesses backward allowed easier performance ofthe work to be done by the employees. This further shows lack ofunderstanding by supervisors of fall protection needs on this site. During the inspection, Mr. Olvera identified Mr. Ray as hissupervisor. Mr. Ray participated during the inspection as the supervisorof the operation. In its discovery response, the Respondent, throughcounsel, identified John Ray as the supervisor of this operation (Exhs.C-28, C-29). Only at the hearing did the Respondent?s witnesses(Holyfield, Olvera and Ray) suggest that Holyfield, not Ray, wasOlvera?s supervisor. I find the testimony inconsistent with the previousstatements and admissions, and find the testimony of all three not to becredible on this point. Mr. James Cooley, the Secretary?s compliance officer whoinspected this site, testified about Mr. Olvera?s exposure and hisresponse when questioned about his failure to wear a harness. Thefollowing is part of that testimony: A:The standard requires that each employee on a walking\/working surface,both horizontal and vertical, with an unprotected side or edge, which issix feet or more above a lower level was not protected from falling byuse of a guardrail system, a safety net system or personal fall arrestsystem. Q:How many of those systems was Mr. Olvera using? A:There was only one in place. Q:He, himself, was he using anything? A:He, himself, wasn?t using anything. Q:Okay. Now, you had a conversation with him; correct? A:Yes, sir. Q:What did he tell you about this? A:He stated that he had gone to use the bathroom just a few minutesprior and had taken his harness off and lanyard and went to use thebathroom and just forgot to put it back on. Q:To what extent ? excuse me ? to what extent did you conclude that thatstory was the truth? A:We couldn?t ascertain that it was the truth. Q:Why is that? A:Upon walking from one side of the jobsite to the other, a thirdharness and lanyard were not found anywhere, either in the cabs of thefront-end loader or the bulldozer or anywhere within the area ? the workarea. Q:Did he ever mention where it was? A:He never mentioned where it was. Q:Okay. How long did you observe him working without a harness? A:As I stated before, approximately 15 to 20 minutes prior to ourarrival at the job site. Q:So, is this from time that you noticed it or is this while walkingapproaching the site? A:Yes, sir. Q:Now, what did Mr. Olvera do to respond to this violation? A:We asked Mr. Olvera where his harness and lanyard were and he neveranswered our question. Also, while I was taking photographs of the waythat the anchor, horizontal anchor line was being used and placed, Inoticed that one of the individuals in the short-sleeved shirt with theblue hard hat on, physically took his harness off, as shown inphotograph C-20. And while observing that, I noticed that thatindividual in the short-sleeved blue shirt gave it to the individual inthe checkered shirt, who then gave it to Mr. Olvera, who put it on. And,meanwhile, the individual in the short-sleeved shirt walked away fromthe jobsite never to return. (Tr. 60-61). When questioned about his reasons for putting on a crewmember?s harness, Mr. Olvera testified that he was testing it and thatJohn Ray told him the harness was too loose. John Ray could not havetold him this, because he arrived at this area after Mr. Olvera put onthe harness, as Mr. Cooley testified. Mr. Olvera testified that he hadplaced his harness in his truck when he went to the bathroom. Mr.Olvera?s truck was in the immediate area of the slope. When asked forhis harness he did not retrieve his equipment from the truck and did nottell the inspectors where the harness was located. Mr. Olvera?stestimony is not credible and is rejected. Mr. Olvera?s lack of appreciation and understanding of theneed for appropriate fall protection is shown, not only by his failureto wear a safety harness on this slope, but also by permitting anddirecting two employees under his supervision to wear their harnessesbackwards for at least 45 minutes. Mr. Ray?s lack of understanding offall protection requirements is shown by his acceptance and validationof the practice of wearing harnesses backwards as making the employees?work easier. All employees involved, including two supervisory employees,failed to follow fall protection requirements. This demonstrates a lackof understanding which is a direct result of a breakdown incommunication of any safety rules that might have been issued by theRespondent. It also demonstrates a lax safety program. Mr. Ray testified that he inspected this site twice on theday of the OSHA inspection. Mr. Ray could not have found obvious fallhazards as he did not recognize or understand the hazard of employeeswearing harnesses backwards. The inspections were inadequate attempts todiscover violations by the Respondent. An individual must first knowwhat is a violation before he can determine whether one exists at anygiven time. The Respondent?s disciplinary program was also flawed andinconsistent. Mr. Olvera was given a written warning for failing to wearfall protection while working on the slope on September 11, 2003.Neither he nor the two employees in his crew, however, were givenwarnings, reprimands or suspensions for improper wearing of the safetyharnesses. No mention of this condition was even made in Mr. Olvera?swarning letter (Exh. R-4). This suggests ineffective enforcement. The above demonstrates a lax safety program which was noteffectively communicated or enforced. See \/Structural Building SystemsInc., supra\/. The Fifth Circuit has recognized the need to demonstrateeffective communication and enforcement of company work rules to provethe defense of unpreventable employee misconduct. \/H. B. Zachry Co. v.OSHRC\/, 638 F.2d 812, at 819 (5^th Cir., Unit A, March 2, 1981); \/FloydS. Pike Electrical Contractors, Inc. v. OSHRC\/, 576 F.2d 1257 (5^th Cir.1978). Both cases involved alleged employee misconduct. In \/Pike,supra \/at 77, the court stated: In view of the working foreman?s obligation, not only to observe therules, but to insure that the rules were observed by his men, thecompany?s failure to make any further inquiry or take any furthercorrective action is particularly significant. Because the behavior of supervisory personnel sets an example at theworkplace, an employer has?if anything?a \/heightened\/ duty to ensure theproper conduct of such personnel. Second, the fact that a foreman wouldfeel free to breach a company safety policy is strong evidence thatimplementation of the policy was lax. \/National Realty and Construction Co., Inc. v. O.S.H.R.A.C., \/160U.S.App.D.C. 133, 143, 489 F.2d 1257, 1267 n. 38 (1973). While OSHA doesnot require an employer to inscribe a safety regulation on parchment orchisel it in stone, neither does it permit him to treat the rule as ifit were written in sand. The Respondent failed to prove its defense of unpreventableemployee misconduct. Penalty Assessment Section 17(j) of the Act requires that when assessingpenalties, the Commission must give ?due consideration? to (1) the sizeof the employer?s business, (2) the gravity of the violation, (3) thegood faith of the employer, and (4) the history of previous violations.19 U.S.C. ? 666(j). The Commission has wide discretion in penaltyassessment. \/Kohler Co., \/16 BNA OSHC 1769, 1776 (No. 88-237, 1994). Yates is an employer with approximately 6,000 employees. Ithas no history of violations, which were affirmed in the last three years. Generally, the gravity of the violation is the primaryconsideration in assessing penalties. \/Trinity Industries, Inc.,\/ 15 BNAOSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particularviolation ?depends upon such matters as the number of employees exposed,the duration of the exposure, the precautions taken against injury, andthe likelihood that any injury would result.? \/J. A. Jones ConstructionCo.\/, 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). This was a three-employee crew. The foreman had no fallprotection, and was exposed to a 65-foot fall while working on a slopedsurface for at least 15 to 20 minutes. He permitted and directed twoemployees in his crew to wear safety harnesses improperly while workingon the same slope for at least 45 minutes. If these employees fell fromthe slope, the likely result would be death or serious physical injury.Based on these factors, a penalty of $5,000.00 is assessed for theviolation of 29 C.F.R. ? 1926.501(b)(1), and a penalty of $4,000.00 isassessed for the violation of 29 C.F.R. ? 1926.502(a)(2). FINDINGS OF FACT ANDCONCLUSIONS OF LAW The foregoing decision constitutes the findings of fact andconclusions of law in accordance with Federal Rule of Civil Procedure 52(a). ORDER Based upon the foregoing decision, it is ORDERED that: 1. Citation No. 1, Item 1, alleging a serious violation of29 C.F.R. ?1926.501(b)(1) is affirmed and a penalty of $5,000.00 isassessed. 2. Citation No. 1, Item 2, alleging a serious violation of29 C.F.R. ? 1926.502(a)(2) is affirmed and a penalty of $4,000.00 isassessed. \/s\/Stephen J. Simko, Jr. STEPHENJ. SIMKO, JR. Judge Date: December 10, 2004″