By: Geoffrey S. Pope Published: September 2019

Fall Protection Citations Vacated Due to Lack of Proof of the Employer's Knowledge of the Violations

Every OSHA violation has four necessary elements, each of which must be proved by the Secretary, by a preponderance of the evidence, if the employer contests the citation:  (1) the applicability to the facts of the standard cited; (2) the employer’s failure to comply with the standard: (3) employee exposure or access to the hazard: and (4) the employer’s actual or constructive knowledge of the violative condition.

 “Constructive knowledge,” a sufficient substitute for actual knowledge of the violation, means that, if the employer exercised reasonable diligence, it could have resulted in the employer learning of the violation.

In Secretary v. Bergelectric Corp, the employer was engaged in installing the electrical system for the renovation of a 20,000 square foot casino on tribal lands in California.  One of its employees, while installing conduit above the ceiling, fell 24 feet to the casino floor, and suffered broken ribs and fractures to his spine.  It was federal OSHA (and not California’s state-administered “little OSHA”) that investigated, as federal OSHA has jurisdiction where the alleged violations occur on tribal lands.

Following its inspection, OSHA tagged the employer for a single, “Other Than Serious” paperwork violation (for failing to correctly document the worker’s fall on an OSHA 300 log) and three “Serous,” fall-protection violations.  The three items were (1) failure to protect the employee by the use of guardrail systems, safety net systems, or personal fall arrest systems, while he was working at a height of six feet or more; (2) two workers having connected their lanyards to a single anchorage connector while installing conduit; and (3) a worker having tied off by wrapping his lanyard around a structural member of the building, and then using a non-locking snaphook to hook the lanyard directly to itself.

The fall-protection citation items were “grouped” for adjudication, it being uncontroverted that all three related standards applied, had been violated, and that the respondent’s employees had been exposed to the hazard of a fall of 24 feet or more.

The fall had occurred on the third day of a three-day period, during which there occurred several disconcerting incidents, in which employees were at risk of falls.  On the first day, an employee assigned to hang conduit below the hard lid was instructed to use a scissor lift to access the ceiling, and string the conduit from the bottom.  Instead, the employee opted to use the lift to go above the hard lid and, while walking the beams above the hard lid, he slipped, and his foot broke through the drywall.  Fortunately, this employee, because he was equipped with appropriate fall-arrest equipment, fell no further.  The errant employee had not installed decking prior to working above the hard lid, but the foreman remedied that, by having the decking installed later on the same day.  The employee was reprimanded for working above the hard lid without permission, and a “tailgate talk” was directed for the following day.

At the trial of the citations issued two days later, the Secretary sought to characterize the foregoing incident as a “near miss” (and violative conduct) but the ALJ viewed it as an incident not involving any fall protection violations.

On the second day, two employees – Ron Castro, and “R.S.” (the employee who would be injured on the following day) were instructed to stage conduit and materials above the hard lid for installation the following day.  This involved putting all the necessary materials into the lift, unlading them onto the beams just above the lid and next to the scissor lift, and securing them to the framework.  The testimony was that neither Castro nor “R.S.” needed to exit the lift the complete the tasks assigned.

However, Castro did get out of the lift to install a beam strap at a location close to where work would be performed on the following day.  To do this, Castro attached a lanyard to his harness, looped the lanyard around a beam, and attached the slip back onto itself.   Castro then crawled along the beams above the hard lid, attached the beam strap, and returned to the scissor lift.  Castro spent about 5 minutes outside the lift, and affixed his lanyard in a manner forbidden by one of the standards that would be cited on the following day, but he completed his task without incident.

On the day of the accident, per the trial testimony of Pete Evans, a foreman, Evans was checking on various crews at work at about 7:45 A.M., when he viewed R.S. crashing through the hard lid, and falling 24 feet to the casino floor.  R.S. and Castro had been above the hard lid for approximately one hour.  Post-accident investigation revealed violations of both the project’s Activity Hazard Analysis, and three OSHA fall-protection standards.  R.S. and Castro had connected their lanyards to the same anchor point, no plywood decking had been installed in the work area above the hard lid, and R.S.’s lanyard was found hanging from a notice in an angle beam, indicating it was neither attached to the beam strap, nor to the D-ring on the back of R.S.’s harness.

The foreman testified he had not completed his “competent person” inspection of the decking and fall protection being used, because he had awaited Castro’s call to go up in the lift to do so, but Castro never called.

Since all of the other elements of the violations were conceded, and actual knowledge of the hazard was not alleged, constructive knowledge became the determinative issue.  The Secretary argued that respondent’s foremen should have been aware of the violations occurring above the hard lid, because employees broke fall protection rules on three consecutive days.  This, the Secretary concluded, proved that Respondent had failed in at least one of:  clearly defined rules, adequate training, timely and thorough inspections, or a progressive disciplinary program.

The respondent countered by arguing that it could not have known about the violations committed by R.S. and Castro, because they were out of view while above the hard lid, its foremen provided frequent fall protection training, and it had a documented history of progressive enforcement of its safety rules.

In deciding whether the employer had exercised reasonable diligence, the ALJ engaged in a detailed examination of the evidence.  Ultimately, he vacated all three fall-protection citation items. 

The Court was unpersuaded that the incidents of the preceding days established deficient work rules and training.  The ALJ found that R.S. and Castro could not have been observed from the ground 24 feet below, through a hole in the ceiling, with a view obstructed by the scissor lift.  The ALJ found Bergelectric’s training regime to address the violations cited, and overall to be “thorough in terms of its content, regularity, and utilization of classroom and on-the-job, practical training.”

Following a detailed examination of the evidence concerning both the inspections performed by Bergelectric (which the ALJ found to be “thorough and responsive to the hazard present”) and its disciplinary program.  As to the latter, the ALJ set Bergelectric apart from the many employers who have an admirable “paper policy,” but seldom act upon it, and concluded that the respondent’s disciplinary program was “thorough and well-implemented.”

You should not be liable for an OSHA  violation, if you neither knew, nor could reasonably have been expected to know of it.  You must keep in mind, of course, that actual knowledge, including that of any supervisory personnel, will support a violation, and it is imperative that the employer exercise, at all times, reasonable diligence, directed to discovering and correcting safety and health violations.

While defenses such as a lack of constructive knowledge (and the “unpreventable employee misconduct” are easy to assert, but challenging to establish, you should discuss with counsel whether they are realistic grounds for a contest proceeding, anytime your company is cited for an alleged OSHA violation.

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