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ALJ Vacates Citation for Failure of Proof Despite the Employer's Failure to Protect Its Workers

07 December 2021

When a client is cited for alleged OSHA violations, it’s a perennial — and often difficult — question as to whether, or in what circumstances, all or some of the  items should be contested.

While it’s rumored that penalties for OSHA violations may be increased (as much as tenfold) in the near future, historically the penalties have been sufficiently small, that the disproportion between the legal fees and expenses involved in litigating a contest proceeding before the OSH Review Commission, and the penalties at stake, has usually counseled in favor of striking a quick compromise, if one is to be had, and moving forward.

In addition to the Secretary’s advantage of having at his disposal a corps of specialized lawyers paid by the taxpayers. (and the dearth of private attorneys experienced in handling such matters) there are technical and procedural advantages favoring the government in citation contest proceedings. 

Of course, OSHA infractions are a blemish on an employer’s safety record, and “Willful” and “Repeat” violations (in addition to carrying penalties that can run into six figures per item) can impair an employer’s ability to win contracts. (So, too, can an accumulation of “Serious” infractions). Every employer likes to be seen as safety-conscious.  Many business owners take citations very personally, and it’s irksome to be slapped with a substantial monetary penalty, due possibly to a lapse on the part of a careless employee.

But while the OSH Review Commission is no “kangaroo court,” and its Administrative Law Judges, in my opinion (based on having read hundreds of published opinions over the years) .are knowledgeable and conscientious, I have perceived some reluctance to discount the testimony of OSHA inspectors. My belief is that a defense based on legal grounds offers the respondent better chances than one that would require the ALJ to discredit the testimony of an OSHA Compliance Officer.

I believe the most fertile grounds for success in an OSHA contest proceeding are a thorough understanding of the elements of the Secretary’s case, and (if the case goes to trial) close attention to the proofs. If the attorney representing the employer is both attentive and well-prepared, an argument to the ALJ that the Secretary has failed to prove any element of his case by a preponderance of the competent and admissible evidence, will often win the day.

It sometimes comes as a surprise to an employer that the ALJ, where warranted, will vacate a citation, even where there was an injury (actually, an injury, even a fatality, is legally irrelevant) and despite the employer’s conduct having been less than exemplary. However, the Secretary’s failure to prove even a necessary element of his case is probably the most common basis for citation items being vacated.

A striking example of this is the case of Secretary v. George Weis Co. The employer in that case was a family-owned drywall, ceiling, and plaster contractor, working as a subcontractor on a hotel construction project in Missouri.

The employer had a two-man crew installing soffits underneath a sun deck about 26 feet above grade.  The foreman installed the soffits from the bucket of an aerial lift located just below the sun deck, while the second worker knelt on the edge of the sun deck, just inside the wire rope guardrails, and handed materials to the foreman.

The worker on the roof, intending to rise to his feet, grabbed the mid-rail and pushed down, in order to support himself. The mid-rail gave way, and as it did so, the worker fell headfirst through both the mid-rail and top-rail onto the aerial lift.  Although the worker, fortunately, did not plunge to the ground, he was badly injured when he tumbled into the bucket.

Subsequent inspection by OSHA showed that the c-clamps, which allowed the wire ropes to loop around the stanchions and clamp back onto themselves, had not been adequately tightened. The OSHA inspector determined that a contractor had removed the guardrails from the sun deck to deliver materials, and failed to re-set them properly. Although the employer proffered testimony that it had inspected the guardrail, such inspection, if it occurred at all, was merely visual, and neither the employer nor the general contractor, following the removal of the guardrail to allow the materials delivery, had physically tested it to ensure that it met the standard requiring that it be capable of withstanding a force of at least 200 lbs., applied within 2 inches of the top edge, in any outward or downward direction.

The employer was cited under 29 CRF 1926.502(b)(3) and timely contested the citation. The Secretary had the obligation to prove at trial (1) the applicability of the standard; (2) that the standard was violated; (3) employee access to the cited condition; and (4) the employer’s actual or constructive knowledge.

Following trial, the administrative law judge, in his decision, had no difficulty in finding that the standard applied, and that the employer had a duty to provide fall protection to the injured employee. Since the guardrail was the sole means of fall protection deployed, the ALJ found that both the top-rail and the mid-rail needed to satisfy the 200 lbs. of force requirement.

Employee exposure was obvious, the ALJ ruled, as the injured employee had been working next to the guardrail for about two hours when the mishap took place. Plainly, given that the fall occurred upon the employee having grabbed the guardrail to support himself as he stood up, he was exposed to the allegedly defective condition.

The complainant had established constructive knowledge, the Court also found, as (notwithstanding some inconsistent testimony on this issue) the respondent had failed to discharge its obligation to perform a “careful and critical examination” necessitated by the location of the work, the potential gravity of injury, and lack of any additional means of fall protection. The foreman’s claim of having tugged and pulled on the rope, the ALJ found, was unconvincing and. in all events, insufficient.

Despite the foregoing, and while emphasizing that he was not finding that the employer had acted properly, the ALJ vacated the citation for lack of testimony or documentary evidence that a man of the injured worker’s height and weight, performing the activities engaged in at the time of the accident, would not have imposed more than 200 lbs. of force on one or more of the wire guardrails. The ALJ distinguished several cases cited by the Secretary, finding that in the case before him, unlike the cases cited, there was lacking “objective and  patently obvious reasons” why the guardrail could not support the required force.

“This case,” the ALJ concluded, “highlights the importance of the Complaint’s burden of proof, and the distinction between failing to prove a violation and whether a violation, in fact, existed.”  The employer in Weis “failed to take appropriate steps to ensure its employees were not exposed to hazardous conditions,” but while it was likely, even probable, that the guardrail could not have met the specific terms of the standard, the Secretary failed to prove it, wherefore the citation had to be vacated.


Geoffrey S. Pope, an attorney, is Of Counsel to the construction law firm of Welby, Brady & Greenblatt, LLP, with its main office in White Plains.  The articles in this series do not constitute legal advice, and are intended for general guidance only.