UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

MARTY J. WALSH, Secretary of Labor, 

United States Department of Labor, 

Complainant, 

v. OSHRC Docket No. 20-1192

GREENBRIER CENTRAL LLC,

Respondent. 

DECISION AND ORDER

Attorneys and Law firms 

Felix Marquez, Attorney, Office of the Solicitor, U.S. Department of Labor, Dallas, TX, for 

Complainant. 

Julie O’Keefe, Attorney, Armstrong Teasdale LLP, St. Louis, MO, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge. 

I. INTRODUCTION

Greenbrier Central LLC manufactures tank railcars at a facility in Marmaduke, Arkansas. 

On January 22 and 23, 2020, the United States Department of Labor, through its Occupational 

Safety and Health Administration (OSHA), conducted an inspection of the facility in response to 

a report of an injury sustained by an employee who required hospitalization.1 Two OSHA 

compliance safety and health officers (CSHOs) conducted the inspection and found no violation 

of the Occupational Safety and Health Act of 1970, (the Act), 29 U.S.C. §§ 651-78, related to the 

reported injury.2 One of the CSHOs, however, observed Greenbrier employees working near 

openings atop railcars without the use of fall protection. It was his opinion that the employees were 

1

The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his 

authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order 

8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety 

and Health, 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding Order No. 1-2012, 77 Fed. Reg. 3912 (Jan. 25, 2012) 

(Order No. 1-2012 was in effect when the citation was issued). The terms “Secretary” and “OSHA” are used 

interchangeably herein.

2 A “Compliance Safety and Health Officer” is “a person authorized by the Occupational Safety and Health 

Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. §1903.22(d).
2 

exposed to fall hazards greater than four feet from the tops of the railcars to the lower levels of the 

railcars’ interiors.

On July 22, 2020, OSHA’s Little Rock, Arkansas, Area Director issued a one-item Citation 

and Notification of Penalty to Greenbrier,3 which alleged Greenbrier violated 29 C.F.R. § 

1910.28(b)(3)(i), by failing to ensure its employees were “protected from falling through any hole 

. . . that was 4 feet (1.2 m) or more above a lower level by” fall protection. The Secretary proposed 

a penalty of $10,603 for the Citation. Greenbrier timely contested the Citation, and the case was 

designated for Simplified Proceedings by the Chief Judge where the complaint and answer 

requirements were suspended.4 

The parties stipulated the Commission has jurisdiction over this action, and Greenbrier was 

a covered employer under the Act (Joint Status Report and Joint Prehearing Statement, ¶¶ c.I & 

c.II). Based on the stipulations and the record evidence, the Court concludes the Commission has 

jurisdiction over this proceeding under section 10(c) of the Act, and Greenbrier is a covered 

employer under section 3(5) of the Act. The Court held a bench trial remotely via Zoom on April 

27, 2021, and the parties filed post-trial briefs on July 2, 2021. 

The facts of the case are not in dispute. The only contested element of proof is whether the 

cited standard applies to the cited conditions (Tr. 221-24). The Secretary contends he established 

Greenbrier committed a serious violation of 29 C.F.R. § 1910.28(b)(3)(i). Greenbrier argues that 

the cited standard does not apply, based on its regulatory history and on OSHA-published 

documents related to the railcar industry. Greenbrier argues even if the Court finds the cited 

standard applies, the Secretary has failed to provide the railcar industry with fair notice of the 

application of § 1910.28(b)(3)(i) to railcars since prior published statements by OSHA indicated 

that “rolling stock” was exempt from citation under the Subpart D standards.5

Pursuant to Commission Rules 90 and 209, after hearing and carefully considering all the 

evidence and the arguments of counsel, the Court issues this Decision and Order, which constitutes 

3 The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed 

penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). 4 Although the Federal Rules of Evidence are generally inapplicable in simplified proceedings, the parties stipulated 

to their applicability, as authorized by Commission Rule 209(c) (J. Status Report and J. PreHr’g Statement, ¶ h). 5 OSHA categorizes railcars as rolling stock. See Notice of Reopening of the Rulemaking Record for Walking and 

Working Surfaces; Personal Protective Equipment (Fall Protection Systems), 68 Fed. Reg. 23,528, 23,529-30 

(proposed May 2, 2003) (to be codified at 29 C.F.R. pt. 1910) (“[R]olling stock includes covered and uncovered rail 

cars, hopper cars, tank cars, and trailers.”). Therefore, the terms “rolling stock” and “railcar” are used interchangeably 

herein.
3 

its final disposition of the proceedings under section 12(j) of the Act. 8 29 U.S.C. § 661(j). For the 

reasons indicated infra, the Court VACATES the Citation.

II. BACKGROUND

In July of 2019, The Greenbrier Companies acquired the manufacturing operations of 

American Railcar Industries, including the facility in Marmaduke, Arkansas. Greenbrier Central 

LLC, a subsidiary of The Greenbrier Companies, took over operations of the Marmaduke facility 

(Tr. 118, 135).6 Greenbrier manufactures tank railcars designed to haul liquid or gas commodities. 

The facility comprises several buildings (called shops) connected by rail lines. In the steel shop, 

steel components are rolled and welded together to form a tank. Employees then install “brake 

components, various handrails, ladders, [and] steps,” to the tank to transform it into a railcar. The 

railcar is placed on rails before it leaves the steel shop and moves only by rail thenceforth. After 

testing for quality assurance, the railcar is moved to either the new lining shop or the exterior 

coating shop (Tr. 156-58).

 In the new lining shop, employees blast the interior of each railcar to remove rust and mill 

scale formed during the rolling process. After blasting the interior, they install a lining to ensure 

the purity of commodities hauled by the railcar. The railcars are then inspected and “any little 

minor defects or flaws” are painted (touched up) by employees “typically with an artist brush or 

2-inch brush before the car is completed and sent over to the other paint shop.” (Tr. 137.) Thomas 

Friar, Greenbrier’s lining shop operations manager, stated he could inspect and touch up a railcar 

in 10 to 15 minutes. “But if someone may be newer, it might take a little longer. It is precision 

work, kind of tedious.” (Tr. 138.)7

 Touchup employees access the railcar tops by climbing stairs to a mezzanine level (Tr. 88). 

From there, they step onto the tops of the railcars. The tops of the railcars are curved and 

surrounded by steel railings bolted to the railcar tops to prevent exterior falls. An employee 

accessing a railcar top sits down next to two circular openings in the center of the top.8 The 

6 The Secretary issued the Citation to “Greenbrier Companies, Inc., d/b/a Greenbrier” on July 22, 2020. The parties 

stipulated the correct name of the cited company is “Greenbrier Central LLC.” (J. Status Report and J. PreHr’g 

Statement ¶¶ c.II & c.V; Tr. 7.) 7 The reported injury that triggered the OSHA inspection occurred in the new lining shop. The employee was injured 

while inside one of the railcars when he slipped and fell, injuring his hip. This incident is unrelated to the conditions 

atop the railcars cited in Item 1 (Tr. 136-37, 150-52). 8 Exhibit C-4 comprises a number of photographs showing railcars in the new lining shop. Photographs at Bates pages 

000020 and 000026 through 000030 show touchup employees sitting atop railcars as they work.
4 

openings are large enough to accommodate a ladder and allow a person to climb into and out of 

the railcar’s interior (Tr. 23-25, 45-46, 104-05, 126).9

 

Although people can intentionally climb through the openings to enter and exit the railcar 

interiors, the Greenbrier employees who appeared as witnesses did not think it was possible for 

anyone to fall through the openings. Friar “would not say it would be possible to fall in” the 

openings from the top of the railcar. “It’s small. There’s a lip that’s about 6 to 8 inches tall on the 

nozzle that would not allow your foot to slip inside of it or any other part of your body.” (Tr. 

142.)10 Sanford Cunningham, Greenbrier’s line shop superintendent, agreed that it was not 

possible for a person to fall through the opening (Tr. 105-106). Greenbrier plant manager Brent 

Bonvillain did not “see a risk” of an employee stepping into the opening while working on top of 

a railcar (Tr. 127).

Scott Sharpe is the senior environmental, health, and safety (EHS) manager at the 

Marmaduke facility. He is a certified safety professional and a certified hazardous materials 

manager (Tr. 171-72). Sharpe does not believe the openings in the railcar tops present a fall hazard 

to touchup employees. “[T]hey are seated at that time and that hole is a smaller hole. It would be 

very hard to fall into. . . . You have to have a specific reason to be up there. So, no one would just 

walk through and step into the hole either.” (Tr. 192.) He also thinks the 6- to 8-inch-high nozzle 

prevents employees from slipping into the hole (Tr. 193). 

Greenbrier notified OSHA on January 14, 2020, that an employee had been injured at its 

facility. The local OSHA area office assigned CSHO Stephen Heller and another CSHO to 

investigate the report. They arrived at the facility on January 22, 2020 (Tr. 18-19). After meeting 

with company representatives, the CSHOs conducted a walk-around inspection of the multibuilding facility (Tr. 20-21). While in the new lining shop, Heller observed three touchup 

employees sitting atop three railcars near the openings in the tops. He believed the employees were

exposed to fall hazards to the interiors of the railcars. He noted that the employees were not 

wearing harnesses or using any other form of personal fall protection (Tr. 21-23). 

9 The CSHO did not take measurements of the openings because he did not deem it safe to step onto the railcar tops 

(Tr. 58-59). It is undisputed that the holes were large enough for a person to fit through. 10 The raised nozzles encircling the railcar openings can be seen in the photographs at Bates pages 000020, 000021, 

and 000029 of Exhibit C-4.
5 

Following the inspection, Heller recommended that the Secretary cite Greenbrier for a 

violation of § 1910.28(b)(3)(v)(a).11 After reviewing the case file for the inspection, on July 22, 

2020, OSHA’s Little Rock, Arkansas, Area Director chose instead to cite Greenbrier for violating 

the standard at issue, § 1910.28(b)(3)(i) (Tr. 57-58, 74-75). 

III. THE CITATION

The fundamental objective of the Act is to prevent occupational deaths and serious injuries. 

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive 

regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for 

‘every working man and woman in the Nation.’” Martin v. Occupational Safety & Health Review 

Comm'n (CF & I Steel Corp.), 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). “The Act 

charges the Secretary with responsibility for setting and enforcing workplace health and safety 

standards.” Id. “To implement its statutory purpose, Congress imposed dual obligations on 

employers. They must first comply with the ‘general duty’ to free the workplace of all recognized 

hazards.” ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013). “They 

also have a ‘special duty’ to comply with all mandatory health and safety standards.” (Id.) 

“With respect to the latter, Congress provided for the promulgation and enforcement of the 

mandatory standards through a regulatory scheme that divides responsibilities between two federal 

agencies.” (Id.) “The Secretary establishes these standards through the exercise of rulemaking 

powers.” CF & I Steel Corp., 499 U.S. at 147. See 29 U.S.C. § 665. Pursuant to that authority, the 

standards at issue in this case were promulgated. Meanwhile, the Commission is assigned to 

conduct adjudicatory functions under the Act and serves “as a neutral arbiter and determine 

whether the Secretary's citations should be enforced over employee or union objections.” 

Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam). 

Under the law of the Eighth Circuit where this case arose,12 the Secretary establishes a 

prima facie case for the violation of an OSHA standard by showing: (1) “the cited standard applies 

11 Section 1910.28(B)(3)(v)(a) requires employers to ensure employees are 

protected from falling through a hatchway and chutefloor hole by . . . [a] hinged floor-hole cover that 

meets the criteria in § 1910.29 and a fixed guardrail system that leaves only one exposed side. When the 

hole is not in use, the employer must ensure the cover is closed or a removable guardrail system is 

provided on the exposed sides[.] 12 The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the circuit 

in which the violation allegedly occurred or where the employer has its principal office, and the employer also may 

appeal to the D.C. Circuit. See 29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Marmaduke, Arkansas, in 

the Eighth Circuit. Respondent’s principal place of business is in Lake Oswego, Oregon, in the Ninth Circuit. (See J. 

Status Report and J. PreHr’g Statement ¶¶ c.2). The Commission has held that where it is highly probable that a case 
6 

and that its requirements were not met”; (2) “employees were exposed to, or had access to, the 

violative condition”; and (3) “the employer knew or, through the exercise of reasonable diligence, 

could have known of this condition.” Jacobs Field Servs. N. Am., Inc. v. Scalia, 960 F.3d 1027, 

1033 (8th Cir. 2020) (quoting Omaha Paper Stock Co. v. Sec'y of Labor, 304 F.3d 779, 784 (8th 

Cir. 2002)). “Standards under the Act should be given a reasonable, commonsense interpretation.” 

Id. (quoting Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326 (8th Cir. 1981). 

Item 1: Alleged Serious Violation of § 1910.28(b)(3)(i) 

Item 1 alleges that Greenbrier employees “were performing touchup work on top of tanker 

cars. Employees were exposed to falls approximately 6 feet above the lower level without fall 

protection.” Although the Secretary does not specify in the alleged violation description that he is 

citing Greenbrier for alleged exposure to falls to the interior of the railcars (through the entry 

hatch), and not to the exterior of the railcars, interior falls are the focus of the cited standard and 

is the issue the parties litigated. “The cited standard addresses the hazard of falling through any 

hole that is four feet or more above a lower level, which in this instance would be the open hatch 

located where employees work at the top.” (Sec’y’s Br., p. 5.) 

The cited standard provides: “The employer must ensure: Each employee is protected from 

falling through any hole (including skylights) that is 4 feet (1.2 m) or more above a lower level by 

one or more of” covers, guardrail systems, travel restraint systems, or personal fall arrest systems.

Greenbrier stipulates it “did not provide the protections specified in 29 C.F.R. § 1910.28(b)(3)(i).” 

(Resp’t’s Br., p. 1.) Neither does it dispute the elements of exposure and knowledge.13 Greenbrier 

argues the cited standard does not apply to railcars or, if it does, the Secretary has failed to provide 

fair notice of its application to the regulated community. 

IV. ANALYSIS

The cited standard is found in Subpart D, the “Walking-Working Surfaces” provisions of 

the general industry standards. Section 1910.21(a), the “Scope” provision, provides Subpart D 

will be appealed to a particular circuit, it generally has applied the precedent of that circuit in deciding the case— even 

though it may differ from the Commission’s precedent. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96- 

1719, 2000). The Court applies the precedent of the Eighth Circuit in deciding the case where it is highly probable the 

case would be appealed. 

13 Under Respondent’s Issues of Law in the parties’ J. Status Report and J. PreHr’g Statement, Greenbrier lists 

“Whether the issued citation is properly classified as Serious?” (Id. at ¶ b.2.3). Greenbrier does not address the 

characterization of the cited item in its brief but states it “believed there was no risk of employees falling through the 

holes on top of the car because the holes were too small to fall through and, furthermore, the nozzles would prevent 

someone from sliding into them.” (Greenbrier’s Brief, p. 35.)
7 

“applies to all general industry workplaces. It covers all walking-working surfaces unless 

specifically excluded by an individual section of this subpart.” Section 1910.28, the “Duty to have 

fall protection and falling object protection” provision, “requires employers to provide protection 

for each employee exposed to fall and falling object hazards.” 29 C.F.R. § 1910.28(a)(1). 

Section 1910.21(b) defines a “walking-working surface” as “any horizontal or vertical 

surface on or through which an employee walks, works, or gains access to a work area or 

workplace location.” It is undisputed Greenbrier’s touchup employees gain access to their work 

areas by stepping onto the tops of railcars and then sitting on the surfaces of the railcars to perform 

touchup work. The tops of railcars are, therefore, walking-working surfaces. Section 1910.21(b) 

defines a “hole” as “a gap or open space in a floor, roof, horizontal walking-working surface, or 

similar surface that is at least 2 inches (5 cm) in its least dimension.” Here, the openings at issue 

allow people to enter and exit the railcars. The openings are holes. 

A. The Cited Standard Applies

Based on these definitions and the language of § 1910.28(b)(3)(i), the Secretary argues the 

standard manifestly applies to the cited conditions. Greenbrier contends the Court must consider 

supplementary documents issued by OSHA when determining the applicability of the cited 

standard. Greenbrier argue § 1910.28(b)(3)(i) does not apply to railcars based on the Secretary’s 

continued unwillingness to revise Subpart D. “Protection against falls from railcars is not 

specifically addressed in Subpart D. A review of the lengthy regulatory history of Subpart D 

demonstrates that OSHA gave extensive consideration over several years to the potential inclusion 

of railcars and chose not to include them.” (Resp’t’s Br., p. 17.) Greenbrier contends the Court 

should look to the regulatory history of Subpart D to determine its applicability to the cited railcars. 

According to Greenbrier, “[i]t is well-established that government agency preambles and opinion 

letters should be considered in order to gain an understanding of regulatory intent, regardless of 

whether a regulation is ambiguous.” (Resp’t’s Br., pp. 17-18). The Court does not agree. 

As the Supreme Court has admonished us, “the possibility of deference can arise only if a 

regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely 

ambiguous, even after a court has resorted to all the standard tools of interpretation.” Kisor v. 

Wilkie, 139 S. Ct. 2400 (2019). Here, the language of § 1910.28(b)(3)(i) is unambiguous. Subpart 

D applies to walking-working surfaces. The definition of walking-working surfaces encompasses 

the tops of railcars, onto which employees step and sit to perform work. The cited standard requires 
8 

employers to provide covers, guardrail systems, travel restraint systems, or fall arrest systems to 

protect employees who have access to holes in walking-working surfaces that are 4 feet or more 

above lower surfaces. The entry hatches on the tops of the railcars are holes that are more than 4 

feet above the interior floors of the railcars. None of these terms creates confusion, and the meaning 

of the cited standard is clear. Therefore, the Secretary has established § 1910.28(b)(3)(i) applies 

to the cited conditions. 

B. Greenbrier Lacked Fair Notice of the Cited Standard’s Applicability

As noted supra, Greenbrier argues even if the Court finds the cited standard applies, the 

Secretary has failed to provide the railcar industry with fair notice of the application of § 

1910.28(b)(3)(i) to railcars since prior published statements by OSHA indicated that rolling stock 

was exempt from citation under the Subpart D standards. The Court concludes OSHA’s prior 

published statements are relevant to Greenbrier’s argument that it lacked fair notice. 

1. The 1990 Proposed Rule 

OSHA originally adopted a walking-working surface standard in 1971 as “part of the initial 

package of standards promulgated by OSHA in 1971 under section 6(a) of” the Act. 75 Fed. Reg. 

at 28863. In 1973, OSHA published a proposed revision of Subpart D, but withdrew it in 1976 

because it was outdated. In 1990, OSHA proposed a new Subpart D that did not specifically 

address fall protection for railcars. It did, however, propose the following exemption at § 

1910.21(a)(1): 

(a) Scope and application. This subpart covers all walking and working surfaces 

that are used by employees, except as follows: 

(1) This subpart does not apply to surfaces that are an integral part of self-propelled, 

motorized mobile equipment[.] 

2. The Miles Memorandum

 In 1996, John B. Miles, Jr., the Director of OSHA’s Directorate of Enforcement Programs 

issued a memorandum regarding “Enforcement of Fall Protection on Moving Stock” to “clarify 

OSHA’s enforcement policy relating to fall hazards from the top of ‘rolling stock’ such as rail tank 

or hopper cars and tank or hopper truck or trailers.” (Ex. C-21, Bates p. 000154). The Miles 

Memorandum, which was corrected on February 6, 2009, clarifies that OSHA’s enforcement 
9 

policy “is that falls from rolling stock [] will not be cited under Subparagraph D.” (Ex. C-21, Bates 

p. 000155).14

3. The 2003 Notice of Reopening of the Rulemaking Record 

In 2003, OSHA published a notice of reopening of the rulemaking record and public 

comment period for Subpart D. 68 Fed. Reg. 23528 (May 2, 2003). OSHA stated that it was 

seeking additional comments because the 1990 proposal had become outdated by industry 

practices and equipment design. 

OSHA is requesting additional comment on whether rolling stock and selfpropelled, motorized mobile equipment should be covered or excluded from 

subpart D. . . . [R]olling stock includes covered and uncovered rail cars, hopper 

cars, tank cars, and trailers.

*** 

The preamble [to the 1990 proposed rule] also included examples of equipment that 

OSHA intended to exclude from coverage, but did not specify whether rolling stock 

were included in those examples (55 FR 13365). OSHA received comments saying 

that all rolling stock should be excluded from coverage (Docket S-041; Ex. 3-46). 

An OSHA memorandum issued to its Regional Administrators on October 18, 

1996, interpreted the proposal as excluding rolling stock from subpart D (Docket 

S-029; Ex. 1-16-2). In anticipation of a final revised rule, the memorandum directed 

OSHA inspectors not to cite rolling stock under subpart D. 

Id. at 23530. 

4. The 2010 Notice of Proposed Rule 

In 2010, OSHA issued a notice of proposed rulemaking for Subpart D where it defined 

rolling stock as “any locomotive, railcar, or vehicle operated exclusively on a rail or rails.” 75 Fed. 

Reg. 28862 (May 24, 2010). Thus, the railcars at issue meet OSHA’s definition of rolling stock. 

OSHA once again sought comments regarding the applicability of Subpart D to rolling stock. 

OSHA is requesting additional comment on whether specific regulations are needed 

to cover falls from rolling stock and commercial motor vehicles. Existing subpart 

D does not specifically address or exclude fall protection on rolling stock or motor 

vehicles from coverage. . . . OSHA is specifically seeking comment on whether it 

should include requirements specifying that when employees are exposed to falls 

from rolling stock and motor vehicles at heights greater than 4 feet, protective work 

practices, methods, or systems must be instituted. OSHA is also requesting 

comment on how it should define “rolling stock” and “motor vehicles,” or if the 

terms as defined are sufficiently inclusive.

Id. at 28867. 

14 See https://www.osha.gov/laws-regs/standardinterpretations/1996-10-18 (Aug. 19, 2021). 
10

Referring to the Miles Memorandum, OSHA conceded it “did not result in clear direction 

to the public or to OSHA’s field staff. . . . [T]he understanding of the 1996 memorandum also 

varied among commenters.” Id.

5. The 2016 Final Rule 

In 2016, OSHA published its final rule. 81 Fed. Reg. 82494 (Nov. 18, 2016). After an 

extensive listing in the preamble of comments regarding the applicability of Subpart D to rolling 

stock (Id. at 82505-09), OSHA concluded it would again defer clarification of the issue. 

Since the Agency did not propose any specific fall protection requirements for 

rolling stock or motor vehicles, OSHA has not included any in this final rule. 

However, it will continue to consider the comments it has received, and in the future 

the Agency may determine whether it is appropriate to pursue any action on this 

issue.

Id. at 82509. 

Fair Notice Analysis 

In Latite Roofing & Sheet Metal Co., Inc., 21 BNA OSHC 1282 (No. 02-0656, 2005), 

OSHA cited a roofing company for failing to provide fall protection to its employees. OSHA had 

previously cited the employer several times for the same conduct. Each time, the employer and 

OSHA had resolved the citations when the employer demonstrated the use of fall protection was 

infeasible, and it had developed an alternative fall protection plan in accordance with Subpart M. 

In developing the plan, Latite relied on a July 12, 1995, memorandum by thenDeputy Assistant Secretary of Labor James Stanley (the ‘Stanley memorandum’), 

which indicated that contractors complying with Subpart M's provisions for fall 

protection plans would not always have to demonstrate infeasibility or greater 

hazard at each project site. This memorandum also stated that “proper notice” 

would be given to employers if OSHA came across or developed abatement 

methods that were “equal to or better than those set forth in the attached plans.” 

Id. at *2. 

Despite the Stanley memorandum, OSHA went on to cite Latite several more times over 

the years for violating the fall protection standard. One of those citations resulted in a Commission 

trial where the judge affirmed the violation. The Commission reversed the judge’s decision and 

held, 

Having considered the record as a whole, particularly the parties' fifteen-year 

history of inspections and citations involving residential fall protection, followed 

by settlements, along with possible confusion engendered by the Stanley 

memorandum, we conclude that Latite lacked fair notice that its conduct at the time 
11

of the subject citation did not comply with the standard. See, e.g., Martin v. OSHRC 

(CF&I), 499 U.S. 144, 158 (1991) (Secretary's decision to use citation as initial 

means to announce interpretation may bear on adequacy of notice to regulated 

parties); cf. Gen. Elec. Co. v. EPA (“GE”), 53 F.3d 1324, 1328 (D.C. Cir. 1995) 

(even if agency's interpretation is reasonable, penalty cannot be sustained unless 

regulated party had fair notice of interpretation). 

Id. at *3. The Commission based its conclusion in part on Latite’s reliance on the Stanley 

memorandum. 

Latite could reasonably have interpreted the Stanley memorandum as meaning that 

it was not required to make a site-specific showing of infeasibility at all similar 

residential building sites, and that it would be notified before being cited if OSHA 

was planning to change its position and insist that Latite use a previously 

unemployed fall protection system. See GE, 53 F.3d at 1333-34 (unclear policy 

statement contributed to lack of fair notice).

Id. at *4. The Commission also considered the history of the standard’s enforcement and the 

inconsistency of the Secretary’s conduct in addressing the standard. 

Given the Secretary's lengthy and confusing course of conduct with Latite, we 

conclude Latite lacked notice at the time of the citation that it was under a duty to 

implement one or more of the fall protection systems the Secretary proposed, and 

therefore could no longer rely on its alternative plan. See Diebold v. Marshall, 585 

F.2d 1327, 1336-37 (6th Cir. 1978) (looking at ‘collection of several factors’ 

including common practice and pattern of administrative enforcement; while 

employers are under duty of inquiry, duty is not triggered where employer looking 

at language of regulation or industry practice would believe it was exempt from 

standard's requirements). See also GE, 53 F.3d at 1332 (confusion and 

disagreement within agency is evidence that employer did not receive fair notice).

Id. 

The Commission addressed the Miles Memorandum in Erickson Air-Crane, Inc., No. 07-

0645, 2012 WL 762001 (OSHRC March 2, 2012), with regard to a citation for a violation of the 

general duty clause. The Miles Memorandum states the Secretary may cite an employer for a fall 

hazard from railcars under the general duty clause “where feasible means exist to eliminate or 

materially reduce the hazard” from the tops of railcars (Ex. C-21, Bates p. 000155). The Secretary 

contended the Miles Memorandum supported citing Erickson for a general duty clause violation: 

“[T]he Secretary argue[d] that the Memorandum’s reference to rolling stock ‘positioned inside or 

contiguous to a building or other structure where installation of fall protection is feasible’—the 

one specific circumstance identified in the Memorandum where fall protection on rolling stock is 
12

required—put Erickson on notice that it had to provide fall protection under the circumstances at 

issue.” Erickson, 2012 WL 762001, at *4. The Commission disagreed: 

[T]he Memorandum did not provide such notice, particularly considering (1) its 

broad exemption of all rolling stock from the fall protection standards, limited only 

by the very specifically described circumstance regarding rolling stock located 

inside or next to a building or structure, which is inapplicable here, and (2) the 

indication that under the general duty clause, the agency only requires 

administrative measures that reduce fall exposure, which are clearly distinct from

the fall protection methods sought here by the Secretary. In these circumstances, 

we find that Erickson did not have notice of any duty to use fall protection 

equipment or provide the related training with respect to its tanker truck. See Miami 

Indus., Inc., 15 BNA OSHC at 1262-64, 1991 CCH OSHD at p. 39,739 (finding 

lack of notice where employer relied on OSHA's prior approval of abatement 

method). 

Id. at *5. 

Here, the Secretary interprets Erickson as supporting the applicability of § 1910.28(b)(3)(i) 

in this case, based on the Erickson Commission’s statement that “the policy described in the 

Memorandum regarding the enforcement of subpart D, the PPE standard, and the general duty 

clause as applied to tanker trucks that are not adjacent to a building or structure is consistent—the 

use of fall protection equipment is not considered feasible and thus, not required under any one of 

these provisions.” Id. at *4. Working backwards from the Commission’s reasoning, the Secretary 

argues that since Greenbrier’s touchup employees work “atop stock that is positioned inside of or 

contiguous to a building or other structure where the installation is feasible,” then the cited standard 

applies (Ex. C-21, Bates p. 000155). This interpretation ignores the context of the quoted language. 

The Miles Memorandum provides that when rolling stock is in or contiguous to a structure where 

installation is feasible, the Secretary may cite the employer for a violation of § 1910.132(d), found 

in Subpart I (Personal protective equipment). The Miles Memorandum provides a blanket 

exemption from citations under Subpart D, where the standard at issue is found. 

In another case, the Commission found the employer lacked fair notice where an OSHA 

“clarification letter” created more confusion than clarity. 

Our primary concern here is with the adequacy of the Secretary's notice to regulated 

parties. The interpretation of section 1910.212(b) that the Secretary advances in this 

case is inconsistent with a previous OSHA “clarification letter” dated November 2, 

1978, which is still available on OSHA's website. In the letter, which Oberdorfer 

introduced into evidence at the hearing and cited in its post-hearing brief, OSHA's 
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then Chief of Occupational Safety Programming states that “[m]achines that do not 

walk, move or present a tipping or falling-over hazard do not need to be anchored.”

On review, the Secretary provides neither a response to Oberdorfer's notice 

argument regarding this letter nor any rationale for changing her 

interpretation. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 

(D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) (agency changing course must 

provide a reasoned analysis for the change). Under these circumstances, we cannot 

find that the Secretary's interpretation is reasonable or that Oberdorfer was afforded 

fair notice of the Secretary's interpretation that the standard applied to machines 

with pre-punched holes in the bases in the absence of evidence showing 

instability. See Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986) 

(due process prevents deference from validating the application of a regulation that 

fails to give fair warning of the conduct it prohibits or requires). 

Oberdorfer Indus., Inc., 20 BNA OSHC 1321, 1330-31 (Nos. 97-0469 & 97-0470, 2003). 

Here, as in Oberdorfer, the Secretary failed to offer a response to Greenbrier’s notice 

argument, despite Greenbrier’s pretrial statement that fair notice was one of only three issues in 

dispute. See J. Status Report and J. PreHr’g Statement, ¶ b.2.2 (“Whether the Secretary has 

afforded the regulated community fair notice of his position in this case that the cited regulation is 

applicable to the tank car referenced in the citation?”). The Secretary does not mention fair notice 

in its post-trial brief, and he provides no rationale for contravening the explicit instructions of the 

Miles Memorandum. 

As with the Stanley memorandum, the Miles Memorandum served to muddle, rather than 

illuminate, the issue. Nonetheless, since 1996, the Secretary has signaled through the Miles 

Memorandum that OSHA’s enforcement policy is that “falls from rolling stock [] will not be cited 

under Subparagraph D.” Significantly, even though OSHA did not codify a rolling stock exclusion 

in the 2016 final rule, the Miles Memorandum continues to represent OSHA’s current enforcement 

policy since it has not been countermanded by a subsequent enforcement policy and still appears 

on OSHA’s web page under its “Standard Interpretations” tab. Under these circumstances, the 

Court concludes Greenbrier lacked fair notice that it was required to comply with § 

1910.28(b)(3)(i) and therefore, Item 1 must be vacated. Accordingly, 

V. ORDER

IT IS HEREBY ORDERED THAT Item 1 of the Citation is VACATED. 
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SO ORDERED. 

 /s/ 

JOHN B. GATTO, Judge 

Dated: September 3, 2021 

Atlanta, GA