Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 OSHRC DOCKET NO. 18-0311 

Appearances:

Timothy Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado

For Complainant

David Enget., Magnum Contracting Inc., Fargo, North Dakota

For Respondent

Before: Judge Patrick B. Augustine – United States Administrative Law Judge 

DECISION AND ORDER

I. Procedural History

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) 

conducted an inspection of a Magnum Contracting, Inc. (“Respondent”) worksite in Fargo, North 

Dakota on January 24, 2018. (Stip. No. 17). As a result of the inspection, OSHA issued a Citation 

and Notification of Penalty (“Citation”) to Respondent alleging one serious violation of the Act.

Respondent timely contested the Citation. (Notice of Context “NOC”). The Court held pre-trial 

telephone conferences on April 25, 2018 and July 31, 2018. (Order, April 25, 2018); (Order, Aug. 

1, 2018). Complainant requested summary judgment via a motion which contained Joint 

Stipulations of material and relevant facts. While Respondent agreed to the Joint Stipulations of 

SECRETARY OF LABOR,

 Complainant,

 

 v. 

MAGNUM CONTRACTING INC.,

 

 Respondent.
2

material and relevant facts, it argued the Joint Stipulations and its responses entitled it to judgment 

in its favor. (Compl’t Motion for Summary Judgment); (Resp’t Response to Motion for Summary 

Judgment). The Court gave both parties the opportunity to reply to the opposing party’s arguments 

on this issue of summary judgment. (Order, Aug. 1, 2018). 

Although the motion and the parties’ responses are framed within the summary judgment

context, the motion and responses are mischaracterized. Both parties agreed that Commission Rule 

61 applied to this case. (Order, April 25, 2018). Commission Rule 61 states, in part, “[A] case may 

be fully stipulated by the parties and submitted to the Commission or Judge for a decision at any 

time.” 29 C.F.R. § 2200.61 (2018). The parties fully stipulated to all material and relevant facts. 

As such, the Court will treat the request as one for a decision based on stipulated record under 

Commission Rule 61.1

II. Jurisdiction

The parties stipulated the Act applies and the Commission has jurisdiction over this 

proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). (Stip. No. 1); (Order, April 25, 

2018). Respondent further stipulated, at all times relevant to this matter, it was an employer 

engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 

652(5). (Stip. No. 3); See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

III. Stipulations

The parties submitted Joint Stipulations to the Court, which are set forth below:

1. The Administrative Law Judge has subject matter and personal jurisdiction over the dispute 

in this case.

 

1. Furthermore, applying the standards for summary judgment is inappropriate for a stipulated record. The judge’s 

function on a motion for summary judgment is to determine whether there are genuine, material, disputed issues for 

trial; it is not to weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (2005). Here all the relevant

and material facts were stipulated and are undisputed.
3

2. The Secretary employs Casey Bedingfield as a Compliance Safety and Health Officer for 

the Occupational Safety and Health Administration (“OSHA”), assigned to OSHA’s 

Bismarck, North Dakota, Area Office. He served in that position at all pertinent times.

3. Magnum is, and was at all pertinent times, a North Dakota corporation engaged in 

construction activities specializing in steel erection. Magnum is an employer and its 

activities affect interstate commerce. 

4. On January 17, 2018, Magnum was engaged in construction work, erecting a steel building 

at 3270 Veterans Boulevard, Fargo, North Dakota, 58104 as part of new commercial office 

space called Eagle Ridge Plaza. 

5. [redacted] and Austin Brown were employed by Magnum as supervisors on the project. 

Both had responsibility for performing specific construction tasks as well as managing the 

work of other employees.

6. Toward the end of the work shift, [redacted] and Brown decided to try to weld one 

additional area on the building before work ceased for the day. Magnum’s two personnel 

lifts were in use. [redacted] and Brown had been using a forklift for a couple of days to lift 

both materials and personnel. They decided to utilize the forklift to raise [redacted] up to 

the second floor of the building so that [redacted] could perform welding.

7. [redacted] and Brown attached a Haugen work platform to the forks of the JLG G9-43A 

telehandler they had been using. The platform has a screened floor and removable sides, 

which were properly attached at the time. It is a temporary structure which can be taken 

apart and moved from job site to job site. This platform is rarely used, which has been only 

once or twice a year. The use is very limited due to the fact it requires two employees, 

rather than one employee on a boom lift. The telehandler is known as a rough terrain 

forklift; it has a boom with forks attached and large knobby tires for use on uneven ground. 

Attached to these stipulations are pages from Haugen’s website regarding its platforms, 

and accurate photos of the platform and forklift involved in the accident. 

8. [redacted] and Brown attached the platform by placing the forks inside two pieces of

channel iron attached under the platform designed for that purpose. The platform had been 

manufactured with pins designed to secure the platform to the forks but had been modified 

to accept a variety of fork lengths and eliminate the pins. Instead, Magnum always provided 

a chain with the platform so that the platform could be chained to the forklift’s mast. But 

[redacted] and Brown did not use it. They did not secure the platform to the forklift in any 

other manner either. The platform was supported only by the forks. 

9. [redacted] then climbed onto the platform with welding equipment. Brown raised the 

platform approximately twelve feet (12’) into the air and drove the forklift toward the 

building.

10. While the forklift was in motion, the platform slid off the forks and crashed to the ground 

below. [redacted] fell out of the platform and onto the ground. He suffered injuries 

including three broken ribs and a partially collapsed lung.
4

11. Magnum does not have a work rule prohibiting driving forklifts while employees are in 

work platforms or requiring the platforms to be secured to the forklifts. [redacted]’s 

signature appears on a February 20, 2015 sign-in sheet for a toolbox talk entitled “Elevating 

Personnel with Forklifts.” Items in the written material which [redacted] signed include 

“The platform must be securely attached to the forks or mast” and “The platform must not 

travel from point to point with the work platform elevated at a height greater than 4 feet 

while workers are on the platform.” There is no evidence that Brown had ever received any 

such training.

12. Both [redacted] and Brown completed a national Safety Council forklift operator’s course, 

but it did not address the issue of forklifts transporting employees in work platforms which 

are not secured to the forklifts. [redacted] and Brown both completed an OSHA approved 

10-hour course on construction topics, but the topic is not addressed there either.

13. The operations and safety manual for the JLG G9-43A telehandler, as well as a sticker 

inside the cab, state that that forklift should not be driven while personnel are on a work 

platform. The operations and safety manual for the telehandler was available for review for 

all operators and was stored in the telehandler. 

14. Magnum’s Safety and Risk Manager frequently visits worksites to provide safety training, 

distribute safety gear, check equipment and observe workers to ensure they are working 

safely. He had visited the Eagle Ridge site twelve times prior to the accident. The platform 

had been delivered to the site just prior to the accident and was not in use through the Safety 

and Risk Manager’s visits. 

15. During 2016 and 2017 Magnum had disciplined four employees for infractions of safety 

rules, by issuing three written disciplinary actions and one verbal reprimand. Magnum 

issued verbal reprimands to [redacted] and Brown for the actions leading up to the accident.

16. Moving a forklift horizontally while supporting an unattached occupied work platform 

creates a hazard of falling. If an accident occurs, there is a substantial probability that death 

or serious physical harm could result, as happened to [redacted].

17. After receiving notice of the accident, OSHA assigned Mr. Bedingfield to conduct an 

inspection, which he did on January 24, 2018 (Inspection No. 1290271). 

18. On February 8, 2018, OSHA timely issued the citation that is at issue in this case, which 

alleges a violation of 29 C.F.R. § 1926.451(c)(2)(v). On February 23, 2017 [sic] Magnum 

timely contested the citation. 

19. The proposed penalty is gravity-based and assessed properly pursuant to OSHA’s Field 

Operations manual and is appropriate for the violation within the meaning of § 17(j) of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et eq., (the “Act”). The 

gravity-based penalty was originally $12,934.00. The severity was considered high given 

the serious injuries that can occur from falling at heights and the injuries which [redacted]

suffered. The probability was considered greater given the uneven icy terrain, the fact that 

the employees were rushing, and the serious injuries received. Magnum received a 30% 
5

reduction for its size. No good faith reduction was given since Magnum received OSHA 

citations in 2014 and 2016. The proposed penalty is $9,054.00.

IV. Factual Background

Respondent is a steel erection company based out of North Dakota. (Stip. No. 3). For the 

Eagle Ridge Plaza project, Respondent was responsible for erecting the steel frame of an office 

building. (Stip. No. 4). 

Austin Brown is a foreman for Respondent and served as leadman for the Eagle Ridge 

Plaza project from December 10, 2017 through January 6th, 2018. (Austin Brown’s Written 

Statements of Fact ¶ 1-2) [hereinafter Brown Aff.]. [redacted] is also a foreman for Magnum 

Contracting Inc. and was assigned to the Eagle Ridge Plaza project on January 8, 2018. 

([redacted]’s Written Statements of Fact ¶ 1) [hereinafter [redacted] Aff.]. Brown and [redacted]

were both in supervisory roles and oversaw the activities of other employees on the project. (Brown 

Aff. ¶ 2-3); ([redacted] Aff. ¶ 2); (Stip. No. 5). 

On January 17, 2018, [redacted] and Brown decided to use a telehandler and platform to 

perform last-minute welding work before the end of the work day. (Stip. No. 6). [redacted] and 

Brown attached a Haugen work platform to a JLG G9-43A telehandler by sliding the forks into 

the appropriate pieces of channel iron under the platform. (Stip. No. 7 and 8). Respondent provided 

a chain with the work platform to secure the platform to the telehandler. (Stip. No. 8); (Tim 

Warren’s Written Statements of Fact ¶ 2) [hereinafter Warren Aff.]. Brown forgot to apply the 

chain and [redacted] failed to check whether the chain was in place. (Brown Aff. ¶ 6); ([redacted]

Aff. ¶ 5). The platform was not secured in any other manner. (Stip. No. 8). 

While [redacted] was on the platform, Brown raised it to the height of the second floor—

approximately twelve feet—and moved forward toward the building. (Stip. No. 9 and 10). The
6

horizontal movement caused the platform to slide off the forks and fall to the ground along with 

[redacted]. (Stip. No. 10). [redacted] suffered three broken ribs and a partially collapsed lung. Id.

Complainant responded to the injury and conducted an inspection of the Eagle Ridge Plaza 

site. (Stip. No. 17). Complainant alleged a serious violation of 29 C.F.R. § 1926.451(c)(2)(v) for 

using a forklift to support an unsecured platform and moving a forklift horizontally while it was 

occupied. Id.

V. Controlling Case Law

To establish a prima facie violation of Section 5(a)(2) of the Act, Complainant must prove 

that: (1) the standard applies; (2) the terms of the standard were violated; (3) employees were 

exposed to the hazard covered by the standard; and (4) the employer had actual or constructive 

knowledge of the violation (i.e., the employer knew or, with the exercise of reasonable diligence,

could have known of the violative condition). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 

(No. 90-1747, 1994)

Complainant has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance 

of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to 

free the mind wholly from all reasonable doubt, is still sufficient to incline a 

fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) 

VI. Discussion

Following the accident, Complainant inspected the Eagle Ridge Plaza worksite and alleged 

a serious violation of the Act in Citation 1, Item 1 as follows:
7

29 CFR 1926.451(c)(2)(v): Fork-lifts were used to support scaffold platforms 

while the entire platform was not attached to the fork and the fork-lift was 

moved horizontally while the platform was occupied: 

(a) On or about January 17, 2018 an employee suffered a fall of approximately 

twelve feet when the Haugen work platform he was to perform welding 

activities from slid off the forks of a JLG G9-43A telehandler at 3270 

Veterans Boulevard in Fargo, North Dakota. 

The cited standard states “[f]ork-lifts shall not be used to support scaffold platforms unless 

the entire platform is attached to the fork and the fork-lift is not moved horizontally while the 

platform is occupied.” 29 C.F.R. § 1926.451(c)(2)(v) (2018). 

A. The standard applies to the cited condition.

The parties stipulated the JLG G9-43A telehandler is a “rough terrain forklift”. (Stip. No. 

7). The telehandler had a boom with forks attached. Id. Generally, OSHA and the Commission 

consider telehandlers using fork attachments to be forklifts. Salco Construction, Inc., 21 BNA 

OSHC 1662 (No. 05-1145, 2006) (A.L.J.) (classifying a telehandler as a forklift regulated under 

29 C.F.R. § 1926.451 rather than an aerial lift regulated under 29 C.F.R. § 1926.453 when a fork 

attachment was used). Both parties consistently referred to the telehandler as a forklift, and it is 

therefore subject to the requirements of 29 C.F.R. § 1926.451.

To determine whether a surface is a “scaffold platform,” the characteristics of the surface 

must be compared to the regulatory definition of “scaffold” and “platform.” Armstrong Steel 

Erectors, Inc., 17 BNA OSHC 1385 (No. 92-262, 1995). The regulatory definition of scaffold is 

“any temporary elevated platform (supported or suspended) and its supporting structure (including 

points of anchorage), used for supporting employees or materials or both.” 29 C.F.R. § 

1926.450(b). The definition of platform is “a work surface elevated above lower levels. Platforms 

can be constructed using individual wood planks, fabricated planks, fabricated decks, and 

fabricated platforms.” Id. The parties stipulated the Haugen work platform was a “temporary 
8

surface” that was supported by a forklift. (Stip. No. 7). The Haugen work platform was described 

as a “screened floor with removable sides” and was elevated to the second story. (Stip. No. 7 and 

9). The platform was “above lower levels” and is descriptively consistent with a fabricated deck 

or platform. The Haugen work platform meets the plain language definition2of scaffold platform.

The classification of the Haugen work platform as a scaffold platform is supported by 

Commission case law. The court in Salco Construction, Inc. characterized a platform similar to 

the Haugen work platform as a scaffold platform when supported by a telehandler. 21 BNA OSHC

1662. Where the Commission considered whether painters’ picks were a scaffold platform, it 

focused on the “elevated” and “temporary” parts of the regulatory definition. Armstrong Steel 

Erectors, Inc., 17 BNA OSHC 1385. The Commission found that painters’ picks were a scaffold 

platform because they were work surfaces above the ground that were moved around the job site. 

Id. Similarly, the work platform supported by a telehandler in this case is an elevated work surface 

that could be moved around the job site. Applying the Commission’s reasoning in Armstrong Steel 

Erectors, Inc., the Haugen work platform meets the regulatory definition of a scaffold platform.

The JLG G9-43A telehandler is a forklift that lifted a scaffold platform. Accordingly, 29 

C.F.R. § 1926.451(c)(2)(v) applies to the cited condition.

B. The terms of the standard were violated.

A forklift may only be used to support a scaffold platform if it is secured and the forklift is 

not moved horizontally. Here, the platform was not secured properly while employees moved the 

scaffold horizontally. The platform was not secured in any way and was solely supported by the 

 

2 When determining the meaning of a standard, the Commission first looks to its text and structure. Superior Masonry 

Builders, Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003). “If the meaning of the [regulatory] language is 

‘sufficiently clear,’ the inquiry ends there.” Beverly Healthcare-Hillview, 21 BNA OSHC 1684, 1685 (No. 04-1091, 

2006) (consolidated) (citing Unarco Commercial Prods., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993)), aff’d in 

relevant part, 541 F.3d 193 (3d Cir. 2008).
9

fork attachment. (Stip. No. 8). Respondent did not use the provided chain to secure the platform. 

Id. Brown moved the telehandler horizontally when he drove towards the building. (Stip. No. 9). 

The platform slid off the forklift because it was unsecured while the forklift was moved in a 

horizontal direction. As such, the Court finds Respondent violated the terms of 29 C.F.R. § 

1926.451(c)(2)(v).

C. Employees were exposed to the hazard covered by the standard.

“The Secretary may prove employee exposure to a hazard by showing that, during the 

course of their assigned working duties, their personal comfort activities on the job, or their normal 

ingress-egress to and from their assigned workplaces, employees have been in a zone of danger or 

that it is reasonably predictable that they will be in a zone of danger.” RGM Construction, Co., 17 

BNA OSHC 1229 (No. 91-2107, 1995). Actual exposure to a hazard demonstrates that an 

employee was in the zone of danger and proves employee exposure. See Gilles & Cotting, Inc., 3 

BNA OSHC 2002, 2003 (No. 504, 1976). 

In this case, employees were actually exposed to the hazard covered by the standard, which 

addresses fall hazards associated with work performed on scaffolding. The Commission has found 

that when an employee falls and is injured, “actual exposure to the fall hazard...is unquestioned.” 

Phoenix Roofing, Inc., 17 BNA OSHC 1076 (No. 90-2148, 1995). Here, [redacted] fell from a 

scaffold platform and was injured because the platform was moved horizontally and was not 

secured in violation of 29 C.F.R. § 1926.451(c)(2)(v). Because [redacted] was actually exposed to 

the fall hazard covered by the standard, the Court finds Complainant proved this element of its 

prima facie case. 

D. The employer had actual knowledge of the violation
10

To prove knowledge, the Secretary can show a supervisor had either actual or constructive 

knowledge of the violation and such knowledge is generally imputed to the employer. Revoli 

Const. Co., 19 BNA OSHC 1682 (No. 00-0315, 2001). Actual knowledge is established when a 

supervisor directly sees a subordinate’s misconduct. See, e.g., Secretary of Labor v. Kansas Power 

& Light Co., 5 BNA OSHC 1202 (No. 11015, 1977) (holding that because the supervisor directly 

saw the violative conduct without stating any objection, “his knowledge and approval of the work 

methods employed will be imputed to the respondent”). Actual knowledge can also be established 

when a supervisor participates in misconduct themselves. See Dover Elevator Co., 16 BNA OSHC 

1281 (No. 91-862, 1993) (holding that the misconduct of a supervisor was imputed to the 

employer); Dana Container, Inc., 25 BNA OSHC 1776 (No. 09-1184, 2015) (following Dover 

Elevator and imputing employee knowledge of their own misconduct to the employer). Knowledge 

may be imputed to the employer through its supervisory employee. Am. Eng’g & Dev. Corp., 23 

BNA OSHC 2093 (No. 10-0359, 2012) (quoting Access Equip. Sys., 21 BNA OSHC 1400 (No. 

03-1351, 2006)).

It is well-settled an employee who has been delegated authority over other employees, even 

if only temporarily, is a supervisor for the purposes of imputing knowledge to an employer. Access 

Equipment Systems. Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999) (employee who was “in 

charge of” or “the lead person for” one or two employees who erected scaffolds “can be considered 

a supervisor). Both Brown and [redacted] were Foremen with supervisory roles on the Eagle Ridge 

Plaza project. (Stip. No. 5). They were both aware they did not secure the platform to the 

telehandler and Brown knew he was moving the forklift horizontally towards the building. (Stip. 

No. 8-10). When Brown and [redacted] violated 29 C.F.R. § 1926.451(c)(2)(v) they had actual 

knowledge of their own actions and the violation. Under Commission precedent, that knowledge 
11

is imputed to Respondent. Dover Elevator Co., 16 BNA OSHC 1281 (finding that a supervisor 

who connected an extension cord to an operable but unprotected circuit was aware that he violated 

a safety standard and knowledge was imputed to the employer); Dana Container, Inc., 25 BNA 

OSHC 1776 (No. 09-1184, 2015) (finding that a supervisor who entered a trailer tank without 

performing required atmospheric testing had knowledge of his own misconduct which was 

imputed to the employer). 

The Court finds that (1) the standard applies; (2) the terms of the standard were violated; 

(3) employees were exposed to the hazard covered by the standard; and (4) the employer had actual 

knowledge of the violation. Complainant established Respondent’s prima facie violation of 

Section 5(a)(2) of the Act, and the Court AFFIRMS Citation 1, Item 1. 

E. The violation was serious.

A violation is “serious” if there was a substantial probability that death or serious physical 

harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not 

show that there was a substantial probability that an accident would occur; he need only show if

an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 

1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is death or serious 

physical harm, a violation of the regulation is serious. Mosser Construction, 23 BNA OSHC 1044 

(No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 1993). 

The cited standard addresses the hazards associated with falling from a platform that is 

elevated above lower levels. Both parties stipulated that a fall resulting from a violation of the 

cited standard could potentially cause death or serious physical harm. (Stip. No. 16). In this case 

an injury actually occurred, and [redacted] suffered a punctured lung and multiple broken ribs from 

falling. (Stip. No. 10). See e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir.
12

1977) (holding that injuries to employees constitute at least prima facie evidence that the hazard 

was likely to cause death or serious injury). The Citation was properly classified as serious. 

F. The Court rejects the affirmative defense of unpreventable employee 

misconduct.

To establish the affirmative defense of “unpreventable employee misconduct”, Respondent 

must show that: (1) it has established work rules designed to prevent the violation, (2) it has 

adequately communicated those rules to its employees, (3) it has taken steps to discover violations, 

and (4) it has effectively enforced the rules when violations have been discovered. Jensesn 

Construction Co., 7 BNA OSHC 1477 (No. 76-1538, 1979). Respondent bears the burden of proof 

to establish the defense. Id.

When the alleged misconduct is that of a supervisor, the proof of “unpreventable employee 

misconduct” is more rigorous and more difficult to establish since it is the supervisor’s duty to 

protect the safety of employees under his supervision. Archer-Western Contractors Ltd., 15 BNA 

OSHC 1013 (No. 87-1067, 1991). Involvement by a supervisor in a violation is “strong evidence 

that the employer’s safety program was lax.” Daniel Constr. Co., 10 BNA OSHC 1549 (No. 16265,

1982).

An effective work rule must be designed to prevent the violation or “be clear enough to 

eliminate employee exposure to the hazard covered by the standard.” Beta Construction Co., 16 

BNA OSHC 1435 (No. 91-102, 1993). The Commission has specifically defined a work rule as 

“an employer directive that requires or proscribes certain conduct, and that is communicated to 

employees in such a manner that its mandatory nature is made explicit and its scope clearly 

understood.” J. K. Butler Builders, Inc., 5 BNA OSHC 1075 (No. 12354, 1977). Work rules are 

not required to be written; the only requirement is that they are clearly communicated to 
13

employees. Aquatek Systems, Inc., 21 BNA OSHC 1400 (No. 03-1351, 2006). Clear 

communication depends on adequate training and instructions designed to prevent the violation. J. 

K. Butler Builders, Inc., 5 BNA OSHC 1075. 

Respondent stipulated it did not have a work rule that required securing a platform on a 

forklift or prohibited moving a forklift horizontally while supporting a platform with an employee 

on it. (Stip. No. 11). However, Respondent later provided, in its Response opposing the entry of 

summary judgment, written statements by [redacted] and Brown, which state that they were both 

familiar with relevant safety rules in Respondent’s Safety Manual. (Brown Aff. ¶ 4); ([redacted]

Aff. ¶ 3). Brown asserted the Safety Manual was on site and available to employees. (Brown Aff.

¶ 4). The provided Safety Manual states:

The entire platform must be attached to the fork, and the forklift is not to be moved 

horizontally while the platform is occupied. The forks must be placed in the scaffold sleeves 

and the platform secured to the mast. (Ex. 1).

There is also a section of the Safety Manual titled Elevating Personnel, which requires an 

employee to “[s]ecurely attach the platform to the lifting carriage or forks.” (Ex. 1.) Complainant 

points to a requirement in the Safety Manual to “[a]lert elevated personnel before moving the 

platform,” as proof that the safety rules violate the standard and therefore cannot be a work rule. 

(Compl’t Reply to Resp’t Response to Motion for Summary Judgment). However, this requirement

does not specify horizontal or vertical movement, and Complainant’s assumption that it refers to 

horizontal movement is unsupported. Vertical movement is a normal and expected part of 

elevating employees and it stands to reason that safety standards about “movement” would refer 

to vertical movement. Notwithstanding the stipulation that no work rule existed, there is evidence 
14

Respondent had written safety rules designed to prevent the violation of 29 C.F.R. § 

1926.451(c)(2)(v).

3

Although there may be a work rule, it is only considered an effective work rule if it is

clearly communicated to employees. Jensesn Construction Co., 7 BNA OSHC 1477. Respondent 

originally stipulated that there was no work rule. (Stip. No. 11). Respondent later presented a 

“recently discovered” Safety Manual that contained a safety rule prohibiting [redacted] and 

Brown’s actions. (Resp’t Response to Motion for Summary Judgment). The Safety Manual was 

“discovered” almost eight months after the accident and seven months after filing the NOC. Id.

4

The manner and timing in which the safety rules were discussed and produced gives the impression 

the rules were a recently remembered written formality rather than a clearly communicated and 

practiced work rule. Respondent’s seeming unfamiliarity with its own alleged work rule creates a 

reasonable inference that the work rule was not effective or clearly communicated. Ultimate 

Distribution Systems, Inc., 10 BNA OSHC 1568 (No. 79-1269, 1982) (stating that the Court may 

draw reasonable inferences based on circumstantial evidence).

 

3

 The Court gives Respondent the benefit of the doubt the work rule set forth in the Safety Manual was in existence 

at the time of the inspection. Even though the Court has concluded a very late produced and recently discovered work 

rule was in existence at the time of the inspection which contradicts the Joint Stipulation it agreed to on this point, 

Respondent’s affirmative defense fails as it has not carried its burden on the second element of the defense as set forth 

in the narrative of the Decision. 

4 Respondent offered no reason for the late discovery and submission of the work rules. These proceedings were 

conducted under the adopted Rules for Simplified Proceedings. See Subpart M of 29 C.F.R. Part 2200 (29 C.F.R. §§ 

2200.200 - 2200.211). Where Respondent raises an affirmative defense, the Judge, under Commission Rule 206(b) 

shall order the employer to disclose to the Secretary such documents relevant to the affirmative defense. In this case, 

the Judge, pursuant to an Order dated April 25, 2018 directed Respondent to produce to the Secretary all

documentation in its possession and control to support its alleged affirmative defense of employee misconduct within 

twenty (20) days of the Order. Respondent did not comply with this Order since the first time such evidence was 

produced was in Respondent’s Response to the Motion for Summary Judgment dated August 6, 2018. The Secretary 

did not lodge an objection to the late submission of such evidence and has not been prejudiced by such late submission 

and consideration in that it was provided an opportunity to reply to such late submission of documents. See Court’s 

Order dated August 1, 2018. The Secretary did address these documents and Respondent’s arguments as to the 

affirmative defense in a Reply brief dated August 17, 2018. 
15

Furthermore, Respondent bears the burden of proof the work rule was clearly 

communicated. Jensen Construction Co., 7 BNA OSHC 1477 (No. 76-1538, 1979). Where the 

Commission has found that this element is satisfied, the employer provided evidence beyond the 

mere existence of the rules. United Contractors Midwest, Inc., 26 BNA OSHC 1049 (No. 10-2096, 

2016) (finding effective work rule communication based on evidence that a work rule was 

communicated during orientation for all employees, regular trainings, annual supervisory 

trainings, and directly to the offending employee the day before the inspection); Westar Energy, 

20 BNA OSHC 1736 (No. 03-0752, 2004) (finding effective work rule communication based on 

evidence that a Safety Manual was discussed with every employee upon hiring and during other 

trainings). Here, Respondent offers no evidence the rules contained in the Safety Manual were 

communicated to employees. On the contrary, the relevant sections of the Safety Manual seem to 

have been forgotten at the time Respondent stipulated to their non-existence. 

Respondent attempted to provide evidence that training on the subject was provided. Both 

parties stipulated that [redacted] signed into a toolbox talk entitled “Elevating Personnel with 

Forklifts” on February 20, 2015. (Stip. No. 11). The toolbox talk covered requirements to securely 

attach a platform to a fork and to “not travel from point to point with the work platform elevated 

at a height greater than 4 feet while workers are on the platform.” Id. Although both parties 

stipulated Brown had not received a similar training, Respondent provides written statements by 

Brown and Warren that state otherwise. (Brown Aff. ¶ 5); (Warren Aff. ¶ 4). Brown signed into a 

Safety Toolbox Topic discussion on “Personnel Work Platform Safety”, which states a platform 

must be “securely attached to the lifting carriage or forks” and that forklifts “must never be driven 

with occupants elevated in the platform.” (Ex. 3). Brown also asserts he was trained to use the 
16

chain with the Haugen Personnel Platform, but no supporting evidence is provided. (Brown Aff. ¶ 

5).

5

Although there is evidence that suggests Respondent’s employees have been exposed to 

relevant safety topics, the evidence does not demonstrate effective communication of a work rule. 

The training materials are inconsistent with each other and the Safety Manual on whether 

horizontal movement is prohibited when a platform is occupied at all, occupied and elevated, or 

occupied and specifically “elevated at a height greater than 4 feet.” (Stip. No. 11). Effective 

communication of a work rule is undermined by a lack of consensus on what the rule is. PSP 

Monotech Industries, 22 BNA OSHC 1303 (No. 06-1201, 2008) (holding that where a work rule 

was communicated in an inconsistent and confusing manner, the work rule was not adequately 

communicated to employees). Additionally, Brown’s training in the area seems to have been 

forgotten at the time stipulations were made. Although Respondent offered the sign-in sheet as 

evidence of the training, the fact the training was initially overlooked calls into question the 

effectiveness of that training in communicating the rules. 

Although Respondent presents some evidence to support a claim that a work rule existed 

and was communicated, the Court finds Respondent did not communicate that rule effectively. An 

effectively communicated work rule is supposed to be explicit, mandatory, and clear enough that 

it eliminates employee exposure to a hazard. J. K. Butler Builders, Inc., 5 BNA OSHC 1075; Beta 

Construction Co., 16 BNA OSHC 1435. The standard of evidence to demonstrate an effectively 

communicated work rule is higher in cases of supervisor misconduct. Archer-Western Contractors 

Ltd., 15 BNA OSHC 1013. Here, both employees involved in the violation were supervisors. The 

 

5. Additional trainings are discussed in the stipulated facts. Both parties agree that relevant safety standards were not 

covered in the trainings and they are therefore not considered when examining whether a work rule was effectively 

communicated. 
17

Safety Manual and toolbox talks demonstrate inconsistencies in the safety rules and policies. The 

assertion the work rule was adequately communicated was undermined by Respondent’s 

stipulations that no work rule existed and that certain alleged trainings did not occur. The trainings 

offered by Respondent are not as frequent or consistent as trainings seen in United Contractors 

Midwest, Inc. and Westar Energy where the safety rule was covered in orientation, annual 

supervisory trainings, and regularly scheduled trainings for all employees. 26 BNA OSHC 1049; 

20 BNA OSHC 1736. The material presented to the Court does not demonstrate a clear and explicit 

work rule designed to prevent the violation of 29 C.F.R. § 1926.451(c)(2)(v). As such, the Court 

rejects Respondent’s claim of unpreventable employee misconduct.

6

VII. Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires 

the Commission give due consideration to four criteria: (1) the size of the employer’s business, (2) 

the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s prior history 

of violations. Gravity is the primary consideration and is determined by the number of employees 

exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of 

an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well 

established that the Commission and its judges conduct de novo penalty determinations and have 

full discretion to assess penalties based on the facts of each case and the applicable statutory 

criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); Allied Structural Steel, 2 BNA 

OSHC 1457 (No. 1681, 1975).

Complainant determined the gravity of the violation to be high based on the higher severity 

and greater probability of injury. (Stip. No. 19). Injuries resulting from a fall hazard above twelve 

 

6

It is not necessary to analyze the further requirements of the affirmative defense since Respondent has failed to carry 

its burden on this element. 
18

feet are serious which justifies the higher severity determination. Id. The greater probability 

determination is justified because employees were rushing and operating a forklift on uneven and 

icy terrain. Id. Complainant issued an initial penalty determination of $12,934 based on the gravity 

and then reduced the penalty to $9,054 by applying a 30% size reduction in line with OSHA’s 

Field Operation Manual. Respondent received previous OSHA citations in 2014 and 2016. Id. As 

such, reductions for good faith and history were not applied. Id. Respondent stipulated to all factors 

relevant to penalty determination and did not offer any arguments contesting the amount of the 

proposed penalty. (Stip. No. 19); (See Resp’t Response to Motion for Summary Judgment).

Complainant’s determination and justification for each of the penalty factors is appropriate. Based 

on the totality of the circumstances introduced in the record for this violation, the Court adopts the 

proposed penalty of $9,054.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as a SERIOUS citation and a penalty of $9,054 is 

ASSESSED.

Date: November 21, 2018 /s/ Patrick B. Augustine

Denver, CO Patrick B. Augustine

JUDGE - OSHRC