OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 16-1321

LM SANDERSON CONSTRUCTION, INC.,

Respondent.

Appearances: Attorney Molly J. Theobald

U.S. Department of Labor, Office of the Solicitor

New York, New York

For the Complainant

Mr. David Sanderson

Vice-President, LM Sanderson Construction, Inc.

Webster, New York

For the Respondent

Before: William S. Coleman

Administrative Law Judge

DECISION AND ORDER

The Respondent, LM Sanderson Construction, Inc., (LMS) is a construction 

company whose business includes framing buildings and other related activities. (Stip.

No. 2). In the spring of 2016, LMS was working on a residential construction project in 

Rochester, New York, known as Ivy Bridge Townhomes. (Stip. No. 2; T. 129). 

On the morning of April 7, 2016, a Compliance Safety and Health Officer (CO) 

assigned to the Rochester area office of the Occupational Safety and Health 

Administration (OSHA) drove past the Ivy Bridge Townhomes construction site while on 

his way to another worksite, when he observed what he suspected to be a violation of fall 
2

protection standards. The CO stopped his car, took some photographs from the roadside,

and then sought his supervisor’s permission to open an investigation. He received the 

requested permission later that same day and formally commenced an investigation that

afternoon. That investigation resulted in OSHA issuing a two-item serious citation to 

LMS on July 6, 2016, with a proposed penalty of $2,800 for each citation item, for a total 

proposed penalty of $5,600. 

LMS timely contested the citation and proposed penalties, and the Executive 

Secretary of the Occupational Safety and Health Review Commission (Commission) 

docketed the matter on August 17, 2016. The Commission’s Chief Judge thereafter 

designated the matter for disposition under the Commission’s rule for “Simplified 

Proceedings,” 29 C.F.R. pt. 2200, subpt. M, and assigned the matter to the undersigned 

Commission Judge for hearing and decision.

Citation item 1 alleged a violation of the construction industry fall protection 

standard at 29 C.F.R. § 1926.501(b)(1), which requires that “[e]ach employee on a 

walking/working surface ... with an unprotected side or edge which is 6 feet ... or more 

above lower levels shall be protected from falling by guardrail systems, safety net 

systems, or personal fall arrest systems.” Item 1 alleged that LMS had violated this 

standard on April 7, 2016 in that “an employee was unloading roof sheathing from an 

articulating boom of a Caterpillar Telehandler -- 20 feet above ground level; with 

unprotected sides, and were not using fall protection.”

Prior to the hearing, the Secretary filed a written motion to amend item 1. LMS 
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did not object to the motion, and the motion was granted.1 (T. 10-11). 

As amended, item 1 alleged two instances (instances “a” and “b”) of a violation of 

§ 1926.501(b)(1), with instance “a” being the originally described alleged violative 

condition quoted above. As to instance “a,” the Secretary pleaded in the alternative that 

if § 1926.501(b)(1) was not the applicable standard, then either one of two other 

standards was. See Commission Rule 30(e) (allowing for alternative pleading), 29 C.F.R. 

§ 2200.30(e). Those two alternatively cited standards are contained in 29 C.F.R. Part

1926, subpart L, “Scaffolds.” The first alternative cited standard was § 1926.451(g)(1), 

which provides that “[e]ach employee on a scaffold more than 10 feet ... above a lower 

level shall be protected from falling to that lower level” by certain means described 

within that section. The other alternative cited standard was § 1926.453(b)(2)(v), which 

pertains to aerial lifts used to elevate personnel. 

In his post-hearing brief, the Secretary took the position that the standard 

applicable to instance “a” was § 1926.451(g)(1) of the scaffolds standard. (Secretary’s 

Post-Hearing Brief, p. 2). Accordingly, instance “a” will be adjudicated only as an 

alleged violation of § 1926.451(g)(1).

Instance “b” of amended item 1 alleged another violation of the fall protection 

 

1 Because this matter has been designated for disposition under the Commission’s 

procedure for “simplified proceedings,” no complaint or answer has been filed. See 29 

C.F.R. § 2200.205(a) (providing that “the complaint and answer requirements are 

suspended” in simplified proceedings). The original citation thus served as the functional 

equivalent of the Secretary’s complaint, so the motion to amend served to amend the 

original citation items. Pursuant to a scheduling order, LMS filed a statement of 

affirmative defenses dated October 21, 2016. After the Secretary’s amendment to the 

citation was granted, LMS’s affirmative defenses to the amended citation items were 

further described at the outset of the hearing. (T. 16, 31). 
4

standard at § 1926.501(b)(1), in that on April 7, 2016 “an employee was working without 

fall protection on surface below the partially constructed roof that was unprotected and 

20 feet above ground level.”

Citation item 2 alleged a violation of the fall protection standard at

§ 1926.501(b)(11), which requires that “[e]ach employee on a steep roof with unprotected 

sides and edges 6 feet .... or more above lower levels shall be protected from falling by 

guardrail systems with toeboards, safety net systems, or personal fall arrest systems.” 

The Secretary alleged in item 2 that LMS violated this standard at the Ivy Bridge 

Townhomes construction site on April 7, 2016, in that “employees were installing roof 

sheathing on surfaces 20 feet above ground level; with unprotected sides, and were not 

using fall protection.”

The undersigned conducted an evidentiary hearing in Rochester, New York on 

December 15, 2016. The Secretary filed his post-hearing brief, to which LMS thereafter 

filed a brief in response. Post-hearing briefing was completed on May 16, 2017, when 

the Secretary filed a statement that he would not file a brief in reply.

The salient issues for decision are: 

• Did the Secretary prove by a preponderance of the evidence 

that LMS violated the scaffolds standard at § 1926.451(g)(1) 

when employees were atop a stack of roof sheathing material 

that was supported on the elevated fork of a telehandler? (Item 

1, instance “a”).

• Did LMS prove by a preponderance of the evidence that 

compliance with the scaffolds standard at § 1926.451(g)(1) was 

infeasible? (Item 1, instance “a”).
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• Would LMS be prejudiced by the Commission Judge ordering 

sua sponte, after post-hearing briefing was completed, that 

citation item 1, instance “b,” and citation item 2, be amended to 

change the standards that the Secretary alleged were applicable 

[respectively, subparagraphs (1) and (11) of § 1926.501(b)] to 

the fall protection standard for residential construction 

[subparagraph (13) of § 1926.501(b)]?

• Did the Secretary prove by a preponderance of the evidence 

that LMS violated the residential construction fall protection 

standard at § 1926.501(b)(13) when its foreman was working 

without fall protection while standing on the top plate of an 

exterior wall while adjusting roof trusses? (Item 1, instance 

“b”).

• Did LMS prove by a preponderance of the evidence that the 

foreman’s violation of the fall protection standard alleged in 

item 1, instance “b”, constituted unpreventable employee 

misconduct? (Item 1, instance “b”).

• Did the Secretary prove by a preponderance of the evidence 

that LMS violated the residential construction fall protection 

standard at § 1926.501(b)(13) when employees installed roof

sheathing without using any conventional fall protection

system? (Item 2).

• Did LMS demonstrate by a preponderance of the evidence that 

it met the exception contained in § 1926.501(b)(13) for 

utilizing certain conventional fall protection systems in 

residential construction by demonstrating both (1) the use of 

such conventional fall protection systems was infeasible, and 

(2) that it had developed and implemented a fall protection plan 

that complied with the provisions of § 1926.502(k)? (Item 2).

For the reasons described below, the three alleged violations are affirmed, and a 

penalty of $2,800 is assessed for each citation item, for a total penalty of $5,600.
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Findings of Fact

The following facts were proven by at least a preponderance of the evidence:

1. The Respondent, LM Sanderson Construction, Inc. (LMS) is a construction 

company based in Webster, New York, whose business includes framing buildings and 

other related construction activities. (Stip. No. 2). The number of workers that LMS 

employs is variable, but LMS generally employs fewer than ten workers at any given 

time. (T. 65; Stip. Nos. 3 & 4).

2. Beginning in February 2016, LMS began working on a residential 

construction project in Rochester, New York, known as Ivy Bridge Townhomes. (T. 

129). 

3. On April 7, 2016, the LMS personnel at the Ivy Bridge Townhomes 

construction site included the foreman, Timothy Lenz, and three workers who Lenz 

supervised. Lenz’s supervisory responsibilities included oversight of safe work practices. 

(Stip. No. 8; T. 128-30). The vice-president of LMS, David Sanderson, was also present 

at the construction site that day, and he personally participated in some construction 

activities. When Sanderson was present, both he and Lenz were involved in supervising 

the other three LMS employees. (Stip. 8; T. 128). 

4. The building under construction on which LMS employees were working on 

April 7, 2016 was a two-story structure that was intended to be used as a home or 

dwelling. (T. 57-58). The building was being constructed using traditional wood frame 

construction materials and methods. 
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5. On the morning of April 7, 2016, LMS employees were completing the 

installation of roof trusses on the building. By the afternoon, they had begun to sheath 

the roof with 4-ft x 8-ft plywood sheets to create a roof that would have a slope greater 

than 4 in 12 (vertical to horizontal). (Stip. Nos. 7 & 9; T. 53-55, 117). The roof eave was 

not protected by a wall or guardrail system. The eave was about 18 to 20 feet above

ground level and about eight feet above the interior floor of the second story. (Stip. No. 

10; T. 41, 131).

6. The first floor of the building was wider than the second floor—it projected

outward about six to eight feet from the exterior wall of the second story and had a flat 

roof that had been fully sheathed. (T. 76, 90). The edge of this flat roof was not 

protected by a wall or guardrail system, and was at least eight feet below the roof eave

and was at least ten feet above ground level. (Stip. No. 10; T. 131). 

7. The photographs at Exhibits C-13, C-14 and C-18 depict the building’s first 

floor projecting out from the second floor’s exterior wall. The 2x4’s that are depicted 

rising vertically from the first floor flat roof are set flush against the second floor exterior 

wall, and were not set on the outside edge of the first floor roof as the CO had mistakenly 

recalled in his testimony. (T. 79-80, 93).

Citation Item 1, Instance “a”

8. LMS employees placed a stack of 4-ft x 8-ft plywood roof sheathing material 

on the fork of a Caterpillar-brand rough terrain forklift truck known as a “telehandler,” 

and elevated the sheathing materials to the roof by means of the telehandler’s extensible 

boom on which the fork was attached. The fork was elevated about one to two feet above 
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the eave of the roof and was positioned in a manner so that about half the stack of 

plywood was suspended directly over the second floor roof, and the other half was 

suspended directly over the flat roof of the first floor projection. (Ex. C-6). The stack of 

plywood was about four feet high, so the top of the stack was about four feet higher than 

the telehandler’s fork, about 12 feet higher than the flat roof of the first floor projection, 

and about 22 to 24 feet higher than ground level. After the stack of plywood had been 

elevated to that position, at different times two LMS employees stepped from the 

building onto the stack to transfer individual plywood sheets onto the building and to cut 

plywood. Only one worker was atop the stack at any given time—one of those workers 

was the foreman Lenz and the other was a worker who Lenz was responsible for 

supervising. Neither Lenz nor the other worker was protected from falling while atop the 

elevated stack by either a personal fall arrest system or guardrail system. 

9. The elevated stack of plywood on which Lenz and the other employee were 

working as depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C18, and C-19, constituted a work surface that was elevated above lower levels. This work 

surface constituted a “platform” as defined in § 1926.450(b) (defining "platform" as "a 

work surface elevated above lower levels”), so that the makeshift platform and the 

telehandler constituted a “scaffold” as defined in § 1926.450(b) (defining “scaffold” as 

“any temporary elevated platform ... and its supporting structure ... used for supporting 

employees or materials or both”). 

10. The photograph at Exhibit C-6 accurately depicts foreman Lenz kneeling on 

the makeshift elevated platform without any fall protection. (T. 104-105, 116-117).
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11. The photographs at Exhibits C-7, C-8, C-10, C-13, C-14, C-18, and C-19, 

accurately depict the other LMS worker in various postures (crouching, stooping, 

standing) while positioned on the makeshift elevated platform. Those photographs also 

accurately depict vice-president Sanderson standing on or near the top plate of the second 

floor exterior wall, within arm’s reach of the makeshift elevated platform. Sanderson 

was supervising workers and was intending to act as a safety monitor for the worker on 

the stack of plywood as well as for LMS workers on the roof installing sheathing, who 

were also not using any conventional fall protection system. (Stip. No. 11; T. 116-18, 

141-142).

12. If either of the employees who had been atop the makeshift elevated platform 

had fallen, there is a substantial probability that the employee would have sustained 

serious physical harm or even death. (T. 60-64).

13. It was not necessary for Lenz or the other worker to have been atop the stack 

of plywood as depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, 

C-18, and C-19, in order for LMS to transfer the plywood from the telehandler to the 

roof, or to cut the plywood. (T. 104-107).

Citation Item 1, Instance “b”

14. On the morning of April 7, 2016, before the workers had begun to install the 

plywood sheathing material to the roof frame, the foreman Timothy Lenz was moving 

roof trusses while standing on or near the top plate of the exterior wall of the building in 

between two roof trusses. (Stip. No. 7; T. 89-90). His position at that time is accurately 

depicted in the photographs set forth in Exhibits C-2, C-3, C-4 and C-5. The top plate of 
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the exterior wall constituted an unprotected edge and was about (a) twenty feet above 

ground level, (b) eight feet above the flat roof of the first-floor projection, and (c) eight 

feet above the next lower level in the building’s interior. (Stip. No. 10; T. 55, 90, 131). 

Lenz was not protected from falling by the use of guardrail systems, safety net systems, 

or personal fall arrest systems. (T. 42-43, 54, 132).

15. If Lenz had fallen, there is a substantial probability that serious physical 

harm could have resulted. (T. 60-64). 

16. The vice-president of LMS, Dave Sanderson, was at the construction site at 

the time that Lenz was standing on the top plate of the exterior wall without fall 

protection, but Sanderson did not see or know that Lenz was in that position. Sanderson 

did not learn that Lenz had been in that position until later that day, when Lenz told 

Sanderson that he had seen someone (the CO) taking photographs of him while in he had 

been in that position. (T. 100, 132).

17. LMS’s standard procedure for setting roof trusses is for workers to do so 

while standing on a ladder. Lenz was aware of this standard procedure and he 

consciously did not follow it while engaged in the activity depicted in the photographs at 

Exhibits C-2, C-3, C-4 and C-5. (T. 90, 133).

18. LMS disciplined Lenz for standing on the top plate of the wall without using 

any fall protection. The written record of this discipline indicated that the discipline 

imposed was a “verbal warning” and that it was a “First Notice.” (Ex. R-6). At the time 

Lenz received this discipline, he had been employed by LMS for about six years and had 

been a supervisor for about three to four years. (T. 99, 128). LMS had never before 
11

disciplined Lenz for failing to use fall protection. (T. 100, 134). Except for this 

discipline of Lenz, there was no evidence of any other instance of LMS disciplining an 

employee for violating a safety rule.

19. LMS had a written “Company Safety Plan” in place on April 7, 2016, that 

included a section titled “Installing and Spreading Roof Trusses.” (Ex. R-1, p. 4). This 

section provided that “on a site-specific basis,” LMS would “develop a plan for the 

protection of workers from falls in regard to the installation of roof trusses,” and that 

“[a]ll employees involved in this job-specific task will be instructed to utilize 100% fall 

protection CONTROLS utilizing PFAS [personal fall arrest system] to solid anchorage 

point with possibly the exception of receiving and spreading the roof trusses.” (Id.) 

LMS did not follow this section of the Company Safety Plan in that it did not establish a 

site-specific plan for the Ivy Bridge Townhomes construction site for the protection of 

workers installing roof trusses. (T. 143).

20. The “Installing and Spreading Roof Trusses” section of the Company Safety 

Plan further provided that “[a]fter careful consideration [LMS] has assessed that it would 

cause a greater hazard to personnel to utilize conventional fall protection during the 

spreading of the roof trusses,” so that while spreading roof trusses “an employee may be 

exposed to a short duration fall hazard that cannot be addressed through the use of PFAS 

and/or the setting of the scaffold.” (Ex. R-1, p. 4). This section goes on to describe 

measures to be taken to minimize the duration of exposure to a fall hazard during truss 

spreading activities, and includes the provision that “[l]adders will be used to secure and 
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brace trusses when possible.” (Ex. R-1, p. 5). LMS did not raise the affirmative defense 

of “greater hazard” to the violation alleged in instance “b” of item 1. (T. 16, 31).

Citation Item 2

21. The photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C19 accurately depict LMS workers installing the plywood roof sheathing material to the 

roof trusses at the Ivy Bridge Townhomes construction site on April 7, 2016. The LMS 

workers shown in the photographs installing the roof sheathing were not protected by a

conventional fall protection system (i.e., guardrail system, safety net system, or personal 

fall arrest system). Those photographs also accurately depict vice-president Sanderson 

standing on or near the top plate of the second floor exterior wall, also without using any 

conventional fall protection system. Sanderson was supervising workers and was 

intending to serve as a safety monitor for the workers who were sheathing the roof, none 

of whom was using any conventional fall protection system. (Stip. No. 12; T. 116-18, 

141-142). 

22. LMS’s written Company Safety Plan in effect on April 7, 2016, has a section 

titled “Installing Roof Sheathing,” which provides as follows (Ex. R-1, p. 7): 

There are serious fall hazards associated with the 

installation of roof sheathing and [LMS] will eliminate the 

potential hazards associated with this task through the use 

of lines of demarcation, PFAS and solid anchorage points 

as described in the fall protection controls aspect of the 

written plan. Retractable lifeline stands may also be 

utilized by workers installing roof sheathing. All fall 

protection controls will be established under the guidance 

of the competent person, along with safety rails around 

perimeter.
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LMS was not employing any of the fall protection systems described in this section of the 

Company Safety Plan during the roof sheathing activities depicted in the photographs at

Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19. (LMS did intend to install 

roof anchors and to begin to use the personal fall arrest systems that it had onsite, but 

only after having first partially sheathed the roof [T. 138, 150-51].)

23. If any of the employees installing roof sheathing without fall protection had 

fallen, there is a substantial probability that the employee would have sustained serious 

physical harm or even death. (T. 60-64).

24. The evidence is insufficient to establish that it was technologically 

impossible to use a conventional fall protection system (i.e., guardrail system, safety net 

system, or personal fall arrest system) to perform the roof sheathing activities depicted in 

the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19. (T. 135-

140).

25. LMS did not develop or implement a fall protection plan for the roof 

sheathing activities depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C14, C-18, and C-19 that: (a) was developed specifically for the Ivy Bridge Townhomes 

construction site; (b) documented the reasons why the use of conventional fall protection 

systems were infeasible; (c) included a discussion of other measures that would be taken 

to reduce or eliminate the fall hazard for workers who could not be provided with 

protection from the conventional fall protection systems; or (d) identified each location 

where conventional fall protection methods could not be used, classified those locations 
14

as controlled access zones, and identified employees authorized to work in such 

controlled access zones. (T. 142-144; Ex. R-1). 

Discussion

The Commission obtained jurisdiction of this matter under section 10(c) of the 

Occupational Safety and Health Act (Act) upon LMS’s timely contest of the citation and 

proposed penalties. 29 U.S.C. § 659(c). At all relevant times, LMS was an employer 

covered by the Act because it met the Act’s definition of “employer.” 29 U.S.C. 

§ 652(5).

To prove a violation of an OSHA standard, the Secretary must establish that 

(1) the cited standard applies, (2) there was a failure to comply with the cited standard, 

(3) employees had access to the violative condition, and (4) the employer knew or could 

have known of the condition with the exercise of reasonable diligence. Astra Pharma.

Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 

691 (D.C. Cir. 1980).

Citation Item 1, instance “a”—

(workers atop the elevated stack of plywood)

Although the Secretary pleaded three alternative safety standards as applicable to 

instance “a” of item 1, in his post-hearing brief the Secretary settled on § 1926.451(g)(1) 

as being the applicable standard among the three. Section 1926.451(g)(1) requires that 

“[e]ach employee on a scaffold more than 10 feet ... above a lower level shall be 

protected from falling to that lower level” by certain means described within that section. 
15

Applicability of § 1926.451(g)(1)

Section 1926.45l(g)(l) is included in the construction industry standards at subpart 

L, “Scaffolds.” Subpart L applies to "all scaffolds used in workplaces covered by” the 

construction industry standards codified in 29 C.F.R. Part 1926. 29 C.F.R § 1926.450(a). 

The term “scaffold” is defined as "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 preamble to 

subpart L shows that the Secretary intended to allow equipment such as rough terrain 

forklifts (like the telehandler involved here) to be used to support scaffold platforms, and 

that if so used the platforms “must comply with the applicable requirements of 

§ 1926.451 for capacity, construction, access, use, and fall protection.” Safety Standards 

for Scaffolds Used in the Construction Industry, 61 Fed. Reg. 46026, 46044 (August 30, 

1996) (to be codified at 29 C.F.R. pt. 1926) (emphasis supplied). This stated intent is 

manifest in provisions of subpart L that impose specific requirements on the design and 

use of forklifts and “similar pieces of equipment” when used to support scaffold 

platforms. See, e.g., §§ 1926.451(c)(2)(iv) & (v).2 The meaning of subpart L is plain—

some of its provisions unambiguously apply to elevated platforms supported by forklifts 

and other similar equipment, such as telehandlers. See Exelon Generating Corp., 21 

BNA OSHC 1087, 1090 (No. 00-1198, 2005) (upholding unambiguous reading of cited 

standard that was consistent with structure of whole standard and its preamble); accord, 

 

2 There was no evidence that the telehandler here met the requirements of 

§ 1926.451(c)(2)(iv) or (v), but whether LMS complied with those standards was not put 

in issue by the Secretary.
16

OSHA Interpretation letter dated November 27, 2001, “Applicable Standards to Lifting 

Personnel on a Platform Supported by a Rough-Terrain Forklift;” Salco Constr., Inc., No. 

05-1145, 2006 WL 1719697, at * 11-12 (O.S.H.R.C.A.L.J., Apr. 24, 2006) (concluding 

that a personnel platform that had guardrails on three sides and was elevated on the fork 

of a telehandler constituted a “scaffold” as defined in subpart L). 

Because the LMS employees were working from a scaffold platform, the general 

fall protection standard that was originally cited does not apply. See 29 C.F.R. 

§ l926.500(a)(2)(i) (specifying that the general fall protection standards for construction 

workplaces set forth in subpart M of Part 1926 do not apply to scaffolds, but rather that

fall protection requirements for employees working on scaffolds are provided by the 

scaffold standard at subpart L); see also OSHA Directive STD 03-11-002, “Compliance 

Guidance for Residential Construction” published December 16, 2010, at page 2 (noting 

“that fall protection requirements for residential construction work performed on 

scaffolds ... are in Subpart L ... not 29 CFR 1926.501(b)(13)”).

Compliance with § 1926.451(g)(1)

Section 1926.451(g)(1) requires that “[e]ach employee on a scaffold more than 10 

feet ... above a lower level shall be protected from falling to that lower level” by certain 

prescribed means depending on the type of scaffold involved. For the makeshift scaffold 

platform involved here, subparagraph (vii) of § 1926.451(g)(1) specifies the types of fall 

protection that would meet the standard, and requires that each worker on the platform 

“be protected by the use of personal fall arrest systems or guardrail systems meeting the 

requirements of [§ 1926.451(g)(4)].” § 1926.451(g)(1)(vii).
17

The work surface of the makeshift scaffold platform was more than 10 feet higher 

than all three levels to which a worker who was atop the platform could fall—the ground

level, the flat rooftop of the first floor projection, and the interior second floor of the 

building under construction. Neither of the workers on the platform as depicted in the 

photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19 was protected 

by the use of personal fall arrest system or guardrail systems. LMS did not comply with 

the standard.

Employee Exposure, and Employer Knowledge

Foreman Lenz and one other LMS employee were exposed to the violative 

condition as depicted in the photographs at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C18, and C-19, and this evidence establishes the “employee access” element of the 

Secretary’s burden of proof. 

The vice-president of LMS, Dave Sanderson, was standing within arm’s reach of 

the platform when each of the employees was atop the platform. His actual knowledge of 

the violative condition is imputable to LMS, and establishes the “employer knowledge” 

element of the Secretary’s burden of proof. 

The Secretary has met his burden to establish by a preponderance of the evidence 

that LMS violated § 1926.451(g)(1) in the manner alleged in instance “a” of item 1.

Infeasibility Defense to Violation of § 1926.451(g)(1)

LMS interposed the affirmative defense of infeasibility to citation item 1, instance 

“a.” An employer who raises the affirmative defense of infeasibility has the burden to 

prove that “(1) literal compliance with the requirements of the standard was infeasible 
18

under the circumstances and (2) either an alternative method of protection was used or no 

alternative means of protection was feasible.” State Sheet Metal Co., 16 BNA OSHC 

1155, 1160 (No. 90-1620, 1993) (consolidated) (emphasis in original).

LMS’s foreman, who was one of the two LMS employees exposed to the 

hazardous condition, acknowledged in his testimony that it had not been necessary for 

anyone to step onto the makeshift elevated platform on the telehandler. (T. 104-107). 

The foreman’s forthright testimony on this point was reliable and credible, and it vitiates 

the claim that it was impossible to perform required work without violating

§ 1926.451(g)(1). LMS has failed to establish the affirmative defense of infeasibility as 

to instance “a” of item 1.

Classification of Violation of § 1926.451(g)(1)

The Act provides that a violation is “serious” if “there is substantial probability 

that death or serious physical harm could result.” 29 U.S.C. § 666(k). “[Section 666(k)]

does not mean that the occurrence of an accident must be a substantially probable result 

of the violative condition but, rather, that a serious injury is the likely result should an 

accident occur.” Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000). 

If either of the workers had fallen from the makeshift platform onto any of the 

three levels below it (the ground level, the flat rooftop of the first floor projection, or the 

interior floor for the second story) serious injury, and possibly even a fatal injury, could 

result. (T. 61). The violation is correctly classified as “serious.” 
19

Citation Item 1, instance “b” –

Foreman Lenz standing on top plate of wall

Instance “b” of citation item 1 alleges that LMS violated § 1926.501(b)(1) when

“an employee was working without fall protection on surface below the partially 

constructed roof that was unprotected and 20 feet above ground level.” At the outset of 

the hearing, the parties expressed their common understanding that instance “b” pertained 

to the foreman, Lenz, having been standing on the top plate of the wall without fall 

protection while adjusting roof trusses, as is depicted in the photographs at Exhibits C-2, 

C-3, C-4 and C-5. The parties also expressed their common understanding that as to the 

violation alleged in instance “b”, that LMS was interposing the affirmative defense of 

unpreventable employee misconduct. (T. 16-17). 

Applicability of § 1926.501

The cited standard is contained in § 1926.501, which by its terms “sets forth 

requirements for employers to provide fall protection systems.” § 1926.501(a)(1). The 

Secretary cited subparagraph (b)(1) of § 1926.501 to be applicable standard. That 

subparagraph provides: 

(b)(1) Unprotected sides and edges. Each employee on 

a walking/working surface (horizontal and vertical surface) 

with an unprotected side or edge which is 6 feet (1.8 m) or 

more above a lower level shall be protected from falling by 

the use of guardrail systems, safety net systems, or personal 

fall arrest systems. 

While paragraph (b) of § 1926.501 does indeed apply to the alleged violative 

condition, its subparagraph (1) does not. Rather, because the Ivy Bridge Townhomes 

construction site involved residential construction, subparagraph (13) of paragraph (b) 
20

applies. Subparagraph (b)(13) is applicable to “residential construction,” and provides as 

follows:

(13) Residential construction. Each employee engaged 

in residential construction activities 6 feet (1.8 m) or more 

above lower levels shall be protected by guardrail systems, 

safety net system, or personal fall arrest system unless 

another provision in paragraph (b) of this section provides 

for an alternative fall protection measure. Exception: 

When the employer can demonstrate that it is infeasible or

creates a greater hazard to use these systems, the employer 

shall develop and implement a fall protection plan which

meets the requirements of paragraph (k) of § 1926.502.

Note: There is a presumption that it is feasible and will 

not create a greater hazard to implement at least one of the 

above-listed fall protection systems. Accordingly, the

employer has the burden of establishing that it is appropriate 

to implement a fall protection plan which complies with

§ 1926.502(k) for a particular workplace situation, in lieu of 

implementing any of those systems.

Subparagraph (b)(13) was specifically promulgated to address the “unique work 

conditions” involved in residential construction work and to be the standard that applies 

to that unique work environment. Safety Standards for Fall Protection in the 

Construction Industry, 59 Fed. Reg. 40672, 40695 (Aug. 9, 1994); OSHA Directive STD 

03-11-002, “Compliance Guidance for Residential Construction,” published Dec. 16, 

2010, at page 14 (stating that “a citation for violating 1926.501(b)(13) should be issued” 

for an employer that is engaged in residential construction and that “does not provide 

guardrail systems, safety net systems, personal fall arrest systems, or other fall protection 

allowed under 1926.501(b)”).

The purpose of the conditional clause in subparagraph (13) (“unless another 
21

provision in paragraph (b) of this section provides for an alternative fall protection 

measure”) is not for any such alternative measure to supplant subparagraph (13) as the 

applicable standard for the residential construction environment. Rather, the 

implementation of any such alternative measure in a residential construction worksite 

would establish compliance with subparagraph (13). See Safety Standards for Fall 

Protection in the Construction Industry, supra, 59 Fed. Reg. at 40693 (noting that as to 

compliance with subparagraph (b)(13), “if another provision in paragraph (b) allows an 

alternative fall protection measure, such as covers over holes, those alternatives measures 

are also acceptable and do not need to be documented in a fall protection plan in order to 

be used”); see also OSHA Instruction STD 3.1, “Interim Fall Protection Compliance 

Guidelines for Residential Construction,” issued December 8, 1995 (providing that 

“[f]ailure to provide fall protection in accordance with any part of this directive shall be 

cited as a violation of 1926.501(b)(13)”), superseded by OSHA Instruction STD 03-00-

001, “Plain Language Revision of OSHA Instruction STD 3.1,” dated June 18, 1999, 

which in turn was cancelled by OSHA Directive STD 03-11-002, supra. 

For purposes of determining the applicability of subparagraph (13) of 

§ 1926.501(b), the Secretary interprets the term “residential construction” “as covering 

construction work that satisfies the following two elements: (1) the end-use of the 

structure being built must be as a home, i.e., a dwelling; and (2) the structure being built 

must be constructed using traditional wood frame construction materials and methods.” 

OSHA Directive STD 03-11-002, supra, at page 11. The Ivy Bridge Townhomes

construction site plainly meets this definition of the term “residential construction,” and 
22

thus the applicable standard is subparagraph (13) of § 1926.501(b), and not subparagraph 

(1) as originally alleged in the citation.

Because the Secretary did not cite § 1926.501(b)(13) as the applicable standard, 

either the violation as alleged must be vacated because the standard that was cited is not 

applicable to the alleged violative condition, or the alleged violation must be amended 

sua sponte by the Commission to allege the standard that is applicable. 

“The Commission has recognized that amendments, including those made sua 

sponte, are routinely permissible where they merely add an alternative legal theory, but 

do not alter the essential factual allegations contained in the citation.” Avcon, Inc., 23 

BNA OSHC 1440, 1451 (No. 98-0755, 2011) (consolidated), quoting N.Y. State Elec. & 

Gas Corp., 17 BNA OSHC 1129, 1132 (No. 91-2897, 1995) (internal quotes omitted). 

Such a sua sponte amendment is not appropriate if the respondent would be prejudiced 

thereby. “In determining whether a party has been prejudiced, the Commission looks ‘at 

whether the party had a fair opportunity to defend and whether it could have offered any 

additional evidence if the case was retried.’” Id. at 1451-52 quoting Nuprecon LP, 22 

BNA OSHC 1937, 1939 (No. 08-1037, 2009).

Amending the alleged violation described in instance “b” of item 1 to allege a 

violation of subparagraph (13) of § 1926.501(b) rather than subparagraph (1) would not 

prejudice LMS. Id. (reflecting the Commission’s sua sponte amendment of a citation to 

allege the applicable standard to be subparagraph (2)(i) of § 1926.501(b), rather than the 

originally cited subparagraph (1) of 1926.501(b)). LMS had a fair opportunity to defend 

the allegation that it lacked fall protection required by § 1926.501(b). LMS does not 
23

dispute that Lenz was not utilizing any fall protection system, and it seeks to avoid 

responsibility for the violation by establishing the affirmative defense of unpreventable 

employee misconduct. Instance “b” of item 1 is therefore ordered amended sua sponte to 

allege a violation of § 1926.501(b)(13).

Violation of § 1926.501(b)(13)

The Findings of Fact at ¶¶ 4–6 & 14 supra establish that while foreman Lenz was 

positioned on the top plate of the wall to adjust roof trusses (as depicted in the 

photographs at Exhibits C-2, C-3, C-4 and C-5), he was engaged in residential 

construction and was exposed to a fall of more than six feet above lower levels without 

utilizing any fall protection system prescribed by § 1926.502(b)(13). Lenz was a 

supervisor and his awareness of his own violative conduct is sufficient for the Secretary 

to meet his burden to prove that LMS had knowledge of the violative condition, without 

having to demonstrate any inadequacy or defect in LMS’s safety program.3 Dover 

 

3

Imputing Lenz’s knowledge of his own misconduct to LMS is consistent with 

Commission precedent and the precedent of the two circuit courts of appeal to which 

judicial review may be sought here pursuant to 29 U.S.C. § 660(a) (i.e., either the D.C. 

Circuit or the Second Circuit). See N. Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 

F.3d 98, 107 (2d Cir. 1996) (discussing the analytic framework that some circuit courts of 

appeal apply on the “employer knowledge” element of the Secretary’s burden of proof 

where the alleged violative conduct is that of a supervisor). Imputation of Lenz’s 

knowledge of his own misconduct to LMS would be appropriate even if the analytic 

framework adopted by some other circuit courts of appeal were operative here. See, e.g.,

W.G. Yates & Sons Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n, 

459 F.3d 604, 609 n. 8 (5th Cir. 2006) (holding that where a supervisor has failed to 

comply with a safety standard, “employer knowledge must be established, not vicariously 

through the violator’s knowledge, but by either the employer’s actual knowledge, or by 

its constructive knowledge based on the fact that the employer could, under the 

circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with 
24

Elevator, 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). 

Affirmative Defense of Unpreventable Employee Misconduct 

to Citation Item 1, instance “b”

To establish the affirmative defense of unpreventable employee misconduct, LMS 

must show that it “(1) established work rules designed to prevent the violative conditions 

from occurring; (2) adequately communicated those rules to its employees; (3) took steps 

to discover violations of those rules; and (4) effectively enforced the rules when 

violations were discovered.” Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No.

94-0588, 2007). An employer’s burden to establish this defense is “more rigorous”

where, as here, a violation involves the misconduct of a supervisor, since a supervisor’s 

duties include “protect[ing] the safety of employees under his supervision” and the 

supervisor’s misconduct is “strong evidence that the employer’s safety program is lax.” 

Stark Excavating, Inc., 24 BNA OSHC 2218, 2220 (No. 09-0004, 2014) (consolidated)

aff’d, 811 F.3d 922 (7th Cir. 2016), quoting CBI Servs., Inc., 19 BNA OSHC 1591, 1603 

(No. 95-0489, 2001), aff’d per curiam, 53 F. App’x 122 (D.C. Cir. 2002) (unpublished). 

Here, LMS had an established work rule designed to prevent the violative 

condition—the Company Safety Plan required “100% fall protection CONTROLS 

 

evidence of lax safety standards]”); accord Comtran Grp., Inc. v. Department of Labor,

722 F.3d 1304 (11th Cir. 2013). Here, as discussed infra in connection with the defense 

of unpreventable employee misconduct, on the record as a whole, the Secretary would 

have met his burden to establish employer knowledge of the supervisory misconduct by 

virtue of LMS having maintained an inadequate safety program. Cf. Spirit Aerosystems, 

Inc., 25 BNA OSHC 1093, 1095 (No. 10-1697, 2014) (deciding that “[u]nless ...

evidence clearly preponderates against complainant, the Judge must either deny [a FRCP 

Rule 52] motion or defer disposition until the conclusion of respondent’s case”) (citing 

Morgan & Culpepper, Inc., 5 BNA OSHC 1123, 1124-25 (No. 9850, 1977), aff’d in 

relevant part, 676 F.2d 1065 (5th Cir. 1982)).
25

utilizing” personal fall arrest systems (PFAS) during installation of roof trusses, subject 

to exception.4 LMS adequately communicated this rule to its employees, as demonstrated 

by Lenz’s knowledge of that rule. LMS also took steps to discover violations of that rule 

by having a supervisor on construction sites whose responsibilities included assuring 

employee compliance with company safety rules. 

The evidence is insufficient to establish the fourth enumerated element of the 

defense, however—that LMS effectively enforced the rule when a violation was 

discovered. The photographs that show Lenz in violation of § 1926.501(b)(13) at 

Exhibits C-1 and C-3 also depict another LMS employee standing on the center chord of 

one of the roof trusses about 10 to 15 feet away from Lenz. Lenz and the other employee 

were plainly visible to each other, and the other employee was violating the same work 

rule that Lenz was violating in his plain view. (T. 96-98). Unlike Lenz, however, that 

employee was not disciplined for violating the work rule. (T. 100). 

 

4 The Company Safety Plan established a blanket exception to the use of PFAS 

during the spreading of roof trusses based upon a predetermination that use of PFAS 

during that operation would create a greater hazard under all circumstances. (See

Findings of Fact ¶¶ 19–20). The standard at § 1926.501(b)(13) allows an employer to 

make a site-specific determination that a certain activity would create a greater hazard, 

but it does not allow an employer to predetermine that the use of conventional fall 

protection would create a greater hazard for a certain activity in all residential 

construction environments. See § 1926.502(k) (providing that where use of conventional 

fall protection systems in residential construction is infeasible or would create a greater 

hazard, the employer must create a fall protection plan “developed specifically for the site 

where the ... residential construction work is being performed and the plan must be

maintained up to date”). Nevertheless, since LMS is not claiming the benefit of this 

exception to providing conventional fall protection that is otherwise required by 

§ 1926.501(b)(13), this deficiency in the Company Safety Plan does not bear directly on 

the adequacy of LMS’s general work rule calling for 100% use of PFAS during 

installation of roof trusses. 
26

The only evidence presented describing LMS’s disciplinary policy is the 

following broad policy statement contained in the Company Safety Plan: “Management 

will take disciplinary action against an employee who willfully and repeatedly violates 

workplace safety rules.” (Ex. R-1, p. 1). There was no evidence that LMS had 

developed or had implemented any formal disciplinary program or procedure. Cf.

Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012)

(noting instances of employee discipline that were meted out prior to OSHA inspection 

pursuant to a disciplinary program). The only evidence of any LMS employee having 

ever been disciplined for failure to comply with any safety rule was the reprimand that 

Lenz received for the conduct described in instance “b”—and this was the only time over 

Lenz’s six years’ employment that LMS had disciplined him for not utilizing required fall 

protection. This evidence of a single instance of either pre- or post-inspection discipline 

does not suffice to establish that LMS had been effectively enforcing its work rules prior 

to the inspection. See Jersey Steel Erectors, 16 BNA OSHC 1162, 1165 n.3 (No. 90-

1307, 1993) (finding the employer’s discipline of a foreman after the foreman’s violative 

conduct was identified during an OSHA inspection did not reflect the existence of a 

“coherent and integrated policy designed to increase employee compliance with” 

company work rules), aff’d 19 F.3d 643 (3d Cir. 1994) (unpublished).

LMS has failed to carry its burden to establish the defense of unpreventable 

employee misconduct.
27

Classification of Violation of Citation Item 1, Instance “b”

Lenz was exposed to a fall of about eight feet to the interior of the building, eight 

feet to the flat roof of the first floor projection, and potentially about 18 to 20 feet to the 

ground level. Lenz’s testimony that he was “very comfortable” working without fall 

protection and that he did not consider working without fall protection to have been a 

“serious” or “deadly” infraction was seemingly based on his confidence in his skills and 

his belief that he was not at serious risk of actually falling. (T. 93-94). As noted 

previously, it is not the probability of an accident occurring that renders a violation 

“serious” or not, but rather whether “a serious injury is the likely result should an 

accident occur.” Pete Miller, Inc., supra. The violation described in instance “b” of 

citation item 1 is correctly classified as “serious.” See Finding of Fact ¶ 15, supra.

Citation Item 2 –

Workers Installing Roof Sheathing

Citation item 2 alleged that LMS violated § 1926.501(b)(11) when LMS

employees were installing roof sheathing without using fall protection on surfaces with 

unprotected sides, 20 feet above ground level. Section 1926.501(b)(11) is captioned 

“Steep roofs” and requires that “[e]ach employee on a steep roof with unprotected sides 

and edges 6 feet .... or more above lower levels shall be protected from falling by 

guardrail systems with toeboards, safety net systems, or personal fall arrest systems.” At 

the outset of the hearing, the parties expressed their common understanding that LMS 

was asserting the affirmative defense of infeasibility to this alleged violation. (T. 31).

For the same reasons that were described supra in connection with instance “b” of 

item 1, the applicable standard is subparagraph (13) of § 1926.501(b), and not the 
28

originally cited subparagraph (11).5 And also for the same reasons described supra in 

connection with instance “b” of item 1, citation item 2 is amended sua sponte to allege 

that subparagraph (13) of § 1926.501(b) is the standard that is applicable to the alleged 

violative condition. Similarly, LMS will not be prejudiced by the amendment because it

had a fair opportunity to defend and could not have offered any additional evidence 

pertinent to the alleged violation if the case were retried.

The Findings of Fact at ¶¶ 4–5 & 21 supra establish the elements of the 

Secretary’s burden of proof that LMS violated § 1926.501(b)(13) in the manner alleged 

in item 2. LMS seeks to avoid responsibility for the violation by establishing the 

affirmative defense of infeasibility.

The infeasibility defense is expressly integrated into subparagraph (b)(13). 

Subpart M defines the term “infeasible” as follows: “Infeasible means that it is 

impossible to perform the construction work using a conventional fall protection system

(i.e., guardrail system, safety net system, or personal fall arrest system) or that it is 

technologically impossible to use any one of these systems to provide fall protection.”6

 

5 The parties stipulated that the roof in question was a “steep roof” as defined in 

subpart M at §1926.500(b). (Stip. No. 9). If LMS had been utilizing a fall protection 

system that had been compliant with subparagraph (11) of § 1926.501(b), LMS would 

have been deemed to have been compliant with § 1926.501(b)(13). See Safety Standards 

for Fall Protection in the Construction Industry, supra, 59 Fed. Reg. at 40693 (noting that

as to compliance with subparagraph (b)(13), “if another provision in paragraph (b) allows 

an alternative fall protection measure, such as covers over holes, those alternatives 

measures are also acceptable and do not need to be documented in a fall protection plan 

in order to be used”).

6Absent from this definition of “infeasible” is the concept of “economic 

infeasibility.” Cf. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1986-87 (No. 
29

§ 1926.500(b). The preamble to subpart M indicates that this definition was informed by 

case law involving the infeasibility defense. “Safety Standards for Fall Protection in the 

Construction Industry,” 59 Fed. Reg. 40672, 40678 (August 9, 1994) (stating that the 

definition of the term “infeasible” “has evolved from litigation involving contested 

citations where employers have asserted that compliance with an OSHA requirement was 

‘infeasible’ or ‘impossible’”). 

As set forth in Finding of Fact ¶ 24, supra, LMS did not carry its burden to 

demonstrate that use of conventional fall protection systems was technologically 

impossible for the workers who were installing sheathing as depicted in the photographs 

at Exhibits C-6, C-7, C-8, C-10, C-13, C-14, C-18, and C-19. Nevertheless, even if the 

scant and conclusory testimony that the use of conventional fall protection systems was 

 

82-928, 1986) (recognizing economic factors in rejecting infeasibility defense because 

employer had not shown that the costs were unreasonable in light of the protection 

afforded and had not shown what effect the added costs would have on its contract or on 

its business as a whole). The preamble to subpart M expressly states that “infeasibility” 

of compliance within subpart M does not encompass claims of “economic infeasibility.” 

Safety Standards for Fall Protection in the Construction Industry, supra, 59 Fed. Reg. at 

40685 (stating that OSHA “does not consider ‘economic infeasibility’ to be a basis for 

failing to provide conventional fall protection for employees ... performing residential 

construction work,” and that OSHA “has consistently maintained, and the record for this 

rulemaking shows, that the industry can either absorb the costs of compliance with 

revised subpart M or pass those costs along to its customers”). 

In any event, LMS’s position here appears to be that providing fall protection was 

technologically impossible, not that compliance may have been technologically possible, 

but nonetheless economically infeasible. But even if LMS had intended to assert 

“economic infeasibility” of compliance, and assuming that such a defense is cognizable 

against a violation of § 1926.501(b)(13), LMS failed to present sufficient evidence to 

prove that defense under Dun-Par.
30

not technologically possible was accepted at face value (T. 135-140), the infeasibility 

defense fails. 

Under § 1926.501(b)(13), once an employer establishes that utilizing 

conventional fall protection systems is infeasible for any aspect of residential 

construction, the standard allows an employer to perform the construction work without 

using a conventional fall protection system, but only if the employer has “develop[ed]

and implement[ed] a fall protection plan which meets the requirements of paragraph (k) 

of § 1926.502.” Paragraph (k) of § 1926.502 provides as follows:

(k) Fall protection plan. This option is available only to employees 

engaged in leading edge work, precast concrete erection work, or 

residential construction work (See § 1926.501(b)(2), (b)(12), and (b)(13)) 

who can demonstrate that it is infeasible or it creates a greater hazard to 

use conventional fall protection equipment. The fall protection plan must 

conform to the following provisions.

(1) The fall protection plan shall be prepared by a qualified person and 

developed specifically for the site where the leading edge work, precast 

concrete work, or residential construction work is being performed and 

the plan must be maintained up to date.

(2) Any changes to the fall protection plan shall be approved by a 

qualified person.

(3) A copy of the fall protection plan with all approved changes shall 

be maintained at the job site.

(4) The implementation of the fall protection plan shall be under the 

supervision of a competent person;

(5) The fall protection plan shall document the reasons why the use of 

conventional fall protection systems (guardrail systems, personal fall 

arrest systems, or safety nets systems) are infeasible or why their use 

would create a greater hazard.

(6) The fall protection plan shall include a written discussion of other 

measures that will be taken to reduce or eliminate the fall hazard for 

workers who cannot be provided with protection from the conventional 

fall protection systems. For example, the employer shall discuss the 
31

extent to which scaffolds, ladders, or vehicle mounted work platforms 

can be used to provide a safer working surface and thereby reduce the 

hazard of falling.

(7) The fall protection plan shall identify each location where 

conventional fall protection methods cannot be used. These locations 

shall then be classified as controlled access zones and the employer must 

comply with the criteria in paragraph (g) of this section.

(8) Where no other alternative measure has been implemented, the

employer shall implement a safety monitoring system in conformance 

with § 1926.502(h).

(9) The fall protection plan must include a statement which provides 

the name or other method of identification for each employee who is 

designated to work in controlled access zones. No other employees may 

enter controlled access zones.

(10) In the event an employee falls, or some other related, serious 

incident occurs, (e.g., a near miss) the employer shall investigate the 

circumstances of the fall or other incident to determine if the fall 

protection plan needs to be changed (e.g. new practices, procedures, or 

training) and shall implement those changes to prevent similar types of 

falls or incidents.

As described in Finding of Fact ¶ 25, supra, LMS did not have a fall protection 

plan in place that met the requirements of subparagraphs (1), (3), (5), (6), (7) or (9) of 

§ 1926.502(k). LMS thus failed to meet the second prong of the exception set forth in 

§ 1926.501(b)(13) to the general mandate that conventional fall protection systems must 

be used in residential construction. Because LMS failed to take the measures required by 

§ 1926.501(b)(13) to mitigate the fall hazard to which employees were exposed while not 

using conventional fall protection systems, LMS’s defense of infeasibility as to citation 

item 2 fails.

The violation described in citation item 2 is appropriately classified as a serious 

violation for the same reasons that the other two violations constitute serious violations.
32

Penalty Assessment

The permissible range of penalties for a serious violation that was in effect when 

the proposed penalty was assessed was from no penalty to $7,000. (29 U.S.C. § 666(b); 

T 62). The Commission and its judges conduct de novo penalty determinations and have 

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

criteria. Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) aff’d, 73 F.3d 

1466 (8th Cir. 1996); Allied Structural Steel, 2 BNA OSHC 1457, 1458 (No. 1681, 

1975). 

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, 

the Commission give “due consideration” to four criteria: the size of the employer’s 

business, the gravity of the violation, the employer’s good faith, and its prior history of 

violations. Specialists of the S., Inc., 14 BNA OSHC 1910, 1910 (No. 89-2241, 1990). 

“Gravity” is the primary consideration among these four statutory criteria, and is 

determined by “such matters as the number of employees exposed, the duration of the 

exposure, the precautions taken against injury, and the likelihood that any injury would 

result.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). 

The Secretary seeks a penalty of $2,800.00 for each citation item, for a total 

proposed penalty of $5,600.00. The Secretary determined that a resulting injury from 

each of the violative conditions would have been of “higher” severity, and that the 

probability of an injury resulting from each of the violations was “greater” (as opposed to 

“lesser”). The Secretary accorded a 60% reduction in penalty for LMS’s small size, and 

accorded no reductions for good faith or prior history. (T. 63-68).
33

LMS asserts that the violations should not be regarded as having been “high 

gravity” on the argument that none of the employees were exposed to a fall to ground 

level. Rather, LMS argues that no employee could have fallen further than the floor of 

the second story on the inside of the building, or the flat roof of the first floor projection. 

LMS believes that any fall towards the exterior of the building would have been arrested 

by the flat roof of the first floor projection. 

This argument is rejected. First, a landing after an unintended fall is likely to be 

an awkward landing, and an awkward landing from an eight-foot fall is likely to result in 

serious injury and possibly even a fatal injury. Second, the edge of the first floor’s flat 

roof was unprotected, and nothing would have prevented an employee who had fallen and 

landed on that flat roof from falling further from that level to the ground level and 

sustaining a second impact in the fall. For these reasons, all three violations were 

reasonably classified to have been high gravity violations.

The record supports the substantial reduction of the penalty to account for LMS’s

relatively small size, and such a substantial reduction was provided in the penalties 

originally proposed. (T. 65-66).

While there was no evidence that LMS had been previously cited for violations of 

safety or health standards, considering that the Company Safety Plan allowed for 

exceptions to the use of fall protection that would have resulted in violations of 

applicable fall protection standards, no penalty reduction is in order on account of LMS’s 

compliance history. 
34

As for adjusting the penalty for “good faith,” this entails assessing an employer’s 

health and safety program, its commitment to job safety and health, its cooperation with 

OSHA, and its efforts to minimize any harm from the violation. Monroe Drywall 

Constr., Inc., 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013); Nacirema Operating Co., 

1 BNA OSHC 1001, 1002 (No. 4, 1972). The inadequacies in LMS’s safety program that 

existed at the time of the violations weigh heavily against any reduction for good faith.

While LMS’s post-inspection expenditures and measures taken to improve its safety 

program are appropriate and commendable (Exs. R-3, R-4, R-5, R-7, R-8, R-9 and R-10; 

T. 119–127), they do not bear on whether LMS had made good faith efforts to comply 

with applicable standards and minimize harm from the violations at the time they 

occurred. 

Considering these factors, a penalty of $2,800.00 for each violation for a total 

penalty of $5,600.00 is appropriate 

ORDER

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Federal Rule of Civil Procedure 52(a). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be 

deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings 

of fact and conclusions of law, it is ORDERED that:

1. Citation 1, item 1, instance “a” for a serious violation of 29 C.F.R. 

§ 1926.451(g)(1) is AFFIRMED.
35

2. Citation 1, item 1, instance “b”, is amended to allege a violation of 29 C.F.R. 

§ 1926.501(b)(13), and as amended the violation § 1926.501(b)(13) is AFFIRMED.

3. Citation 1, item 2, is amended to allege a violation of 29 C.F.R. 

§ 1926.501(b)(13), and as amended the violation of § 1926.501(b)(13) is AFFIRMED.

4. A penalty of $2,800.00 is ASSESSED for citation 1, item 1, instances “a” and 

“b”.

5. A penalty of $2,800.00 is ASSESSED for citation 1, item 2.

SO ORDERED.

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: September 11, 2017