UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 17-0196

 

Appearances:

Sean J. Allen, Esq. & Timothy S. Williams, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, 

Colorado

 For Complainant

Stephen B. Shapiro, Esq. & Alexis A. Reller, Esq., Shapiro Bieging Barger Otteson LLP, Denver, Colorado 

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

Compliance Safety and Health Officer Fred Peterson conducted an inspection of the 

Elevate Wolff-Havana worksite in Englewood, Colorado on October 20, 2016. (Stip. No. 6). 

During the course of his inspection, CSHO Peterson observed two of Respondent’s employees 

cross through a set of guardrails onto an unprotected balcony. (Tr. 94; Ex. C-2). After observing 

the site of the violation and conducting interviews, CSHO Peterson determined Respondent 

violated 29 C.F.R. § 1926.501(b)(1). 

CSHO Peterson recommended, and Complainant issued, a Citation and Notification of 

Penalty (“Citation”) to Respondent, which alleges a single serious violation of 29 C.F.R. § 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

OVATION PLUMBING, INC., 

 

 Respondent.
2

1926.501(b)(1). Complainant proposed a total penalty of $4,811.00. Respondent timely contested 

the Citation, claiming the exception found in the scope and application paragraph of 29 C.F.R. § 

1926.500(a)(1). This brought the matter before the United States Occupational Safety and Health 

Review Commission (“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 Chief Judge designated this matter for Simplified Proceedings. A trial was conducted 

in Denver, Colorado on September 25, 2017. Four witnesses testified at trial: (1) CSHO Fred 

Peterson; (2) Clyde George, Superintendent for Martines Palmeiro Construction (MPC); (3) Paul 

Wilson, Respondent’s site foreman; and (4) Edward McMillan, Respondent’s owner. Both parties 

timely submitted post-trial briefs for the Court’s consideration. 

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act. (Tr. 38–39). The parties also stipulated that, at all times relevant to this 

proceeding, Respondent was an employer engaged in a business and industry affecting interstate 

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 39).

See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). The parties also stipulated to other factual 

matters, which were read into the record.1(Tr. 38–40).

Factual Background

The Inspection 

CSHO Fred Peterson conducted an inspection of the Elevate Wolff-Havana project

pursuant to Complainant’s construction inspection program. The construction program uses a 

randomly generated list of construction sites, which are assigned to individual area offices to be 

 

1. References to the parties’ stipulations shall be as follows: “(Stip. No. ___)”. 
3

inspected within a one-month time frame. (Tr. 53). Elevate Wolff-Havana is a multi-unit 

residential construction project with eleven to twelve multi-story buildings. (Tr. 63–64). At the 

time of the inspection, the individual buildings were in various stages of completion, ranging from 

10 to 85 percent complete. (Tr. 63). After he arrived, CSHO Peterson met with the superintendent, 

Clyde George, and the project manager, Lisa Marini, both of whom worked for the general 

contractor, MPC. (Tr. 65). George, Marini, and Chris Feagle, a representative from Safety First,2

accompanied CSHO Peterson during his inspection. 

During the walkaround, CSHO Peterson saw two workers cross through a guardrail onto a 

second-floor balcony of Building 5. George and Feagle confirmed to CSHO Peterson they saw 

the employees cross through the guardrail. (Tr. 72). At that time, the guardrail was located at the 

entrance onto the balcony, which was accessed through an opening designed for a sliding glass 

door. Wilson testified he asked MPC multiple times to move the guardrails to the perimeter of the 

balcony but received no response. (Tr. 244). Thus, once on the balcony and beyond the guardrail, 

the two workers were not protected from the fall hazard posed by the open balcony, which was 

more than 10 feet above the ground below. (Tr. 72, 122; Ex. C-2, C-8). CSHO Peterson was only 

able to observe the two workers enter onto the balcony, after which they remained out of sight 

until he met with them inside of the building.3

As he went upstairs to meet with the workers, CSHO Peterson came across a different, 

unrelated violation, which he stopped to address. (Tr. 75–76). According to CSHO Peterson, work 

activities were occurring throughout all of Building 5, including the second floor. By the time he 

 

2. Safety First is a private safety consulting firm hired by MPC specifically for the Elevate Wolff-Havana project. 

(Tr. 143–44). 

3. CSHO Peterson testified he had George call the individuals on the balcony so he could identify and speak to them. 

Wilson does not recall receiving a telephone call during his time on the balcony. (Tr. 73, 249). 
4

reached the second floor and actually encountered the two workers, approximately twenty minutes 

had passed, at which point they had already returned to the safe side of the guardrail. (Tr. 77).

Once he arrived upstairs, CSHO Peterson met with Paul Wilson and Brad Pezick, who 

work for Ovation Plumbing. Paul Wilson, Ovation’s foreman, told CSHO Peterson he went onto 

the balcony in order to access the utility closet, which was designed to eventually hold a hot water 

heater. At that point in the construction process, Ovation’s crew had installed the hot and cold 

water taps in the closets on all floors of Building 5, but the hot water heaters had not yet been 

installed. (Tr. 192–93). Wilson told CHSO Peterson he went onto the unguarded balcony and into

the closet solely to take measurements for the placement of a regulator vent. (Tr. 83). A regulator 

vent is designed to remove minute amounts of excess gas produced by the water heaters. (Tr. 194). 

Building code dictates the regulator must be placed three feet away from an open window, so 

Wilson wanted to ensure proper placement. (Tr. 201).

Wilson testified he told Pezick, a non-supervisory employee, to stay behind the guardrail 

and he would demonstrate where to install the vent while Pezick observed though the spaces 

between the studs separating the utility closet from the main living area. (Tr. 201). Instead, Pezick 

followed Wilson through the guardrail, onto the balcony, and into the closet. (Tr. 72–73, 78). It is 

unclear whether Pezick disregarded Wilson’s instructions or did not hear him. (Tr. 209). 

Regardless, Wilson said he was unaware Pezick was behind him until he was doing his 

measurements, after which they returned to the protected side of the balcony guardrail. (Tr. 197–

98). At trial, Wilson estimated they were on the balcony/closet area for no more than 45 seconds; 

however, CSHO Peterson testified Wilson told him they had been on the balcony for 

approximately five minutes. (Tr. 82–85; 248). 
5

CSHO Peterson determined Respondent violated 29 C.F.R. § 1926.500(b)(1) when Wilson 

and Pezick went beyond the guardrail to the balcony and were exposed to a ten-foot drop without 

proper fall protection. According to CSHO Peterson, the balcony was roughly six feet wide 

between the guardrail and the edge. (Tr. 74; Ex. C-8A). The entrance to the closet was closer, 

roughly two feet away from the edge. (Tr. 110). Due to the height of the balcony, the lack of fall 

protection, and Wilson’s and Pezick’s proximity to the edge, CSHO Peterson determined the 

violation was serious.

A Coincidental Day of Training

On the morning of the inspection, MPC held/sponsored a toolbox talk, which addressed 

fall protection. (Tr. 164–69; Ex. C-7). As part of the presentation, Clyde George discussed 29 

C.F.R. § 1926.500(a)(1), which, in addition to describing the scope of Subpart M, provides a 

limited exception to the general rule of fall protection. Prior to this point, Wilson had never heard 

of this exception, which applies to inspection-related activities under certain conditions. See 29 

C.F.R. § 1926.500(a)(1). Respondent espouses a 100% fall protection policy and has never 

discussed this exception in any of its training programs, manuals, or handbooks.4(Tr. 208). 

When it came time to address the placement of the regulator vents in the second floor 

closets, Wilson found that the guardrails had not been moved to the edge of the balcony as 

requested, thereby leaving any occupant of the balcony exposed to a fall. (Tr. 244). Wilson 

determined a limited excursion onto the balcony for the sole purpose of taking measurements for 

future construction activities would be within the ambit of the exception discussed by the general 

contractor earlier that morning. Equipped with nothing more than a tape measure, Wilson testified 

he carefully stepped through the guardrail and stayed close to it as he moved toward the closet. 

 

4. The Court notes that Respondent’s safety program appeared only to supply fall protection instruction as it relates 

to scaffolding. (Tr. 213–14; Ex. C-12, C-14). 
6

(Tr. 246–47). Once he completed his measurements—and discovered the presence of his 

subordinate—Wilson returned to the protected side of the guardrail. (Tr. 247–48). Wilson testified 

he had no intention of beginning the installation of the regulators that day owing to the placement 

of the guardrail and thus limited his activities to measurements. (Tr. 198–99). 

Discussion

Citation 1, Item 1

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

29 CFR 1926.501(b)(1): Each employee on a walking/working surface with an unprotected 

side or edge which was 6 feet or more above a lower level was not protected from falling 

by the use of guardrail systems, safety net systems, or personal fall arrest systems. 

a) Building 5: On or about November 20, 2016, and at times prior, two worker[s] were 

exposed to falling approximately 10 feet to the ground below when they crossed the 

guardrail at the entrance to a second floor balcony with an unprotected edge. 

Citation and Notification of Penalty at 6.

5

Undisputed Matters

To establish a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge 

of the violative condition (i.e., the employer knew, or with the exercise of reasonable diligence 

could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

 

5. There appears to be a scrivener’s error in the narrative of the violation. The parties stipulated the inspection occurred 

on October 20, 2016, and the Citation indicates an inspection on “10/20/2016 – 10/20/2016”. Citation and Notification 

of Penalty at 6. But, the citation alleges the violation occurred on “November 20 and at times prior to”. Id. Throughout 

the trial, the parties consistently referenced the October 20, 2016 date, and the error in the citation narrative appears 

to have been overlooked. Further, Wilson testified the fall protection training illustrated in exhibit R-24, which 

occurred on October 28, 2016, took place after the inspection occurred. In essence, the parties amended the Citation 

by consent. See Fed. R. Civ. P 15(b)(2). Thus, the Court sua sponte amends the Citation to reflect the appropriate date 

of October 20, 2016. 
7

During trial, and also in its brief, Respondent agreed that certain matters were not in 

dispute, including: (1) that Wilson and Pezick were exposed to the fall hazard; (2) that the terms 

of the cited standard were violated; and (3) that the standard applies insofar as the exception found 

at 1926.500(a)(1) does not apply. (Tr. 96–103). See also Resp’t Br. at 3. The trial record supports 

these conclusions. The cited standard requires fall protection when employees are exposed to 

unprotected sides and edges over six feet above the ground. Wilson and Pezick crossed through 

the guardrails onto an unprotected balcony, which was more than six feet above the ground below, 

and did not use any other form of fall protection. Accordingly, the remaining issues are: (1) 

whether the exception found at 29 C.F.R. § 1926.500(a)(1) applies to Wilson and Pezick’s 

activities on the day of the inspection; (2) whether Respondent had knowledge of the violation; 

and (3) whether Respondent established the violation was the product of unpreventable employee 

misconduct. 

The Standard Applies

On its face, the cited standard applies to the facts of this case. It requires “[e]ach employee 

on a walking/working 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.” 29 C.F.R. § 1926.501(b)(1). Wilson and Pezick 

circumvented the existing guardrail, which placed them on a balcony with an unprotected edge 

more than 6 feet above the ground. Thus, the standard mandates the use of fall protection. In most 

cases, this alone would be sufficient to establish the applicability of the standard; however, 

Respondent asserts the activities of Wilson and Pezick were covered by the exception found at 29 

C.F.R. § 1926.500(a)(1). 
8

The Exception Found at 29 C.F.R. § 1926.500(a)(1) Does Not Apply

Located at the very beginning of subpart M, there is a limited exception to the general rule 

of fall protection. It states: 

This subpart sets forth requirements and criteria for fall protection in construction 

workplaces covered under 29 CFR part 1926. Exception: The provisions of this 

subpart do not apply when employees are making an inspection, investigation, or 

assessment of workplace conditions prior to the actual start of construction work or 

after all construction work has been completed.

29 C.F.R. § 1926.500(a)(1). Thus, even if the cited standard applies in the most technical sense, 

the exception in 1926.500(a)(1) prohibits application of the subpart M standards when employees 

are conducting inspections, investigations, or assessments prior to the beginning of construction 

or after it has been completed. According to the preamble to the standard: 

OSHA has set this exception because employees engaged in inspecting, 

investigating and assessing workplace conditions before the actual work begins or 

after work has been completed are exposed to fall hazards for very short durations, 

if at all, since they most likely would be able to accomplish their work without 

going near the danger zone. Also, the Agency’s experience is that such individuals 

who are not continually or routinely exposed to fall hazards tend to be very focused 

on their footing, ever alert and aware of the hazards associated with falling. These 

practical considerations would make it unreasonable, the Agency believes, to 

require the installation of fall protection systems either prior to the start of 

construction work or after such work has been completed. Such requirements would 

impose an unreasonable burden on employers without demonstrable benefits.

. . . . 

Therefore, OSHA has decided to reword the provision to make it clear that the 

exclusion only applies when the employer establishes that employees are 

inspecting, investigating, or assessing workplace conditions prior to the actual start 

of work or after the work has been completed. It was OSHA’s intent when it 

proposed this provision that the exclusion would only apply at the two times stated 

above, not during the period when construction work is being performed.

Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. 40,672, 46,675 

(August 9, 1994). 
9

Complainant promulgated a narrow exception that is limited to a specific subset of 

activities (inspection, assessment, or investigation) and to specific points in time (before 

construction starts or after it concludes). Prior to construction beginning or after it ends, the 

amount of time required to install fall protection systems would likely be greater than the length 

of time the inspector needs to perform his inspection, especially, as noted in the preamble, “since 

they most likely would be able to accomplish their work without going near the danger zone” or 

would only be exposed to fall hazards for “very short durations”. Id. 

Commission ALJs have consistently applied Complainant’s interpretation. See, e.g.,

Kirtley Roofing, 25 BNA OSHC 2250 (No. 15-0613, 2015) (ALJ Gatto) (finding employees who 

were moving materials to set up a lifeline and applying sealant were not engaged in inspection, 

investigation, or assessment of workplace conditions); R&S Roofing, LLC, 24 BNA OSHC 2151 

(No. 12-2427, 2014) (ALJ Coleman) (finding employees engaged in seam work were engaged in 

“an essential part of the roofing work itself, and not part of ‘an inspection, investigation, or 

assessment of workplace conditions’”); Modern Bldg. Solutions, LLC, 23 BNA OSHC 1787 (No. 

10-2559, 2011) (ALJ Welsch) (finding exception did not apply to employee examining sheathing, 

who was also responsible for replacing missing nails, removing 2x4 boards, and finishing the roof 

with tar paper and shingles); Cleveland Constr., Inc., 18 BNA OSHC 1648 (No. 97-1356, 1998)

(ALJ Simko) (finding inspection conducted by employee was integral to his primary activity of 

cutting the mezzanine floor edge, which occurred while construction was ongoing, and, thus, 

exception did not apply).

Notwithstanding the foregoing, Respondent places significant emphasis on Seyforth 

Roofing Co., 16 BNA OSHC 2031 (No. 90-0086, 1994). In Seyforth, an employer was charged 
10

with violating 29 C.F.R. § 1926.500(g)(1),

6

because it did not have any fall protection systems 

installed when an employee fell to his death. Seyforth, 16 BNA OSHC 2031 at *1. At the 

conclusion of the previous workweek, Seyforth’s employees took down the roof’s warning line 

system due to high winds. Id. When they returned the following Monday, the employees did not 

re-install the warning lines on the main roof because they only planned to work on the penthouse 

roof, where they would not be exposed to the main roof’s perimeter. At some point after lunch, 

Seyforth’s manager asked the designated foreman whether more roofing materials were needed

for the main roof. The foreman and three other employees went to the edge of the parapet wall 

around the perimeter of the roof to take measurements. While in the process of measuring, one of 

the employees fell to his death. Id.

The ALJ vacated the citation on the grounds of unpreventable employee misconduct. Id.

Although the Commission affirmed the result, it did so on different grounds.7 According to the 

Commission, the case was controlled by 1926.500(g)(2), which states: 

The provisions of paragraph (g)(1) of this section do not apply at points of access 

such as stairways, ladders, and ramps, or where employees are on the roof only to 

inspect, investigate, or estimate roof level conditions. Roof edge materials handling 

areas and materials storage areas shall be guarded as provided in paragraph (g)(5) 

of this section.

29 C.F.R. § 1926.500(g)(2) (amended Feb. 6, 1995) (emphasis added).

8

 Because it was undisputed 

the “employees were at the edge of the roof for the sole purpose of taking measurements”, the 

Commission determined “this type of measurement is precisely the type of work that was intended 

to be exempted from the standard.” Seyforth, 16 BNA OSHC 2031 at *2 (emphasis added). The 

 

6. As will be discussed in more detail below, this case was decided prior to the promulgation of the final rules for fall 

protection in construction. See 59 Fed. Reg. 40,672. Thus, the numbering and, to some extent, the content of the rules 

at issue will be different. 

7. The exception was not discussed by either party or the ALJ prior to Commission review. 

8. Some provisions in the prior version of subpart M were repealed, whereas some others were simply renamed and 

amended. See 59 Fed. Reg. 40,672. 
11

Commission was further persuaded by the Secretary’s inability to prove other employees were 

working on the main roof at the time the measurements were being taken, because the exception’s 

applicability appeared to be limited to when employees “are on the roof only to inspect, investigate, 

or estimate roof level conditions.” 29 C.F.R. § 1926.500(g)(2) (emphasis added). In other words, 

the exception was only applicable when (1) an inspection, investigation, or estimate was being 

performed, and (2) the inspection, investigation, or estimate was the ONLY activity being 

performed on the roof at the time.

Respondent’s reliance on Seyforth is misplaced for two reasons. First, the exception the 

Commission relied upon is materially different than the exception at issue in this case. As 

previously noted, subpart M was substantially amended in 1995, roughly six months after Seyforth

was decided. See 59 Fed. Reg. 40,672 (discussing effective date of amended subpart M). 

Coincident with the amendment, the exception, which was previously found only in subparagraph 

(g), was broadened to address fall hazards in construction generally, as opposed to those found on 

low-pitched roofs during built-up roofing operations. Compare 29 C.F.R. § 1926.500(a)(1) 

(current) with 29 C.F.R. § 1926.500(g) (amended Feb. 6, 1995). Second, though the exception was 

broadened in terms of whom it applied to, it was also narrowed to the extent that it only applied at 

specific points in time: before the actual beginning of construction and after construction has been 

completed. See id. § 1926.500(a)(1). While application of the old exception was limited based on 

the activity being performed, the exception at issue in this case added a restriction as to when those 

activities can occur. Because the Commission in Seyforth did not have to address whether the 

events occurred before or after construction, its precedential value is limited.

The burden of proving an exception to the general requirements of a standard lies with the 

party claiming the benefit of the exception. See Falcon Steel Co., 16 BNA OSHC 1179 (No. 89-
12

2883 et al., 1993). Exemptions from remedial legislation should be narrowly construed and limited 

to effect the remedy intended. See Pennusco Cement and Aggregates, Inc., 8 BNA OSHC 1378 

(No. 15462, 1980). Applying these principles to the case at bar, the Court finds Respondent failed 

to meet its burden.

The plain language of 1926.500(a)(1) is sufficient to divine its meaning. There are only 

two times when an employer is excused from complying with subpart M: (1) inspections occurring 

“prior to the actual start of construction work”, and (2) inspections occurring “after all

construction work has been completed.” Id. § 1926.500(a)(1) (emphasis added). The time-related 

restrictions on the exception are framed in absolute terms, not as a series of interim “starts” and 

“finishes” that may occur during the course of a construction project. This understanding is 

clarified in the discussion of the standard provided in the preamble to the final rule, which states: 

OSHA has decided to reword the provision to make it clear that the exclusion only 

applies when the employer establishes that employees are inspecting, investigating, 

or assessing workplace conditions prior to the actual start of work or after the work 

has been completed. It was OSHA’s intent when it proposed this provision that the 

exclusion would only apply at the two times stated above, not during the period 

when construction work is being performed. As explained in the preamble to the 

proposed rule, the exception would apply where an employee goes onto a roof in 

need of repair to inspect the roof and to estimate what work is needed. During such 

an inspection, guardrails, body belts, body harnesses, safety nets, or other safety 

systems would not be required. However, if inspections are made while 

construction operations are underway, all employees who are exposed to fall 

hazards while performing these inspections must be protected as required by 

subpart M. The intent of the provision is also to recognize that after all work has 

been completed, and workers have left the area, there may be a need for building 

inspectors, owners, etc. to inspect the work. OSHA recognizes that in these 

situations, all fall protection equipment, such as perimeter guardrail systems, may 

have been removed. OSHA is not requiring the installation of the systems for a 

second time for inspectors, because the Agency recognizes it would be 

unreasonably burdensome to require the reinstallation of fall protection equipment 

after all the work has been completed.

59 Fed. Reg. at 40,675 (emphasis added). The examples in the preamble illustrate the absolute 

nature of the time restrictions and the reason for their implementation. According to the preamble, 
13

the installation of fall protection during an initial assessment or after the completion of all 

construction would impose an unnecessary burden on the employer. In both examples, the act of 

installing the fall protection for the sole purpose of conducting an inspection would likely expose 

the installer to far greater hazards for a longer period of time than the person conducting the 

inspection, who will be “exposed to fall hazards for very short durations, if at all, since they most 

likely would be able to accomplish their work without going near the danger zone.” Id. That the 

preamble refers specifically to “the two times stated above” further buttresses the Court’s 

conclusion the limitation is absolute. 

Although Wilson was engaged in inspection/assessment when he and Pezick entered onto 

the balcony, the Court finds the exception does not apply because the inspection did not occur 

prior to the actual start of construction, nor after all construction had been completed. Respondent 

had started construction in the water heater closets long before Wilson and Pezick entered onto the 

balcony to perform their inspection. Even though Respondent’s crew had not yet installed the 

regulator vents on the second floor, it had already installed the plumbing for the water heaters 

throughout Building 5 and was in the process of installing regulator vents on the first floor. (Tr. 

195). Wilson’s measurements were simply a part of the ongoing project to install regulator vents 

throughout the building, which, itself, was part of the process of installing water heaters in the 

utility closets. His ‘inspection’ did not occur “prior to the actual start of construction”, nor was 

there any sense that it occurred “after all construction ha[d] been completed

Nor does this situation fit into the underlying rationale for the exception in the first place—

the exposure was entirely unnecessary. Unlike a roof repair, wherein an on-site assessment is 

necessary to ascertain required materials and anchor point locations at the outset, fall protection 

was already installed on the balcony, just incorrectly for the purposes of Respondent’s necessary 
14

work on the balcony. In other words, we are not talking about employees that did not use fall 

protection because it was more hazardous or unduly burdensome to install; rather, we are talking 

about employees circumventing existing fall protection because it was incorrectly placed and 

inconvenient. It was not more hazardous nor unduly burdensome to properly re-install the 

guardrails because many construction projects were still scheduled to occur on or about the 

balcony. The installation of the regulator vent, the water heater, and the door to the balcony would 

all eventually require fall protection. 

Based on the foregoing, the Court finds Respondent failed to establish it is entitled to the 

exception found in 29 C.F.R. § 1926.500(a)(1). Accordingly, the Court finds the standard applies 

and was violated.

Respondent Had Knowledge of the Violation 

As described above, Wilson crossed through the guardrails onto the balcony and was 

followed shortly after by Pezick. Wilson testified he told Pezick to remain behind the guardrails 

and proceeded towards the closet, where he took measurements and planned the installation of the 

regulator vent. Wilson claims he did not recognize Pezick went beyond the guardrails until he 

completed his measurements and turned around to go back inside the building. At that time, 

Wilson recalled, he told Pezick to return to the other side of the railing. Thus, the Court is 

confronted with the issue of knowledge from the standpoint of Wilson’s awareness of Pezick’s 

misconduct, as well as Wilson’s knowledge of his own misconduct. 

Respondent contends it did not, indeed could not, have knowledge of the violation for three

primary reasons: (1) Wilson did not know Pezick had followed him onto the balcony even after he 

told him not to do so; (2) Wilson’s knowledge of his own misconduct cannot be imputed to 

Respondent under Tenth Circuit precedent because his misconduct was not foreseeable; and (3) 
15

Wilson had a good faith belief his actions were in conformity with the exception found at 

1926.500(a)(1). In response, Complainant argues Wilson was actually aware of Pezick’s presence 

on the balcony and that Respondent should be charged with Wilson’s knowledge as Respondent’s 

supervisory agent. See John H. Quinlan d/b/a Quinlan Enters. v. Sec’y of Labor, 812 F.3d 832, 

841 (11th Cir. 2016). Further, Complainant argues Respondent should be charged with knowledge 

of Wilson’s misconduct because it was foreseeable in light of Respondent’s deficient fall 

protection program. The Court agrees with Complainant.

In order to prove Respondent had knowledge, Complainant must show that Respondent 

knew or, with the exercise of reasonable diligence, could have known of the violation. Dun-Par 

Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The key is whether 

Respondent was aware of the conditions constituting a violation, not whether it understood the 

conditions violated the Act.9 Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 

1995). Complainant can prove knowledge of a corporate employer through the knowledge, actual 

or constructive, of its supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 

(No. 91-862, 1993). If a supervisor is, or should be, aware of the noncomplying conduct of a 

subordinate, it is reasonable to charge the employer with that knowledge. See Mountain States Tel. 

& Tel. Co. v. OSHRC, 623 F.2d 155, 158 (10th Cir. 1980). But, if the misconduct is committed 

by the supervisor, a different situation is presented. Id.

“When the law of the circuit to which a case would likely be appealed differs from the 

Commission’s case law, we apply the law of that circuit . . . .” Brooks Well Serv., Inc., 20 BNA 

OSHC 1286, 1292 (No. 99-0894, 2003). In the Tenth Circuit, to which this case could be appealed, 

 

9. In this regard, Wilson’s good faith belief that his actions were in compliance with the exception is not relevant to 

the question of whether Respondent had knowledge. However, to the extent that the morning’s presentation on the 

exception may have an impact on whether Wilson’s actions were foreseeable, the Court shall consider it as a factor. 
16

a supervisor’s knowledge of his own misconduct is not imputable to his employer unless it can be 

shown the misconduct was otherwise foreseeable. Mountain States, 623 F.2d at 158. Like other 

circuits, the Tenth Circuit requires Complainant to show foreseeability under these circumstances 

to prevent what it perceives to be a misappropriation of the burden of proof. See id. The court 

found that imputing to the employer the supervisor’s knowledge of his own misconduct would be 

to remove Complainant’s burden to establish one of the prima facie elements and, consequently,

place the risk of nonpersuasion on Respondent. Id. 

Respondent’s Knowledge of Pezick’s Actions

After reviewing the entire record, the Court finds Respondent’s argument that Wilson was 

unaware of Pezick’s presence on the balcony is unconvincing. Wilson may have told Pezick to 

remain behind the guardrail, but he also testified he intended to provide instructions to Pezick 

through the closet studs inside the apartment unit while he was taking measurements inside the 

closet. (Tr. 201). The Court finds it hard to believe Wilson was unaware Pezick was standing 

behind him—when he was supposed to be in an adjacent room looking through gaps in the studs—

given the relatively small amount of space inside the closet, which CSHO Peterson testified was 

no more than four-feet wide by four-feet deep.

From this set of facts, the Court finds it is reasonable to infer Wilson knew or, at the very 

least, should have known Pezick was right behind him on the balcony. If the purpose of Wilson’s 

trip into the closet was, as he testified, to both take measurements and “line out”10 to Pezick the 

process for installing the regulator vents, then one of two conclusions is possible: (1) either Wilson

was instructing Pezick inside the closet, or (2) Wilson should have been aware that Pezick followed 

him, because Pezick was not on the other side of the closet studs where he was supposed to be to 

 

10. Though there was some confusion regarding Wilson’s description of “lining it out”, the Court interprets this to 

mean to outlining the process of measuring and installing the regulator vents. (Tr. 82–83).
17

receive instructions. According to CSHO Peterson, he observed two employees, one after another,

cut through the guardrail and walk across the balcony out of sight. (Tr. 73). The only location that 

would place them out of sight is the area immediately adjacent to or in utility closet, which only 

measured four feet by four feet, square. In fact, CSHO Peterson testified that Wilson and Pezick 

both told admitted they were in the closet while Wilson was taking measurements, which explains 

why CSHO Peterson lost sight of them after they entered the balcony. (Tr. 78). Even though 

Wilson estimates he spent less than a minute inside the closet, this was more than enough time for 

him to realize Pezick was not where he was supposed to be, especially when he started “lining out” 

the project. See ComTran Group, Inc. v. U.S. DOL, 722 F.3d 1304, 1308 (11th Cir. 2013) (“An 

example of constructive knowledge is where the supervisor may not have directly seen the 

subordinate’s misconduct, but he was in close enough proximity that he should have.”).

Accordingly, the Court finds Respondent, through Wilson, had constructive knowledge of Pezick’s 

violation of 29 C.F.R. § 1926.501(b)(1). 

Respondent’s Knowledge of Wilson’s Actions

The key to establishing employer knowledge in this context is foreseeability. In order to 

prove foreseeability, Complainant must show Respondent’s safety program is deficient in a way 

that would show the supervisor’s misconduct was preventable.

11 This burden can be met through 

proof of “inadequacies in safety precautions, training of employees, or supervision.” Capital Elec. 

Line Builders of Kansas Inc. v. Marshall, 678 F.2d 128, 130 (10th Cir. 1982). In the context of 

fall protection, Respondent’s safety program was deficient in all three areas. 

 

11. The assessment of foreseeability tracks the elements of unpreventable employee misconduct. See Horne Plumbing 

& Heating Co. v. OSHRC, 528 F.2d 564, 571 (5th Cir. 1976) (holding an employer may not be penalized “for the 

unforeseeable, implausible, and therefore unpreventable acts of his employees”).
18

In the particular arena of fall protection, Respondent’s safety program was inadequate. 

Respondent has multiple safety program documents, including an Employee Handbook, a printed 

Safety Program, and a safety program specific to the Elevate Wolff-Havana project, but the only 

discussion of fall protection relates specifically to the use of scaffolds, which are covered by 

subpart L and were not part of Wilson’s work on the day of the inspection. (Ex. C-12 at 16, C-14, 

C-15).

12 The Employee Handbook does not discuss fall protection, and the site-specific safety 

program appears to be little more than a reproduction of Respondent’s general safety program, 

with no additional measures regarding fall protection outside of scaffolds. (Compare Ex. C-12 with

C-15). The lack of any fall protection rules, let alone a comprehensive program, is a substantial 

deficiency.

Respondent claims, though there is no documentation, that it has a 100% fall protection 

rule. (Tr. 208). The only documentation of Respondent’s fall protection “program”, other than 

that related to scaffolds, consists of a single worksite safety meeting on June 6, 2016, which 

covered fall protection on roofs. (Tr. 219–20; Ex. R-33). The remaining weekly training topics 

covered other safety issues, ranging from GFCIs to forklifts. (Ex. R-25). The only other 

documented training sessions for fall protection were the MPC toolbox talk, which discussed the 

disputed exception, and the fall protection training Respondent provided after the inspection 

occurred. (Ex. R-16, R-24). McMillan testified Wilson and Respondent’s other foreman were 

required to take the OSHA 10-hour course, which purportedly discusses fall protection, but no 

documentation of the course materials was submitted into evidence. (Tr. 263; Ex. C-20). 

While the absence of a written rule does not, itself, prove Wilson’s actions were 

foreseeable, verbal rules, such as Respondent claims here, must be clearly and effectively 

 

12. After the inspection, Respondent updated its safety program to include extensive information on fall protection

and conducted comprehensive fall protection training. (Ex. C-13, R-24). 
19

communicated to employees. See Aquatek Systs. Inc., 2006 WL 741751 (No. 03-1351, 2006)

(citing Capform, Inc., 16 BNA OSHC 2040, 2043) (No. 91-1613, 1994)). The only fall protection 

training provided by Respondent prior to the inspection was specific to roofing and did not address 

the hazards confronted by its crew at Building 5 on the day of the inspection. (Tr. 220). With a 

workforce of 149 employees, the Court is not convinced that Respondent’s verbal rule was

effectively communicated given that its fall protection program was little more than an ad hoc

compilation of training modules that only tangentially addressed the hazards present at the Elevate 

Wolff-Havana project. Cf. Aquatek Systs., Inc., 2006 WL 741751 at *2 (No. 03-1351, 2006) 

(“Indeed, Aquatek’s small size—a total of four employees, including owner Ken Morris and his 

brother, foreman Morris—makes it an unlikely candidate for a formal written safety program of 

the kind typically associated with larger companies.”). 

Respondent presented evidence of a disciplinary program and a safety committee, which 

is comprised of five different members of management. (Tr. 262–63). The committee is charged 

with developing safety programming and training. (Id.). According to McMillan, Respondent’s 

general superintendent, Bill Lund (who is also a member of the safety committee) is responsible 

for overseeing all project foremen at the job sites Respondent is working on. (Tr. 265). McMillan 

testified that Lund monitored various worksites and served as “an extra set of eyes”, but there was 

no evidence regarding how, when, or the frequency at which such monitoring occurs. See 

Burford’s Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899, 2010) (determining monitoring efforts 

were inadequate when audits of equipment were performed sporadically and only involved brief 

walk-around inspections); L.E. Meyers Co., 16 BNA OSHC 1037, 1042 (No. 90-945, 1993) 

(finding safety program inadequate, in part, because company safety officials failed to monitor 

supervisor’s adherence to safety rules during “the month or more” he was assigned to cited 
20

worksite). But see Stahl Roofing, Inc., 19 BNA OSHC 2179 (No. 00-1268 et al., 2003) (finding 

adequate supervision where supervisors visit sites once per day, safety manager visits 10 to 15 

sites per week, and company president makes unannounced visits to various worksites). Indeed, 

in this case there was no testimony or evidence indicating Wilson’s crew—or any Ovation crew 

for that matter—had ever been audited or monitored during its time at Elevate Wolff-Havana prior 

to the inspection on October 20, 2016. Because Respondent (1) had no written fall protection rule 

applicable to the conditions in this case; (2) had a verbal, vague, non-specific 100% tie-off policy; 

and (3) failed to establish that it took reasonable steps to discover violations or monitor compliance 

with safety requirements, the Court finds Respondent’s safety program was inadequate. See 

Stanley Roofing Co., Inc., 21 BNA OSHC 1462 (No. 03-0997, 2006). 

Finally, the Court also rejects Respondent’s argument that the training Wilson received on 

the 1926.500(a)(1) exception was unforeseeable and his subsequent trip over the guardrail was 

unpreventable. The question of whether Respondent had knowledge is directed at the conditions 

constituting a violation, not whether the law characterizes those conditions as such. See Phoenix 

Roofing, 17 BNA OSHC at 1079–80. That fact notwithstanding, the Court finds it unsurprising 

Wilson acted upon the fall protection exception information he received during the MPC toolbox 

talk. To that point in time, Wilson’s conduct was not governed by any specific Respondentgenerated, written fall protection rules or programs; the training he (and Pezick) received did not 

govern the specific hazards present at the worksite; and Respondent had no discernible program 

for monitoring fall protection compliance at this location. Under these circumstances, Wilson’s 

violative actions were foreseeable and preventable. 

Further, the Court notes that the guardrails had been installed “incorrectly” for a long time.

Clyde George testified the orientation of the guardrails at the entry to the balcony was determined 
21

in a pre-construction meeting with his framers. (Tr. 177–78). Prior to his foray onto the balcony 

on the day of the inspection, Wilson testified he and the other crew members entered into the closet 

through the spaces between the interior studs. Subsequent installation of plumbing and electrical 

wiring, however, impeded their ability take that route. (Tr. 209). According to Wilson, he asked 

MPC to move the guardrails “[a]bout three or four” times, but he received no response. (Tr. 244). 

Instead of requiring MPC to move the guardrails to the perimeter of the balcony prior to performing 

additional work—or refusing to work in the area until the guardrail condition was corrected—

Wilson’s crew continued to walk onto the balcony to get to the closet, even though there was no 

protection from the unprotected edge of the balcony only a couple of feet away. Wilson and crew 

had been on site for 6 months, 5 days a week, during which time Wilson testified he was the highest 

ranking official for Respondent on the worksite. (Tr. 190). During that time, Respondent installed 

roughly 90 percent of the plumbing on all floors of Building 5, including the closets, even though 

the fall protection on the balconies was inadequate. (Tr. 192). Given that the guardrails were 

situated at the entrance to the balcony for a substantial period of time, Respondent could have 

insisted that the problem be corrected before its employees were exposed to the hazard. The length 

of the time the condition existed, the lack of explicit fall protection rules, and the lack of an 

effective worksite monitoring program, cause this Court to conclude that Wilson’s actions on the 

day of the inspection were foreseeable and preventable. Respondent is charged with constructive 

knowledge of the violation. 

Respondent Failed to Prove the Affirmative Defense of 

Unpreventable Employee Misconduct

In order to prevail on a claim of unpreventable employee misconduct, Respondent must 

show: (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 of the rules; 
22

and (4) it must effectively enforce the rules when violations are detected. Am. Eng’g & Dev. Corp., 

23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). As noted above in footnote 11, the 

analysis of foreseeability closely tracks the elements of a claim for unpreventable employee 

misconduct. As such, the Court will not revisit the foregoing elements in depth; rather, it shall 

herein incorporate by reference the previous section’s findings of fact and conclusions of law. The 

foregoing analysis illustrates Respondent failed to establish its claim of unpreventable employee 

misconduct with respect to Wilson or Pezick. 

Respondent failed to implement effective work rules designed to prevent the violation.

Prior to the inspection in this case, Respondent’s written fall protection program consisted of a 

patchwork of training modules (undetailed in court); a half-page, written section on fall protection 

as it relates to scaffolding; and a vaguely worded, verbal 100% tie-off policy. The training 

Respondent did provide apparently did not cover the hazards on the Elevate Wolff-Havana site, 

and there is no evidence it was provided consistently to account for new employees, such as Pezick, 

who started at Ovation within one month of the inspection and missed the last Respondentprovided fall protection training provided on June 6, 2016. (Tr. 255). Finally, though Respondent 

had a disciplinary program, there was insufficient evidence of the steps Respondent took to 

monitor compliance with safety regulations and to detect violations. 

Accordingly, the Court finds Respondent failed to meet its burden to establish the defense 

of unpreventable employee misconduct. 

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 actually occur; he need only 
23

show that 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).

CSHO Peterson credibly testified that a fall from over 10 feet would cause injuries such as 

contusions and broken bones. (Tr. 88). Respondent did not dispute CSHO Peterson’s testimony. 

Because the possible injuries caused by a fall from the balcony could cause serious injuries, and 

possibly death, the Court finds Complainant has proved the violation was serious. Accordingly, 

the Court finds Complainant met its burden, and Citation 1, Item 1 shall be AFFIRMED as issued. 

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 assessed a penalty of $4,811.00. This penalty is premised on CSHO 

Peterson’s determination the violation was of medium- to high-gravity and the likelihood of an 
24

accident was low. While the Court generally agrees with Complainant’s assessments, the Court 

finds the short duration of Wilson and Pezick’s exposure, coupled with a low likelihood of injury, 

warrants a reduction in penalty. Neither Wilson nor Pezick worked on or near the edge of the 

balcony; instead, after they crossed the guardrail, they cut across the back corner of the balcony 

and went straight into the closet. By Wilson’s own estimate, he and Pezick were on the balcony 

for no more than a minute, during which time they occupied the closet. Indeed, as Wilson testified, 

he was cognizant of the fall hazard and made sure to keep close to the guardrail and the back corner 

of the balcony as he walked into the closet. Considering the totality of the circumstances, the 

Court finds a penalty of $1,000.00 is appropriate. 

Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1(a) is AFFIRMED, and a penalty of $1000.00 is ASSESSED.

/s/

Date: April 17, 2018 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission