United States of America 

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. 10-0551

RYDER TRANSPORTATION SERVICES,

Respondent.

ON BRIEFS: 

Jennifer R. Levin, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph 

M. Woodward, Associate Solicitor; M. Patricia Smith, Solicitor; U.S. Department of 

Labor, Washington, DC 

 For the Complainant 

Carla J. Gunnin, Esq.; Constangy, Brooks & Smith, LLP, Atlanta, GA 

 For the Respondent 

DECISION 

Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners. 

BY THE COMMISSION:

Ryder Transportation Services rebuilds starters and alternators for its vehicles at the 

Ryder Rebuild Center in Doraville, Georgia. Ryder hired M.C. Dean, an electrical contractor, to 

perform work at the Center. On August 27, 2009, an M.C. Dean employee working on the roof 

of the Center fell 26 feet through an unguarded skylight, sustaining fatal injuries. Following an 

inspection, the Occupational Safety and Health Administration issued Ryder a citation under the 

Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, alleging a serious violation 

of 29 C.F.R. § 1910.23(a)(4), a general industry standard skylight provision. The Secretary 

proposed a penalty of $5,000. 
2

Former Administrative Law Judge Stephen J. Simko, Jr. vacated the citation based on his 

conclusion that the Secretary failed to establish Ryder’s knowledge of the conditions constituting 

the violation. For the reasons that follow, we vacate the citation but on different grounds than 

those relied upon by the judge. 

BACKGROUND

At the time of the accident, M.C. Dean had been working at the Center for nearly three

weeks, energizing equipment that Ryder had transferred to the Center from a closed Ryder 

facility and performing other electrical work. M.C. Dean was tasked with installing new circuits, 

switches, and other devices to “bring electricity” to the newly-transferred equipment. The 

company was also tasked with installing a new switch to enable the manual operation of two 

rooftop exhaust fans that were previously controlled thermostatically. When the fans did not 

operate, M.C. Dean’s employee went up to the roof and traversed a section that had an

unguarded corrugated fiberglass skylight, which was not readily discernible because the skylight 

blended into the corrugated roof. 

In the citation, the Secretary alleged that by failing to guard the skylight opening with 

either “a standard skylight screen or a fixed standard railing on all exposed sides[,]” Ryder 

violated 29 C.F.R. § 1910.23(a)(4).1 On review Ryder renews the threshold argument it made 

before the judge, contending that the cited general industry standard does not apply to the alleged 

violative condition because M.C. Dean’s work at the Center was construction work and, 

therefore, was covered by the construction standards. The judge had rejected Ryder’s argument, 

concluding that M.C. Dean’s work activities constituted maintenance rather than construction 

work.

DISCUSSION 

It is well established that OSHA’s construction standards, rather than any comparable 

general industry standards, cover activities that constitute “construction work” under 29 C.F.R. 

§ 1910.12. See, e.g., Jimerson Underground, Inc., 21 BNA OSHC 1459, 1462, 2004-09 CCH 

OSHD ¶ 32,800, pp. 52,464-65 (No. 04-0970, 2006) (holding that because the cited “activities 

constituted construction work . . . , the general industry standards do not apply”). Paragraph (b) 

of this provision defines “[c]onstruction work” as “work for construction, alteration, and/or 

 

1

Section 1910.23(a)(4) states: “Every skylight floor opening and hole shall be guarded by a 

standard skylight screen or a fixed standard railing on all exposed sides.” 
3

repair, including painting and decorating.” 29 C.F.R. § 1910.12(b). The Commission has held 

that “the construction standards only apply to actual construction work or to related activities that 

are an integral and necessary part of construction work.” B.J. Hughes, Inc., 10 BNA OSHC 

1545, 1546-47, 1982 CCH OSHD ¶ 25,977, p. 32,579 (No. 76-2165, 1982). Maintenance, on the 

other hand, involves work associated with “keeping something in proper condition.” See, e.g.,

Gulf States Utils. Co., 12 BNA OSHC 1544, 1546, 1984-85 CCH OSHD ¶ 27,422, p. 35,524 

(No. 82-867, 1985) (replacement of damaged porcelain insulators with epoxy insulators was 

maintenance where “lines were simply maintained in the same condition they were before the 

insulators were damaged” (internal quotation marks and citation omitted)).

We disagree with the judge’s conclusion that M.C. Dean’s work activities constituted 

maintenance. Ryder hired M.C. Dean to perform electrical work, including electrifying the 

newly-transferred equipment. Among other tasks, M.C. Dean: (1) used an aerial lift to run a total 

of about 200 to 250 feet of metal conduit and wiring along the Center’s ceiling and walls; (2) 

added five new circuits; (3) installed a new 100-amp load center for additional power and wiring, 

three new 30-amp three-phase circuits for some test equipment, a new 90-amp two-volt circuit 

for a spot welder, a 125-three-amp circuit for a new oven, a new 200-amp switch in the main 

gear box, and a plug over the office door in the shipping area; (4) installed a new switch into a 

concrete wall; (5) ran metal conduit and wires to energize and manually control the two rooftop 

exhaust fans; (6) replaced a damaged 60-amp twin switch “in the main gear”; (7) disconnected

and relocated power for existing ovens; and (8) demolished an old fan and two heaters in the 

Center’s ceiling. 

M.C. Dean’s work amounts to a substantial alteration of the Center’s electrical system 

and, thus, fits squarely within the definition of construction work set forth under § 1910.12(b). 

See Active Oil Serv., Inc., 21 BNA OSHC 1184, 1186, 2004-09 CCH OSHD ¶ 32,803, p. 52,497 

(No. 00-0553, 2005) (concluding that building’s “conversion from oil to gas heat constituted an 

alteration of [it] and its surrounding property,” and that cited employer’s removal of “oil tanks 

and oil-burning equipment was an integral part of this alteration” and, therefore, was 

construction work).2 M.C. Dean’s work cannot be deemed maintenance because it involved 

 

2

The Commission’s decision in Royal Logging Co., 7 BNA OSHC 1744, 1750, 1979 CCH 

OSHD ¶ 23,914, p. 28,996 (No. 15169, 1979), aff’d, 645 F.2d 822 (9th Cir. 1981), referenced by 

the Secretary in his reply brief, is inapposite. In that case, the Commission relied on its 
4

much more than just keeping the electrical system in proper condition.3See Gulf States Utils.

Co., 12 BNA OSHC at 1546, 1984-85 CCH OSHD at p. 35,524. Because we find that M.C. 

Dean’s work at the Center comes within the definition of “[c]onstruction work” for purposes of 

Part 1926, 29 C.F.R. § 1910.12(b), we conclude that the Secretary has failed to establish that the 

cited general industry standard applies to the working conditions here.4

 

“decisions apply[ing] the construction standards . . . to related activities that are an integral and 

necessary part of construction work” as analogous authority to find that the construction 

standards did not apply to a logging company’s building of trails, roads and bridges. Id. at 1749-

50, 1979 CCH OSHD at p. 28,996. Specifically, although recognizing that such building 

activities “might normally be considered construction,” the Commission concluded that the 

construction standards were inapplicable because the work was “ancillary to and in aid of [the 

company’s] primary non[-]construction function to cut and deliver logs.” Id. at 1750, 1979 CCH 

OSHD at p. 28,996. In short, the Commission viewed these building activities as an ancillary but 

integral component of the company’s primary, non-construction operation. 

The present case, however, does not involve an employer whose non-construction business has 

an intertwined construction-activity component. Ryder’s “primary non-construction function” at 

the Center was the rebuilding of starters and alternators for use in Ryder-owned vehicles. M.C. 

Dean’s work consisted of discrete electrical projects—such as the installation of electrical 

equipment for the newly-transferred machines and the fan work—rather than activities integral to 

rebuilding starters and alternators. Indeed, M.C. Dean’s electrical work was no more integral to 

Ryder’s “primary” function than a contractor’s modification of a building’s heating system was 

to that building’s primary function as a house of worship. Active Oil. Serv., Inc., 21 BNA OSHC 

at 1186, 2004-09 CCH OSHD at p. 52,497 (finding that removal of oil tanks for converting 

heating system from oil to gas was construction and not covered by general industry confined 

space standard). Accordingly, Royal Logging is distinguishable. 

3

The Secretary has previously stated that “the scale and complexity of the project are relevant” 

in determining whether work is construction or maintenance—a project’s larger scale, which 

includes the time and amount of material involved, weighs in favor of considering the work 

construction. OSHA Interpretation Letter from Directorate of Construction to Raymond V. 

Knobbs (Nov. 18, 2003). Under that approach, the nearly three weeks M.C. Dean worked at the 

Center and the nature of the tasks performed over that time support our finding that the company 

was performing construction work rather than maintenance.

4

 We note that before the judge, the Secretary moved to amend the citation to allege, in the 

alternative, a violation of 29 C.F.R. § 1926.501(b)(4)(i), the construction standard that addresses 

unprotected skylights. The judge denied the motion and the Secretary does not challenge his 

ruling on review. Under these circumstances, we deem the amendment issue abandoned. See 

Cleveland Wrecking Co., 24 BNA OSHC 1103, 1107 n.2, 2013 CCH OSHD ¶ 33,277, p. 56,448 

n.2 (No. 07-0437, 2013) (issue deemed abandoned where judge’s ruling not challenged on 

review).
5

Accordingly, we vacate Serious Citation 1, Item 1.5

SO ORDERED. 

/s/ 

 Thomasina V. Rogers 

 Chairman 

/s/ 

Cynthia L. Attwood 

Dated: September 29, 2014 Commissioner 

 

5

 With respect to Commissioner MacDougall’s concurrence, Chairman Rogers and 

Commissioner Attwood simply note that as an adjudicative body we decide the dispositive issues 

in the cases before us, as we have done here. For that reason, we decline to address 

Commissioner MacDougall’s concurrence further. 
6

MACDOUGALL, Commissioner, concurring: 

I join in my colleagues’ decision to vacate the citation. I agree with the majority’s 

conclusion that the cited general industry standard is preempted by this specifically applicable 

construction standard. Although the Secretary sought leave before the judge to amend the 

citation to allege a violation of a construction standard, 29 C.F.R. § 1926.501(b)(4)(i), I agree, as 

discussed in footnote 4 of the majority’s opinion, that we should not amend the pleadings to 

allege a violation of this construction standard because the Secretary abandoned his request to 

amend. Additionally, I would go one step further than the majority. I would conclude that even 

if the Secretary had not procedurally abandoned his request to amend, alternatively, in reviewing 

the merits, the citation should still be vacated. I write separately to express my opinion on this 

issue, which is raised in the briefing notice and addressed by the parties, as I believe there is a 

compelling party and public interest in discussing its merits, and the majority opinion leaves the 

parties and members of the regulated public uncertain as to the law for future cases.1

The stated purpose of the Occupational Safety and Health Act of 1970 (the “Act”) is to 

assure “safe and healthful working conditions” by, among other things, “authorizing the 

Secretary of Labor to set mandatory occupational safety and health standards.” Section 2(b), 29 

U.S.C. § 651(b). Since standards are a basic mechanism by which the purpose of the Act is to be 

 

1

 I disagree with the majority’s suggestion in footnote 5 that it is improper to discuss alternative 

grounds for vacating the citation. The Commission’s policy in determining the issues to address 

on review is codified in Rule 92(a), which provides: 

(a) Jurisdiction of the Commission: Issues on Review. Unless the 

Commission orders otherwise, a direction for review establishes jurisdiction in the 

Commission to review the entire case. The issues to be decided on review are 

within the discretion of the Commission but ordinarily will be those stated in the 

direction for review, those raised in the petitions for discretionary review, or those 

stated in any later order. 

29 CFR § 2200.92(a). The issues discussed herein were raised in the petition for discretionary 

review, and following the Commission’s direction for review, they were ordered to be addressed 

in the briefing notice, which the parties did. 

The majority may choose not to deal with the thorny issues, arguments, and case precedent 

discussed by this concurrence, and certainly, my colleagues have the discretion to not address 

these issues, given that the vacation of the citation meets the requirement of the Administrative 

Procedure Act for an agency’s conclusions and findings to resolve the controversy. See 5 U.S.C. 

§ 557. However, given the decision to vacate on procedural grounds, I prefer that the parties and 

regulated public not be left to guess with respect to the material issues of this case; thus, my 

separate opinion on the merits of a violation of 29 C.F.R. § 1926.501(b)(4)(i). 
7

achieved, it is appropriate in determining the scope of a particular set of standards to consider the 

nature of the working conditions sought to be regulated. When an employer is cited for 

violations under one of the specific industry standards, rather than the general industry standards, 

the Secretary must establish that the workplace falls under that industry’s standards. The 

Commission has held that the construction standards apply only to employers who are actually 

engaged in construction work or who are engaged in operations that are an integral and necessary 

part of the construction work.2

 Cardinal Indus., Inc., 12 BNA OSHC 1585, 1586-87, 1984-85 

CCH OSHD ¶ 27,446, p. 35,557 (No. 82-427, 1985), rev’d, 828 F.2d 373 (6th Cir. 1987) 

(abrogated on other grounds by Martin v. OSHRC, 499 U.S. 144 (1991)); United Geophysical 

Corp., 9 BNA OSHC 2117, 2121, 1981 CCH OSHD ¶ 25,579, p. 31,906 (No. 78-6265, 1981), 

aff’d without published opinion, 683 F.2d 415 (5th Cir. 1982); B.J. Hughes, Inc., 10 BNA OSHC 

1545, 1547, 1982 CCH OSHD ¶ 25,977, p. 32,579 (No. 76-2165, 1982). A citation to Ryder 

based on a construction standard, even if an amendment were granted, would have to be vacated 

as Ryder is neither an employer engaged in construction work nor one engaged in operations that 

are an integral and necessary part of the construction work at issue. Thus, I would find the 

construction standards inapplicable to Ryder. 

The Secretary’s proposed amendment sought to hold Ryder liable for failing to ensure 

that “[e]ach employee on walking/working surfaces shall be protected from falling through holes 

(including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, 

covers, or guardrail systems erected around such holes.” 29 C.F.R. § 1926.501(b)(4)(i). 

However, the construction-specific requirements of § 1926.501(b)(4)(i), and the conditions 

which the standard seeks to address, are wholly inapplicable to Ryder and its employees. 

Ryder’s employees did not walk or work on any surface with any hole or skylight which 

presented any hazard, and they did not participate in the construction work performed by M.C. 

Dean. Indeed, Ryder employees were prohibited from going on the rooftop where the skylight in 

 

2

Section 1910.12 provides in part: 

§ 1910.12 Construction work. 

(a) Standards. The standards prescribed in Part 1926 of this chapter are 

adopted as occupational safety and health standards under section 6 of the Act and 

shall apply, according to the provisions thereof, to every employment and place of 

employment of every employee engaged in construction work. 

. . . .
8

question was located. Ryder’s business took place on the ground floor of its facility where it is 

in the business of rebuilding engine parts. 

 Ryder is not engaged in construction work by any stretch of reasonable argument. It is 

not a general contractor or a construction professional. It is not an architectural, engineering, or 

construction management firm engaged in construction.3

 Ryder lacks experience in any 

construction trade or any safety practices attendant to any construction trade. None of Ryder’s 

employees were engaged in construction work. Quite to the contrary, Ryder’s activities were 

wholly unrelated to the performance or supervision of any construction work.4

 There is simply 

no nexus between Ryder’s work—manufacturing—and the performance of construction work.5

 

3

 An issue that has come before the Commission is whether firms such as those involved in 

architecture, engineering, or construction management are engaged in construction for purposes 

of the Act. The Commission has found that if the firm has broad supervisory authority over the 

project and controls the actual work, or if the firm is responsible for administration and 

coordination of the work, including the safety program, the firm may be subject to the 

construction standards. By contrast, a firm with a more limited (i.e. less broad) role in a project 

may be deemed not engaged in construction even though it plays some active (albeit limited) 

role at the construction site. See Simpson, Gumpertz & Heger, Inc., 15 BNA OSHC 1851, 1991-

93 CCH OSHD ¶ 29,828 (No. 89-1300, 1992), aff’d, 3 F.3d 1 (1st Cir. 1993); Skidmore, Owings 

& Merrill, 5 BNA OSHC 1762, 1977-78 CCH OSHD ¶ 22,101 (No. 2165, 1977); CH2M Hill 

Central, Inc., 17 BNA OSHC 1961, 1995-97 CCH OSHD ¶ 31,303 (No. 92-0888, 1997), petition 

for review dismissed by 131 F.3d 1244 (7th Cir. 1999); Fleming Constr., Inc., 18 BNA OSHC 

1708, 1710, 1999 CCH OSHD ¶ 31,809, p. 46,699 (No. 97-0017, 1999) (“The Commission [has] 

held that employers who are not themselves engaged in construction work cannot be subjected to 

the construction standards unless they substantially supervise or otherwise directly control the 

actual performance of construction trade labor.”). Clearly, Ryder’s role does not constitute broad 

supervisory authority over M.C. Dean’s actual work. 

4 While I agree with the majority that Royal Logging Co., 7 BNA OSHC 1744, 1750, 1979 CCH 

OSHD ¶ 23,914, p. 28,996 (No. 15169, 1979), aff’d, 645 F.2d 822 (9th Cir. 1981), is

distinguishable, I find it inapplicable here for a different reason than stated by the majority. 

Namely, the holding in Royal Logging was focused on the broader business conducted by the 

cited employer—Royal Logging, itself—rather than the broader business conducted by an 

independent contractor. In simplistic terms, Royal Logging simply holds that an employer does 

not fall under the construction standards merely because one of its employees swings a hammer; 

instead, the applicability (or inapplicability) of the construction standards depends upon the 

nature of the employer’s work as a whole. Applied here, M.C. Dean’s work is properly subject 

to the construction standards—rather than the general industry standards—because it was not 

ancillary to a broader non-construction business conducted by M.C. Dean. It is immaterial 

whether the electrical work was ancillary to Ryder’s broader business. 

5

 Thus, the facts of this case do not even come close to those presented in Cardinal Industries, 

Inc., 12 BNA OSHC 1585, 1984-85 CCH OSHD ¶ 27,446 (No. 82-427, 1985), rev’d, 828 F.2d 
9

Further, notwithstanding the Secretary’s claim, the Secretary cannot cite Ryder under the 

construction standards simply by relying upon OSHA’s multi-employer citation policy (“MEP”) 

as either a “creating” or “controlling” employer. The MEP was created by the Secretary to cite 

multiple employers at a multi-employer site without regard to which entity directly employed the 

exposed individual.6

 See OSHA Instruction CPL 02-00-124 (Dec. 10, 1999) (discussing that 

employers at multiemployer worksite—defined as either creating, exposing, correcting, or 

controlling employers—may be cited, whether or not their own employees are exposed). I share 

the concerns noted by former Commissioner Horace A. Thompson, III in his vigorous dissent in 

Summit II with regard to the MEP. In sum, like former Commissioner Thompson, I too see 

tension between OSHA’s MEP and the Act’s statutory language.7

 My concerns are especially 

 

373 (6th Cir. 1987) (abrogated on other grounds by Martin v. OSHRC, 499 U.S. 144 (1991)), 

where the employer was manufacturing modular housing units in a factory. There, the 

respondent was cited under the general industry standards for failing to have guardrails on two 

platforms. The ALJ affirmed the violations, but the Commission reversed. The Commission 

majority concluded that the general industry standards did not apply because the employer was 

engaged in construction. “Although Cardinal’s employees construct housing units in a factory 

setting, the carpentry, plumbing, roofing, and electrical work they perform is identical to that 

performed at a construction site, and identical to the kind of work that OSHA specifically 

intended Part 1926 to cover.” Id. at 1587, 1984-85 CCH OSHD at p. 35,557. The Sixth Circuit 

rejected this analysis and reversed the Commission. According to the court, in determining 

whether the work performed is “construction” as defined by 29 C.F.R. § 1910.12, it is not the 

nature of the work in the abstract, but the nexus of the work to a particular construction site. 828 

F.2d at 379. Applying this interpretation to § 1910.12, the court concluded that the employer 

was not engaged in construction as its operations occurred wholly within its plant, with no 

connection to any construction site. Id. at 380. 

6

The Secretary states that the MEP was created in recognition that an employer should not be 

able to shirk its safety obligations simply because the worker who was injured happened to be 

working for a different entity, such as a subcontractor. See Summit Contractors, Inc., 23 BNA 

OSHC 1196, 1199-1200, 2009-12 CCH OSHD ¶ 33,079, p. 54,690 (No. 05-0839, 2010) 

(“Summit II”) (citing Compliance Operations Manual ¶ 10 at VII-6 to -8 (May 20, 1971)), aff’d 

unpublished per curiam, 442 Fed. App’x 570 (D.C. Cir. 2011); Teal v. DuPont; 728 F.2d 799, 

805 (6th Cir. 1984) (“once an employer is deemed responsible for complying with OSHA 

regulations, it is obligated to protect every employee who works at its workplace”). The doctrine 

recognizes that an employer’s duty under the construction standards extends to “every 

employment and place of employment of every employee engaged in construction work.” 29 

C.F.R. § 1910.12(a). 

7 As former Commissioner Thompson notes in his Summit II dissent, the Supreme Court’s

decision in Nationwide Mutual Insurance Co. v. Darden (“Darden”) reinforced that Congress is 

presumed to use “employee” in the common law master-servant sense. 23 BNA OSHC at 1208, 

2010 CCH OSHD at p. 54,697 (citing Darden, 503 U.S. 318, 322-25 (1992)). The Darden Court 
10

grave under the circumstances here, where the Secretary attempted to use the MEP as a tool to 

hold a general industry employer liable under the construction standards. Despite my misgivings 

regarding the MEP, I acknowledge the MEP has been used to impose liability on employers 

engaged in construction work. E.g., Summit II; Red Lobster Inns of Am., Inc., 8 BNA OSHC 

1762, 1980 CCH OSHD ¶ 24,636 (No. 76-4754, 1980) (construction standards applicable to 

restaurant which engaged in construction work by managing build out of new restaurants). It has 

also been used to impose general industry liability upon general industry employers. E.g.,

Harvey Workover Inc., 7 BNA OSHC 1687, 1688-89, 1979 CCH OSHD ¶ 23,830, pp. 28,908-09 

(No. 76-1408, 1979). However, the Commission has never extended the MEP to apply the 

construction standards to a general industry employer like Ryder, which is simply not engaged in 

any construction work.8

 Indeed in this instance, Ryder’s employees were not even present on the 

rooftop worksite where M.C. Dean was performing the electrical work in question.9 As to 

whether a non-construction employer can be cited under the construction standards, I answer that 

question with an emphatic no—such application would be improper on the basis that it is 

contrary to the language of § 1910.12(b) and Commission precedent. 

The record does not establish that Ryder took control over M.C. Dean’s construction 

work other than simply being a company that contracted with another to perform a specific job 

that it did not have the expertise to perform. In sum, it would be patently unjust to subject Ryder 

to liability under the construction standards simply because Ryder, as property owner, 

necessarily possessed control over its own property. There is no logical reason Ryder should 

 

rejected the premise that the word “employee” in a statute, such as the Act, should be 

expansively interpreted to achieve a statute’s remedial objective, a purpose said to justify 

enforcement of controlling and creating employer duties under the MEP. Id., 2010 CCH OSHD 

at p. 54,697. 

8

See generally Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1306 (D.C. Cir. 1995)

(holding, despite MEP argument from Secretary, that construction standards can only apply to 

respondent if respondent is engaged in construction). 

9

 Notably, even in those cases where the MEP has been applied, it has been limited to those 

instances in which the cited employer itself has employees present at the site of the violative 

conditions. E.g., Solis v. Summit Contractors, Inc., 558 F.3d 815, 824 (8th Cir. 2009) (“an 

employer’s duty to protect the place of employment [includes] others who work at the place of 

employment, so long as the employer also has employees at that place of employment”). Even 

viewing the MEP in the most favorable light, it would be a distortion of the doctrine to apply it 

here merely because Ryder’s employees were repairing engines in the shop beneath M.C. Dean’s 

rooftop worksite. 
11

have contemplated the requirements of the construction standards, including § 1926.501(b)(4)(i), 

much less with respect to an independent contractor hired to independently perform construction 

work on the property. The Secretary should not be permitted to use the MEP to extend 

application of the construction standards where they are plainly inapplicable. If the Secretary 

were allowed to prosecute this case under OSHA’s MEP, the specific duty defined by the cited 

construction standard may be imposed on employers who merely own the buildings in which 

they engage in business. 

 

 /s/ 

 Heather L. MacDougall 

Dated: September 29, 2014 Commissioner 
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 10-0551

Ryder Transportation Services,

 Respondent.

Appearances:

Jeremy Fisher, Esquire, Atlanta, GA

For Complainant

Carla J. Gunnin, Esquire, Atlanta, GA

For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

 DECISION AND ORDER

Ryder Transportation Services rebuilds starters and alternators for Ryder vehicles at its

facility in Doraville, Georgia. On August 27, 2009, an employee working for an electrical contractor

at the facility fell from the roof through a skylight, sustaining fatal injuries.

 Occupational Safety and Health Administration (OSHA) compliance officer Reinaldo White

was assigned to investigate the accident. Based on his inspection, the Secretary issued a one-item

citation to Ryder on February 24, 2010. Item 1 of Citation No. 1 alleges Ryder committed a serious

violation of 29 C. F. R. § 1910.23(a)(4), by failing to guard its facility’s skylights with standard

skylight screens or fixed standard railings. The Secretary proposed a penalty of $ 5,000.00 for this

item. She issued the citation under her multi-employer citation policy. (The Secretary also issued

a citation to M. C. Dean, the electrical contractor on the site.)

Ryder timely contested the citation. In its answer, Ryder admitted jurisdiction and coverage. 

A hearing was held in this matter on September 30 and October 1, 2010, in Decatur, Georgia. The

parties have filed post-hearing briefs. Ryder contends (1) the cited standard does not apply to the

cited condition; (2) its employees were not exposed to an unsafe condition; (3) M. C. Dean’s

employees were not exposed to unsafe conditions, in accordance with the Secretary’s multi-employer

citation policy; and (4) Ryder had no knowledge of the violative condition.
Based on the Secretary’s failure to establish Ryder’s knowledge of the violative condition,

as discussed below, the court vacates Item 1 of Citation No. 1.

Background

Ryder owns and operates a facility on Button Gwinnett Drive in Doraville, Georgia, where

it rebuilds, or “remanufactures” starters and alternators for its vehicles. Ryder was not the original

owner of the facility; the company moved into the existing structure in 1985. The structure was

described at the hearing as a “pretty big warehouse,” but no exact dimensions were given (Tr. 27). 

It was suggested the facility may be as large as a football field, but the only estimate ventured was 

the building was approximately 100 feet long by 70 feet wide (Tr. 132). Compliance officer

Reinaldo White measured the height of the facility’s ceiling, and found it to be 25.8 feet high.

At least two fiberglass skylights were installed in the roof. The skylights were approximately

3 feet wide and 10 to 12 feet long. The skylights were clearly visible from the inside of the

warehouse. They were more difficult to discern from the roof because they were made in the same

corrugated pattern and were of the same color as the roof. The skylights were not guarded with

screens or railings.

At the time of the hearing, Ryder employed fourteen full-time and ten part-time employees

at the facility. The general manager was John Kaiser. He supervised foreman Brooks Bryan, who

in turn supervised leadman Jeffrey Thompson.

Ryder had operated a similar remanufacturing facility in Pennsylvania, which it had closed

some time before August 2009. Ryder moved some of the equipment from the Pennsylvania location

to the Doraville facility. The company hired M. C. Dean, an electrical contractor, to perform the

necessary electrical work to install the transferred equipment, and to perform other miscellaneous

repairs. Ryder and M. C. Dean had a longstanding relationship, and Kaiser regarded M. C. Dean as

“a reliable contractor” (Tr. 90). 

Three M. C. Dean employees worked at Ryder’s facility in August 2009: supervisor Boyd

Young, journeyman electrician Lewis Quinn, and apprentice electrician Sam Ditmore. In order to

perform some of the electrical work near the ceiling, M. C. Dean had rented an aerial lift. When M.

C. Dean’s employees first arrived in August, Ryder had gone over a list of repairs and installations

to be completed by M. C. Dean. At some later point, Ryder asked M. C. Dean to install conduit and

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a switch for two exhaust fans located in the ceiling of the facility. The exhaust fans had not worked

since Ryder took over the facility in 1985. After M. C. Dean installed the conduit and switch, the

exhaust fans still did not work. M. C. Dean decided it needed to examine the exhaust fans to

determine why they were not working. The exhaust fans extended through the ceiling to the outside

of the building. M. C. Dean concluded one of its employees needed to go up on the roof to examine

the exhaust fans.

On August 27, 2009, the three M. C. Dean employees arrived at Ryder’s facility at

approximately 7:00 a. m. Quinn used the aerial lift to perform some work inside the facility. 

Around 10:00, Boyd Young and Quinn decided to move the aerial lift outside the facility and use it

to lift Quinn to the roof. Quinn was the employee chosen to go up because he already was wearing

his safety harness and attached lanyard. After the aerial lift was moved outside, Quinn entered the

basket, tied off to the rails, and used the lift’s controls to elevate himself to the roof. Quinn

unhooked his lanyard and stepped out onto the roof.

Quinn was carrying a voltage tester with him, and a two-way radio with which he

communicated with Young. Quinn walked to the first exhaust fan and discovered it had no motor

in it. Quinn radioed this information to Young. Quinn then walked over to the second exhaust fan,

and discovered it too was missing its motor. Quinn started to return to the aerial lift. After analysis

of all evidence, it is reasonable to infer that, instead of retracing his steps and passing back by the

first exhaust fan he had checked, Quinn set off in a direct path from the second exhaust fan to the

aerial lift. A skylight lay in his path. Quinn stepped on the skylight and it broke under his weight. 

Quinn fell 25.8 feet to the concrete floor below, suffering grievous injuries. Ryder and M. C. Dean

employees rushed to his aid. Someone called 911, and an ambulance eventually arrived and took

Quinn to Atlanta Medical Center. Quinn died there 13 days later.

The Citation

The Secretary has the burden of establishing the employer violated the cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a

preponderance of the evidence that (1) the cited standard applies; (2) the employer

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

violative condition; and (4) the cited employer either knew or could have known with

the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

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Item 1: Alleged Serious Violation of 29 C. F. R. § 1910.23(a)(4)

The citation states:

29 CFR 1910.23(a)(4): Every skylight floor opening and hole shall be guarded by a

standard skylight screen or a fixed standard railing on all exposed sides.

On or about 9/11/091 an employee was performing electrical voltage testing on some

exhaust fans at Ryder. The employee stepped on a skylight on the roof and fell

through to approximately 25.8 feet and was fatally injured. Ryder Transportation did

not have any skylight screen or standard railing on all exposed sides to protect the

employee.

The standard at 29 C. F. R. § 1910.23(a)(4) provides:

Every skylight floor opening and hole shall be guarded by a standard skylight screen

or a fixed standard railing on all exposed sides.

(1) Does the Cited Standard Apply?

The Secretary chose to cite Ryder under 29 C. F. R. § 1910.23(a)(4), a general industry

standard. That standard applies when employees are engaged in maintenance activities. In the

present case, Ryder contends, M. C. Dean’s employees were engaged in construction activities.2

Therefore, it argues, the cited general industry standard does not apply to the construction work in

which the employees were engaged.

The standard at 29 C. F. R. § 1910.12 defines “construction work” as work for “construction,

alteration, and/or repair, including painting and decoration.” “Maintenance” is not defined in the

standards. The American Heritage Dictionary (Second Coll. Ed.) defines “maintenance” as “The

work of keeping something in proper condition.”

1

 This date is in error. It is undisputed Quinn fell through the skylight on August 27, 2009. September 11, 2009, is

the date White began his inspection at Ryder’s facility. Both parties referred to the correct date throughout the

proceeding. The erroneous date in the citation caused no prejudice toward Ryder. The citation is amended to reflect

the correct date 

2

 There is a construction standard addressing fall hazards created by working around skylights. The standard at 29

C. F. R. § 1926.501(b)(4) provides:

Each employee on walking/working surfaces shall be protected from falling through holes (including

skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or

guardrail systems erected around such holes.

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Ryder leadman, Jeffrey Thompson, testified M. C. Dean’s work included: repairing security

lights by the back door by replacing the bulbs, repairing fixtures in the paint booth, installing a new

100-amp load center, adding five new circuits, re-securing loose receptacles in the shop walls,

repairing a damaged conduit in the shipping area, installing three new 30-amp circuits for test

equipment, installing a circuit for a spot welder and an oven, relocating power for the existing oven,

installing a new switch in the main gear box, troubleshooting problems with the air conditioning, and

installing a plug over the office door. The “demolition” work M. C. Dean performed consisted of

removing a fan using a screwdriver and some wirecutters. M. C. Dean did not transport or install

the equipment transferred from the Pennsylvania facility. Thompson stated that Ryder “had the

equipment sitting where we wanted it, and then we let them run the power to it” (Tr. 160).

Boyd Young had worked as a foreman for M. C. Dean for three years at the time of the

hearing. Although M. C. Dean has a construction division for its electrical work, Young and his

crew worked in the service division. He characterized M. C. Dean’s job with Ryder as

“[m]iscellaneous electrical repairs and additions” (Tr. 176). The parties did not enter into a written

contract for the job, but reduced it to a purchase order for “electrical repairs” (Exh. C-4).

The record establishes M. C. Dean’s employees were engaged in maintenance, and not

construction, activities. Ryder hired M. C. Dean to keep the existing electrical system and the

transferred equipment in proper condition. The cited general industry standard applies. 

(2) Did Ryder Fail to Comply with the Terms of the Cited Standard?

It is undisputed Ryder did not guard the skylights in the roof of its facility with screens or

standard railings. 

(3) Did Employees Have Access to the Violative Condition?

No Ryder employees were exposed to the unguarded skylights. The last time a Ryder

employee had been on the roof was in 2006, when Thompson had used two ladders (one to access

a mezzanine, and a second to climb to the main roof) to reach the roof in order to change a belt on

an exhaust fan on one of the lavatories. At that time, Thompson noted there were no screens or

railings guarding the skylights. He stated at the hearing that the skylights “look like they’re

corrugated because they match the tin on the roof” (Tr. 33).3

3M.C. Dean foreman Young went up on the roof after the accident with Ryder’s safety director. He stated the

skylights were not as obvious from the roof as they were from the ground: “They were the same pattern as the roof

metal and they were actually the same color as the roof metal” (Tr. 193).

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Ryder later classified the roof as a restricted area, forbidding its employees to access it. 

Ryder safety manager Bill Stewart instructed employees not to go up on the facility roof or trailer

roofs. No one from Ryder informed M. C. Dean of this directive.

The Secretary contends that, under her multi-employer citation policy, Ryder exposed Quinn

to the unguarded skylight. The Commission has recently reversed its previous position, holding the

Secretary may cite a non-exposing, controlling employer under this policy. In Summit Contractors

Inc., 23 BNA OSHC 1196, 1205 (No. 05-0839, 2010), the Commission holds:

“[A]n employer who either creates or controls the cited hazard has a duty under §

5(a)(2) of the Act . . . to protect not only its own employees, but those of other

employees engaged in the common undertaking.” McDevitt Street Bovis, 19 BNA

OSHC at 1109, 2000, CCH OSHD at p. 48,780 (citation omitted). With respect to

controlling employer liability, ‘an employer may be held responsible for the

violations of other employers ‘where it could reasonably be expected to prevent or

detect and abate the violations due to its supervisory authority and control over the

worksite.” Id. (citation omitted); Grossman Steel, 4 BNA OSHC at 1188, 1975-1976

CCH OSHD at p. 24,791.

The violation at issue here is the lack of guarding on the skylights. Only Ryder could take

steps to abate this violation. John Kaiser, Ryder’s general manager, testified he was in charge of

maintenance at the facility, and that Ryder was responsible for the condition of the facility’s roof. 

The Secretary has established Ryder was the controlling employer, and thus liable under the multiemployer citation policy.

Quinn was on the roof pursuant to his assigned duty of testing the exhaust fans. Quinn’s

tragic death is proof of his exposure to the unguarded skylight. 

(4) Did Ryder Have Actual or Constructive Knowledge of the Violative Condition?

The Secretary contends Ryder had actual knowledge of the violative condition. Thompson

was aware someone from M. C. Dean was going to go on the roof to check out the exhaust fans. 

Foreman Brooks Bryan was not at Ryder’s facility on August 27, 2009. When Bryan was away,

Thompson, as leadman, had supervisory authority over the site. “[W]hen a supervisory employer

has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the

employer, and the Secretary satisfies [her] burden of proof without having to demonstrate any

inadequacy or defect in the employer’s safety program.” Dover Elevator Co., 16 BNA OSHC 1281,

1286 (No. 91-862, 1993). 

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Ryder arguesthat neither of its employees who testified at the hearing, Kaiser and Thompson,

knew Quinn was going to go up on the roof. This assertion is not supported by the evidence

presented during the hearing. At several different points during his testimony, Thompson

acknowledged he knew someone from M. C. Dean was going to go up on the roof:

Q. Did [M. C. Dean] tell you that they were definitely going to go up on the roof?

Thompson: I knew they had to, but I didn’t know when, you know.

(Tr. 151).

Q. Did [M. C. Dean] talk to you about using an aerial lift to work on those fans at

that time?

Thompson: Well, when we talked about doing the electrical on them, we said if they

didn’t work, we had a ladder that we could access the roof if they needed it. And he

said if they had to access the roof, they’d use the airlift.

(Tr. 165-166).

Q. Did you talk to anybody with Ryder in management about that conversation?

Thompson: No.

Q. So you’re the only one that knew about it?

Thompson: Right.

Q. You didn’t tell them about the policy not to go up on the roof?

Thompson: No. We just stated that Ryder employees couldn’t do it. 

Q. Okay. So you just figured that somebody else might do it?

Thompson: Right.

(Tr. 166-167).

Thompson had actual knowledge an M. C. Dean employee was going to go on the roof, but

he did not have actual knowledge the employee would walk within 6 feet of the skylights. The

Secretary equates knowing an M. C. Dean employee was going to go on the roof with actual

knowledge of a violative condition. Accessing the roof, however, is not tantamount to exposure to

the violative condition of unguarded skylights. As White conceded, not all skylights need to be

guarded. Guarding is only required when it is anticipated an employee is going to be exposed to the

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hazard of falling through the skylight. “At that point in time, if there’s any type of activity going on

right around the skylight, then it should be guarded” (Tr. 75, emphasis added).

Thompson testified it was possible to walk on the roof without coming within 6 feet of the

skylights or the edge of the roof. Although the exact dimensions of the roof are lacking in the record,

it is undisputed an employee could walk on the roof while avoiding exposure to fall hazards existing

at the edge of the roof as well as around the skylight. Only two skylights, measuring 3 feet by 10 to

12 feet are mentioned in the record. Thompson testified it was possible to access the exhaust fans

without coming within 6 feet of the skylights or the edge of the roof. 

Undoubtedly, someone should have reminded Quinn that there were skylights in the roof,

and informed him that the skylights were more difficult to see from the roof than from the ground. 

Ryder was required, however, to guard the skylights only when it reasonably anticipated an employee

would be within 6 feet of them. Ryder had neither actual nor constructive knowledge that an

employee would be exposed to the unguarded skylights that were remote from his work area. The

Secretary has failed to establish knowledge of the violative condition. The item is vacated. 

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

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

with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that Item 1 of Citation No. 1, alleging

a serious violation of 29 C. F. R. § 1910.23(a)(4), is vacated, and no penalty is assessed.

 /s/ 

STEPHEN J. SIMKO, JR.

Judge

Date: February 28, 2011

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