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. 13-1034 

EMPIRE ROOFING COMPANY SOUTHEAST, 

LLC,

Respondent. 

ON BRIEFS: 

Erin M. Mohan, Attorney, Office of the Solicitor; Heather R. Phillips, Counsel for Appellate 

Litigation; Ann Rosenthal, Acting Associate Solicitor of Labor for Occupational Safety and 

Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC 

 For the Complainant 

McCord Wilson, Esq.; Rader & Campbell PC, Dallas, TX 

 For the Respondent 

DECISION

Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner. 

BY THE COMMISSION:

The Occupational Safety and Health Administration issued Empire Roofing Company 

Southeast, LLC a one-item serious citation alleging that Empire employees were working from 

an aerial lift without fall protection in violation of 29 C.F.R. § 1926.453(b)(2)(v).

1

 Following a 

hearing, Administrative Law Judge Sharon D. Calhoun issued a decision affirming the citation 

and assessing the $4,900 proposed penalty. 

 

1 Section 1926.453(b)(2)(v) states: “A body belt shall be worn and a lanyard attached to the 

boom or basket when working from an aerial lift.” 
2 

The only issue on review is whether the judge erred in finding that the Secretary 

established that Empire had knowledge of the violative condition.

2

 For the reasons discussed 

below, we find that the Secretary met his burden of establishing knowledge and affirm the 

citation. 

DISCUSSION 

On April 9, 2013, an OSHA compliance officer inspected a worksite in Fort Lauderdale, 

Florida, where Empire was installing metal sheeting on the roof of a commercial building.3 

When the CO arrived at the worksite, Empire’s foreman was standing in the basket of an aerial 

lift, elevated between 16 and 20 feet above the ground, without being tied off to the boom or 

basket. Two other Empire employees were on the roof of the building. After photographing the 

worksite, the CO approached the lift, and the foreman lowered the lift to the parking lot and 

identified himself. The foreman told the CO that he had previously used the aerial lift, and the 

record shows he made two trips in the lift—he transported himself, along with some materials, 

and each of the two Empire employees up to the roof. While safety harnesses were available at 

the worksite, neither the foreman nor the two other Empire employees used safety harnesses 

during transport in the lift. The CO prepared a written statement following his interview of the 

foreman, which the foreman reviewed and signed. In the statement, the foreman stated that he

“did not have a harness on because he was in a hurry and that he was not going to use the aerial 

lift very long and he said it was his fault.”

In finding that the Secretary established Empire’s knowledge of the violative condition, 

the judge relied on Commission precedent holding that a supervisor’s knowledge is imputable to 

the employer. Accordingly, she concluded that the knowledge of Empire’s foreman is properly 

 

2 Empire concedes that the remaining elements of the Secretary’s burden of proving a violation 

have been established. See Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 

1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982) (to establish a violation of an OSHA 

standard, the Secretary must prove: “(1) the cited standard applies; (2) there was a failure to 

comply with the cited standard; (3) employees had access to the violative condition; and (4) the 

cited employer either knew or could have known of the condition with the exercise of reasonable 

diligence.”).

3 Both the worksite and Empire’s principal place of business are in Florida, which is located in 

the Eleventh Circuit. Therefore, the Eleventh Circuit would have jurisdiction over an appeal

filed by either party. See 29 U.S.C. § 660(a), (b). Empire could also seek review in the D.C. 

Circuit. See 29 U.S.C. § 660(a). 
3 

imputed to Empire. See, e.g., Deep S. Crane & Rigging Co., 23 BNA OSHC 2099, 2102 (No. 

09-0240, 2012), aff’d, Deep S. Crane & Rigging Co. v. Harris, 535 F. App’x 386 (5th Cir. 2013) 

(unpublished); Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). The judge 

found that recent Eleventh Circuit precedent, specifically ComTran Grp., Inc. v. U.S. Dep’t of 

Labor, 722 F.3d 1304 (11th Cir. 2013), is not implicated since her analysis does not rest on the 

foreman’s knowledge of his own misconduct but on the foreman’s actual knowledge of the 

violative conduct of his two crew members, which she imputed to Empire.

4

 

On review, Empire acknowledges that ComTran, which involved a supervisor engaged in 

violative conduct while working alone in an unprotected trench, does not directly address the 

factual circumstances here—a supervisor participating in the same violative conduct as that of 

his subordinates. Id. at 1309. Empire argues, however, that the court’s rationale and policy 

considerations outlined in ComTran are nonetheless applicable here. Thus, in Empire’s view, the 

judge erred in relying on Commission precedent to impute its foreman’s knowledge to Empire

because, it contends, the Eleventh Circuit would require the Secretary to show foreseeability. Id.

at 1317. See Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it 

is highly probable that a Commission decision would be appealed to a particular circuit, the 

Commission has generally applied the precedent of that circuit in deciding the case—even 

though it may differ from the Commission’s precedent.”).

We find that pursuant to Commission precedent, the foreman’s knowledge of his 

subordinates’ misconduct is imputed to Empire. In addition, we find, albeit for different reasons 

set out in our concurring opinions below, that Eleventh Circuit precedent—including the court’s 

recent decision in Quinlan v. Sec’y of Labor, 812 F.3d 832 (11th Cir. 2016)—does not require a 

different outcome on this issue. See Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2096 n.4

(No. 10-0359, 2012) (following Commission precedent where not precluded by circuit 

precedent); compare Brooks Well Serv., Inc., 20 BNA OSHC 1286, 1292 (No. 99-0894, 2003) 

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

 

4 The D.C. Circuit, the only other circuit to which this case could be appealed, has not 

specifically addressed this issue. 
4 

Commission’s case law, we apply the law of that circuit . . . .”). Accordingly, we conclude that 

the Secretary has established knowledge and affirm the citation.5

ORDER

 We affirm Serious Citation 1, Item 1, and assess a penalty of $4,900. 

SO ORDERED.

/s/ 

 Cynthia L. Attwood 

 Chairman

 /s/ 

Heather L. MacDougall

Dated: September 29, 2016 Commissioner

 

5 We find no reason to disturb the judge’s serious characterization of the violation or the $4,900 

assessed penalty, neither of which are challenged by the parties. See KS Energy Servs., Inc., 22 

BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (affirming characterization and penalty where 

neither was in dispute).
5 

ATTWOOD, Chairman, concurring: 

The issue before the Commission in this case is whether, as Empire claims, the Eleventh 

Circuit’s ComTran decision requires a different result than that reached by the judge on the issue 

of knowledge. Specifically, Empire claims that the court’s holding in ComTran—requiring 

proof of foreseeability when the Secretary attempts to impute a supervisor’s knowledge of his 

own misconduct—applies not only to a supervisor’s knowledge of his own misconduct, but also 

to a supervisor’s knowledge of a subordinate’s misconduct if the supervisor participated in the 

same misconduct. I find that the Eleventh Circuit’s recent decision in Quinlan v. Sec’y of Labor, 

812 F.3d 832 (11th Cir. 2016), addressed and rejected this very argument. 

In Quinlan, the Eleventh Circuit stated that the case presented “an issue of first 

impression . . . left open by our decision in [ComTran]: Is it appropriate to impute a supervisor’s 

knowledge of a subordinate employee’s violative conduct to his employer under the 

[Occupational Safety and Health] Act when the supervisor himself is simultaneously involved in 

the violative conduct?” Id. at 834-35. Just as in this case, in Quinlan a foreman and a 

subordinate employee were working together without fall protection. The court held that the 

Secretary met his burden of showing employer knowledge of the subordinate’s failure to wear 

fall protection based on the foreman’s knowledge of the subordinate’s violative conduct. Id. at 

839-42. Specifically, the court concluded that “the instant situation is more like the ‘ordinary 

case’ than like the exceptional case addressed in ComTran.” Id. at 842. As such, the court found 

“little or no difference between this case and the classic case in ‘which everyone agrees 

[knowledge] is imputable to the employer.’ ” Id. (quoting ComTran, 722 F.3d at 1317). 

As the Eleventh Circuit has now made clear that ComTran does not cover the factual 

scenario before us in the instant matter, the judge correctly relied on Commission precedent to 

find the Secretary established that the foreman’s knowledge of the cited condition is properly 

imputed to Empire. Accordingly, I agree to affirm the citation. 

/s/ 

Dated: September 29, 2016 Cynthia L. Attwood 

 Chairman
6 

MACDOUGALL, Commissioner, concurring: 

The issue before the Commission in this case involves under what circumstances a 

supervisor’s knowledge can be imputed, absent evidence of foreseeability, in a situation where 

the supervisor’s misconduct creates a violative condition, and in doing so he puts his 

subordinate(s) in concurrent violation of a standard. Empire sought review of the judge’s 

decision contending that she erred in her interpretation of the Eleventh Circuit’s decision in 

ComTran Group., Inc. v. U.S. Department of Labor, 722 F.3d 1304 (11th Cir. 2013), on this 

issue.1

 As I find the facts in this case distinguishable from Eleventh Circuit precedent, I do not 

interpret the court’s precedent as precluding imputation in this case such that the citation alleging 

a violation of 29 C.F.R. § 1926.453(b)(2)(v) must be vacated. Thus, I concur in the decision to 

affirm the citation.

Discussion

Under Commission precedent, the Secretary can establish the knowledge element of his 

burden of proof by imputing a supervisor’s knowledge of the violative condition, including 

knowledge of his or her own misconduct, to the employer.2

 See, e.g., Deep S. Crane & Rigging 

Co., 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012) (noting that under Commission precedent, 

a supervisor’s knowledge of his own misconduct is imputed to the employer), aff’d, Deep S. 

Crane & Rigging Co. v. Harris, 535 F. App’x 386 (5th Cir. 2013) (unpublished); Dover Elevator 

 

1 In general, “[w]here it is highly probable that a Commission decision would be appealed to a 

particular circuit, the Commission has . . . applied the precedent of that circuit in deciding the 

case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted). 

2 While I might be inclined to revisit the Commission’s precedent given that a majority of the 

circuits have held that a supervisor’s knowledge of his or her own misconduct is not 

automatically imputed absent proof from the Secretary that the supervisor’s misconduct was 

foreseeable, I am not presented with that opportunity here. See Pa. Power & Light Co. v. 

OSHRC, 737 F.2d 350 (3d Cir. 1984); Ocean Elec. Corp. v. Sec’y of Labor, 594 F.2d 396 (4th 

Circ. 1979); W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006); Mountain 

States Tel. & Tel. Co. v. OSHRC, 623 F.3d 155 (10th Cir. 1980); ComTran Grp., Inc. v. DOL,

722 F.3d 1304 (11th Cir. 2013) (all decisions requiring that the Secretary meet his prima facie 

burden of putting forth evidence of knowledge independent of the supervisor’s misconduct). See 

also See Joel Yandell, 18 BNA OSHC 1623, 1626 (No. 94-3080, 1999) (“While the Commission 

normally considers itself bound to follow its own precedent, it has not hesitated to overrule that 

precedent when further deliberations have led it to conclude that an earlier case was wrongly 

decided . . . .” (citation omitted)). 
7 

Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (stating that a supervisor’s knowledge of a 

violative condition is imputed to the employer). However, in ComTran, the Eleventh Circuit 

held “the Secretary does not carry [his] burden and establish a prima facie case with respect to 

employer knowledge merely by demonstrating that a supervisor engaged in misconduct.” 

ComTran, 722 F.3d at 1316. The ComTran court did, however, “draw a distinction between a 

supervisor’s knowledge of a subordinate’s misconduct (which everyone agrees is imputable to 

the employer) and knowledge of his own misconduct (which the clear majority of circuits have 

held is not).” Id. at 1316-17 (emphasis added). 

The Eleventh Circuit’s Decision in ComTran

In 2010, ComTran, a communications utilities company, was contracted to relocate some 

existing Department of Transportation utilities that ran along a road in Lawrenceville, Georgia. 

On the first day, ComTran’s supervisor used an excavator to dig a trench that was approximately 

four feet deep. The “spoil pile” was placed at least two feet away from the edge of the trench, 

and the supervisor erected a silt fence between the pile and the trench. On the second day, the 

supervisor entered the trench and began digging around to locate the utilities conduit, but he was 

unsuccessful. At some point, ComTran’s supervisor took down the silt fence to “dig back” to 

locate the utilities. By the time the OSHA compliance officer arrived at the site, the trench was 

no longer compliant—it was six feet deep with a five-foot spoil pile at the edge of the trench, 

creating an eleven-foot wall of earth that was not sloped, benched, or otherwise properly 

protected from a cave-in hazard. Only the supervisor was exposed to the hazard. The Secretary 

issued ComTran two citations for the supervisor’s failure to protect against a potential cave-in. 

After reviewing similar decisions out of the Third, Fourth, Fifth, Sixth, and Tenth 

Circuits,3

 the court held that “ ‘it is reasonable to charge the employer with the supervisor’s 

knowledge actual or constructive of noncomplying conduct of a subordinate’ ” because he acts 

on the employer’s behalf as its agent, but where the Secretary seeks to establish an employer’s 

knowledge based on a supervisor’s knowledge of his own misconduct, he “must do more than 

merely point to the misconduct itself.” ComTran, 722 F.3d at 1317-18 (quoting Mountain States 

Tel. & Tel. Co. v. OSHRC, 623 F.2d 155, 158 (10th Cir. 1980)). According to the ComTran

 

3 As noted above, the Third, Fourth, Fifth, and Tenth Circuits have all issued decisions requiring 

a similar showing when supervisory misconduct is alleged as the basis for proving knowledge. 

See supra fn. 2. 
8 

court, in such situations the employer is left unaware of the supervisor’s misconduct so it “would 

be fundamentally unfair” to impute the supervisor’s knowledge—who “acts as the ‘eyes and 

ears’ of the absent employer”—unless the Secretary met his prima facie burden by putting forth 

evidence independent of the misconduct. Id. at 1317. The court observed that the employer is, 

figuratively speaking, “blind and deaf” when the misconduct is the supervisor’s own. Id. 

Therefore, the court ruled, “[t]o meet [his] prima facie burden, [the Secretary] must put forth 

evidence independent of the misconduct,” such as “evidence of lax safety standards.” Id. at 

1318. 

Thus, the ComTran court held that, absent evidence of foreseeability, it is not fair to 

impute a supervisor’s knowledge of his own misconduct in a situation where the employer’s 

supervisor created the hazard. However, the ComTran decision left open whether a supervisor’s 

knowledge can be imputed, absent evidence of foreseeability, in a situation where the 

supervisor’s misconduct not only creates the hazard, but in doing so he puts his subordinate(s) in 

concurrent violation of a standard.

We are faced with that exact situation in the case before us. Empire argues that the 

court’s decision in ComTran does not hinge upon whether other employees were also engaged in 

the violative conduct, and that the rationale and policy considerations upon which the ComTran

court based its decision equally apply to the facts of this case. According to Empire, when a 

supervisor creates and participates in the violative conduct concurrently with subordinates—just 

as when the supervisor engages in the violative conduct alone—he can no longer be the eyes and 

ears of the company. Empire argues that imputing the supervisor’s knowledge in this situation 

would be as unfair as the one presented in ComTran—in other words, Empire was equally blind 

and deaf as to what occurred in the aerial lift when its foreman rode in the aerial lift without fall 

protection and exposed his subordinates to the hazardous condition he himself created, as the 

company would have been had only the foreman been in the lift. Thus, Empire contends, 

imputing its foreman’s knowledge without evidence of foreseeability—as the ComTran decision 

states—results in relieving the Secretary of his burden to prove knowledge. 

In contrast, the Secretary argues that ComTran is distinguishable. In the Secretary’s 

opinion, the Eleventh Circuit “sought primarily to avoid the unfairness it believed would result 

from collapsing two elements of the Secretary’s prima facie case.” The Secretary contends that 

this is not the case here as he “seeks to establish [knowledge based on] a subordinate’s 
9 

misconduct and a supervisor’s knowledge of it.” Further, the Secretary notes that ComTran does 

not disturb longstanding Commission precedent that, where a violation is caused by the actions 

of a subordinate employee, a supervisor’s knowledge of the subordinate’s misconduct is 

imputable to the employer. 

The Eleventh Circuit’s Decision in Quinlan Enterprises

Following Empire’s petition for review and the completion of briefing before the 

Commission, the Eleventh Circuit for the first time considered in Quinlan Enterprises v. 

Secretary of Labor, 812 F.3d 832 (11th Cir. 2016), the situation where a supervisor and his 

subordinate simultaneously violated an OSHA standard. In Quinlan, the employer was 

contracted to perform steel erection work at a construction worksite in Albany, Georgia. The 

record indicates that one day during this project, the general contractor asked Quinlan’s foreman

to assist with angle bracing. The foreman and a subordinate simultaneously responded to the 

general contractor’s request. While the foreman and employee were assisting the general 

contractor, an OSHA compliance officer inspected the worksite and observed two Quinlan 

employees, one of whom was Quinlan’s foreman on the job, working on the edge of a 15-foot 

high concrete block wall without fall protection. Quinlan was cited for alleged fall protection 

and ladder violations. The judge affirmed these violations, concluding that ComTran only 

applied to scenarios where the supervisor acts alone and not to situations where the supervisor—

like Quinlan’s foreman—has knowledge of misconduct by his subordinate. Quinlan appealed 

the judge’s decision to the Eleventh Circuit. 

The Eleventh Circuit held in Quinlan that the general rule regarding imputation should 

apply—in other words, a supervisor’s knowledge of a subordinate employee’s violative conduct 

should be imputed to the employer. Quinlan, 812 F.3d at 841. The court reasoned that the 

situation in Quinlan was analogous to the ordinary situation, which it described as “the 

supervisor is on the scene looking on, sees the subordinate employee violating a safety rule, 

knows there is such a violation, but nonetheless allows it to continue.” Id. In the opinion of the 

court, the situation in Quinlan—in contrast to ComTran—involved a supervisor and a 

subordinate employee who simultaneously engaged in violative misconduct, which did not 

present a fairness problem. Id. The court reasoned: 

Proof of the subordinate employee’s misconduct does not by itself prove 

employer knowledge of such. The Secretary still bears the burden of proving 

employer knowledge, whether through a supervisor’s actual or constructive 
10 

knowledge of the subordinate employee’s misconduct or through the employer’s 

actual or constructive knowledge of the subordinate employee’s misconduct, for 

example, by failure to implement an adequate safety program. Thus, the 

“fairness” concern which was at issue in the ComTran case is not present in the 

instant situation. 

Id. at 841-42. 

Neither ComTran nor Quinlan Are on All Fours

I find that the facts of this case lie between ComTran and Quinlan. Like ComTran, the 

supervisor in this case was the source of the violative condition—Empire’s foreman entered the 

lift and transported himself and his subordinates to the roof without using fall protection. If not 

for the foreman’s manner of operation of the lift, no violation of the cited standard would have 

occurred.4

 Unlike ComTran, two subordinate employees were involved in the violative 

misconduct. 

Like Quinlan, this case involves a supervisor and subordinates who engaged in the same 

violative misconduct. However, Quinlan’s supervisor and subordinate simultaneously engaged 

in the misconduct. Here, Empire’s foreman did not simply observe a subordinate engaged in 

misconduct and decide to either overlook the violation or pitch-in and work beside the 

subordinate; instead, there is more—he created the violative condition to which he and his 

subordinates were exposed. Thus, this case does not present the ordinary situation described by 

the Quinlan court where the supervisor was “looking on, sees the subordinate employee violating 

a safety rule, knows there is such a violation, but nonetheless allows it to continue.” Id. at 841. 

That Empire’s foreman created the violative condition raises a fairness concern with imputing 

the foreman’s knowledge to Empire that may be considered akin to that discussed in ComTran. 

Whether it is a supervisor acting alone or a supervisor creating a hazardous condition to which he 

exposes both himself and his subordinates, the supervisor has not merely overlooked the 

misconduct of other employees—he has in fact created it. Certainly the “eyes and ears” of an 

employer are greatly impaired whenever its supervisor created the violative condition. 

 

4

 In Salah & Pecci Construction Co., Inc., 6 BNA OSHC 1688, 1689 (No. 15769, 1978), the 

Commission has made clear that “working,” as it applies to the cited standard,

§ 1926.453(b)(2)(v), “includes the act of being transported in an aerial lift to or from a work 

level.” See also Brand Energy Solutions, LLC, 25 BNA OSHC 1386, 1389 (No. 09-1048, 2015) 

(citing Salah with approval). 
11 

In my view, this difference is significant and while I might find this difference dispositive 

to the outcome of this case, it is one that the Quinlan court did not contemplate. Given that there 

is no clear precedent in the Eleventh Circuit upon which Empire can rely to avoid imputing its 

foreman’s knowledge to it and the Commission’s precedent requires imputing the knowledge of 

a supervisor’s own misconduct to his employer, I agree that the Secretary has established Empire 

had actual knowledge of its employees’ violation of the cited standard. Thus, while our 

reasoning differs, I concur with my colleague to affirm the citation. 

 /s/ 

Dated: September 29, 2016 Heather L. MacDougall

 Commissioner
1 

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. 13-1034

Empire Roofing Company Southeast, LLC 

 Respondent.

Appearances: 

Brooke D. Werner McEckron, Esquire, U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

 For the Complainant

McCord Wilson, Esquire, Rader & Campbell., Dallas, Texas 

For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun 

 DECISION AND ORDER

Empire Roofing Company Southeast, LLC, contests a one-item Citation and Notification 

of Penalty issued to it by the Secretary on June 5, 2013. The Secretary issued the Citation and 

Notification of Penalty following an inspection conducted by Occupational Safety and Health 

Administration (OSHA) Compliance Safety and Health Officer (CSHO) Michael Marquez on 

April 9, 2013, at a worksite in Fort Lauderdale, Florida. Item 1 of the Citation alleges a serious 

violation of 29 C.F.R. § 1926.453(b)(2)(v), for permitting employees to work from an aerial lift 

without adequate fall protection. The Secretary proposed a penalty of $4,900.00 for Item 1. 

Empire timely contested the Citation and Notification of Penalty.

A hearing was held in this matter on December 4, 2013, in Fort Lauderdale, Florida. The 

parties stipulate the Commission has jurisdiction over this proceeding under § 10(c) of the 

Occupational Safety and Health Act of 1970 (Act) and that it is an employer covered under § 

3(5) of the Act (Tr. 7). The parties filed post-hearing briefs on February 3, 2014. Empire 

concedes its employees were not tied off while in the aerial lift but contends they were not 

“working from” the lift at the time of the inspection. Empire also asserts it was unaware of the 
2 

alleged violative activity. Prior to the hearing, Empire asserted the affirmative defense of 

unpreventable employee misconduct. Empire withdrew this defense at the beginning of the 

hearing (Tr. 6-7).

For the reasons discussed below, Item 1 of the Citation is AFFIRMED and a penalty of 

$4,900.00 is assessed.

Background 

On April 9, 2013, OSHA CSHO Michael Marquez received a referral from the Code 

Enforcement Office of the City of Fort Lauderdale regarding possible fall hazards at a worksite 

on West Commercial Boulevard in Fort Lauderdale, Florida (Tr. 11, 15, 17). The referral 

dovetailed with OSHA’s Local Emphasis Program in South Florida targeting fall hazards, which 

are the “number one fatality in construction” in that region (Tr. 17). 

CSHO Marquez drove to the referred address, which is the location of a commercial 

building in a strip mall (Tr. 20). The CSHO observed an aerial lift parked in the parking lot next 

to a work truck. Two workers were on the roof of the building. A third worker was in the basket 

of the aerial lift, operating the controls to transport himself to the roof of the building. He was 

not wearing a safety harness and was not tied off to the basket. The CSHO took several 

photographs of the worksite from his vehicle (Exh. C-1; Tr. 17-19). 

CSHO Marquez exited his vehicle and approached the aerial lift to get the operator’s 

attention. The operator lowered himself to the parking lot and identified himself as the Foreman 

for Empire at the site. The CSHO held an opening conference with the Foreman and conducted 

an interview with him. The Foreman informed him that he and his two-man crew were assigned 

to install metal sheeting on the roof of the building. The aerial lift was the means they used to 

transport the materials, equipment, and themselves to the roof and back (Tr. 20, 24-25). 

The CSHO prepared a written statement of the interview, which the Foreman reviewed 

and signed (Tr. 34, 81). The CSHO did not interview the two crew members because they spoke 

Spanish, which the CSHO does not speak (Tr. 25). In his statement, the Foreman said “[h]e did 

not have a harness on because he was in a hurry and that he was not going to use the aerial lift 

very long and he said it was his fault” (Tr. 24). The Foreman also stated he previously had 

transported the two crew members to the roof “and they did not have fall protection on as well 

because they were not going to use it very long” (Tr. 24-25). The OSHA inspection interrupted 
3 

what was to be the Foreman’s third ascent to the roof that day—he had previously taken the two 

crew members up individually (Tr. 69-70). 

CSHO Marquez used a trench rod to measure the height of the roof and found it to be 

approximately 16 feet high. He estimated the aerial lift was elevated to a height of 16 to 20 feet 

when he first observed it. The roof of the building was enclosed by a 42-inch high parapet 

(Exhs. C-1h and C-1i; Tr. 26). Safety harnesses and lanyards were onsite in the work truck 

parked next to the aerial lift (Tr. 58, 69). 

Subsequent to the OSHA inspection, the Foreman’s supervisor issued a warning to the 

Foreman for failing to use fall protection (Tr. 82). Empire issued a written warning to at least 

one of the crew members for failing to use fall protection (Tr. 71-73). 1

The Citation

Item 1: Alleged Serious Violation of § 1926.453(b)(2)(v)

Item 1 of the Citation alleges Empire permitted its employees to work from an aerial lift 

“without wearing a body belt with lanyard attached to the boom or basket.” 

Section 1926.453(b)(2)(v) provides: 

A body belt shall be worn and a lanyard attached to the boom or basket when 

working from an aerial lift.

Elements of the Secretary’s Burden of Proof

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). 

 

1 The Foreman testified his supervisor issued a warning to him, but did not recall whether it was verbal or written. 

He stated, “[W]e get a bonus for following the safety rules and since we didn’t follow the safety rules, we’re not 

getting any bonus” (Tr. 83). One of the crew members also testified at the hearing through an interpreter. He stated 

he received a written warning “from the Company” and that he had signed it (Tr. 71, 73). No evidence was adduced 

regarding whether the second crew member received a verbal or written warning for failing to use fall protection.
4 

(1) Applicability of § 1926.453(b)(2)(v)

Section 1926.450(a), the definition section of Subpart L, provides: “The criteria for 

aerial lifts are set out exclusively in § 1926.453.” It is undisputed Empire’s Foreman was 

operating an aerial lift at the worksite. 

Empire contends § 1926.453(b)(2)(v) does not apply to the cited conditions because the 

standard requires employees to tie off “when working from an aerial lift.” Empire argues its 

employees were not working from the aerial lift, but were only riding in it from the parking lot to 

the roof of the building. Empire states, “The only fair reading of the phrase ‘when working 

from’ is that it applies when an aerial lift is stopped in the air so that employees can perform 

work on a building or structure of some type” (Empire’s brief, p. 9).

This very argument was made 36 years ago by the employer in Salah & Pecci 

Construction Company, Inc., 6 BNA OSHC 1688 (No. 15769, 1978). (At that time, the 

subsection of the aerial lift standard cited here as § 1926.453(b)(2)(v) was found at § 

1926.556(b)(2)(v). The language of that subsection is identical to that of the current § 

1926.453(b)(2)(v)). In Salah, the Massachusetts Port Authority hired Salah & Pecci to inspect 

the structural condition of the Tobin Memorial Bridge in Boston, Massachusetts. Salah & Pecci 

used a crane to which a basket was affixed to raise employees to the structural area under 

inspection. An employee named John Gulla was in the basket when the crane operator began 

lowering the basket. 

As the operator began lowering the basket, however, one of the telescopic boom 

sections unexpectedly fell several feet as a result of a malfunction of an internal, 

unexposed section of the boom. Gulla fell from the basket to the ground and later 

died. At the time of the accident Gulla was wearing a safety belt and lanyard but 

was not tied off to the basket or boom of the crane. 

Id.

The Commission in that case confronted the same issue now before the undersigned: 

“The issue in this case is whether an employee who is being lowered in an aerial lift is ‘working’ 

with the meaning of the standard at 29 C.F.R. 1926.556(b)(2)(v), and thus must wear a safety 

belt and lanyard tied off the boom or basket.” Id. The ALJ found that the standard did not apply 

while an employee is being lifted to or lowered from the work position. The Commission 

reversed, holding that “working” within the meaning of the cited standard “includes the act of 

being transported in an aerial lift to or from a work level.” Id. at 1689. The Commission 

determined this broad interpretation of “working” promotes the purpose and policy of the Act: 
5 

“We note that the standard’s purpose of protecting employees from the hazard of a fall from an 

aerial lift would be hindered by a narrow reading of the standard.” Id. at 1690. 

In its post-hearing brief, Empire asks the undersigned to ignore Salah, which it refers to 

as “one older Review Commission case that briefly addressed this issue” (Empire’s brief, p. 10). 

Empire argues “the Salah opinion is not persuasive authority” (Empire’s brief, p.11). Empire is 

incorrect. The sole issue in Salah is whether an employee is “working from” an aerial lift basket 

when he or she is being transported in the basket, and thus must tie off to the boom or basket. 

Salah is directly on point and remains Commission precedent. The fact it that is an older case 

does not negate or diminish its precedential value. Salah has not been overruled. “Judicial 

decisions, however, are not spoilable like milk. They do not have an expiration date and go bad 

merely with passage of time.” Comtran Group, Inc. v. DOL, 722 F.3d 1304, 1314 (11th Cir. 

2013). 

Based on the Commission precedent set forth in Salah, it is determined that an employee 

is “working from an aerial lift” when the employee is using the aerial lift as a means of 

transportation on the worksite. Section 1926.453(b)(2)(v) applies to the activity cited in the 

instant case.

(2) Failure to Comply with the Terms of the Standard 

The cited standard requires that “[a] body belt must be worn and a lanyard attached to the 

boom or basket when working from an aerial lift.” It is undisputed that the Foreman and the two 

crew members were not tied off to the basket or the boom when they were being transported in

the aerial lift. The CSHO observed the Foreman in the basket without fall protection and 

photographed him in the act (Exh. C-1; Tr. 20). The Foreman admitted as much to the CSHO in 

his written statement and at the hearing. He also admitted that neither of the two crew members 

was using fall protection when he transported them in the basket of the aerial lift (Tr. 24-25, 81-

82). The crew member who testified at the hearing acknowledged that neither he nor his coworkers used fall protection while in the aerial lift that day (Tr. 68-69). 

The Secretary has established Empire failed to comply with the terms of § 

1926.453(b)(2)(v). 

(3) Access to the Violative Condition

It is undisputed that each of Empire’s employees on the site was elevated at a height of 

16 to 20 feet in the basket of the aerial lift without being tied off. The Foreman told CSHO 
6 

Marquez “that if he were to fall from the aerial lift at approximately 20 feet that he would have 

multiple broken bones” (Tr. 25). 

The CSHO testified employees are required to tie off while in the basket because an 

equipment malfunction (such as the one that occurred in Salah) could cause them to be ejected 

“or traffic could also strike the piece of equipment that would cause them to bounce out” (Tr. 

28). In Jesco, Inc., 24 BNA OSHC 1076 (No. 10-0265, 2013), a crane operator inadvertently 

swung the boom of the crane into an aerial lift which almost caused the lift to tip over. Here, 

Empire’s aerial lift was parked in an open public parking lot, into which anyone could drive a 

vehicle (Exh. C-1). Empire had placed a single orange cone next to a portable toilet. The 

entrance to the parking lot was unobstructed (Tr. 22). 

 Empire argues the Secretary failed to establish its employees had access to a fall hazard 

because the basket of the aerial lift was equipped with standard guardrails. Empire states, “There 

is no credible evidence on the record before this court that anything more than guardrails that 

were in place on the lift were necessary” (Empire’s brief, p. 16). Empire is essentially arguing 

that the Secretary did not establish that a hazard existed despite its employees’ failure to tie off to 

the basket. This position is contrary to Commission precedent: 

Under Commission and judicial precedent . . . the Secretary bears no burden of 

proving that failure to comply with such a specific standard creates a hazard. E.g., 

Bunge Corp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir.1981) (“[unless the 

general standard incorporates a hazard as a violative element, the proscribed 

condition or practice is all that the Secretary must show; hazard is presumed and 

is relevant only to whether the violation constitutes a ‘serious' one”); Pyramid 

Masonry Constr., 16 BNA OSHC 1461, 1464, 1993 CCH OSHD ¶ 30,255, p. 

41,674 (No. 91–600, 1993) (if standard presumes that hazard exists when its 

terms are not met, Secretary need not prove existence of hazard).

Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1523 (No. 90-2866, 1993). 

Here, § 1926.453(b)(2)(v) requires employees to tie off “when working from an aerial 

lift.” It presumes that a hazard exists if employees are not tied off when working from an aerial 

lift. The Secretary need only show employees had access to the violative condition. He has

done so in this case. The employees were not tied off while in the aerial lift basket elevated to a 

height of 16 to 20 feet. A fall from that height would likely result in serious physical injuries, 

including broken bones. 
7 

(4) Knowledge 

The Secretary must establish that the employer either knew or could have known with the 

exercise of reasonable diligence of the violative condition. This case arises in the Eleventh 

Circuit. The Court of Appeals for the Eleventh Circuit recently issued the Comtran decision, 

which holds that where a violation is caused solely by the actions of a supervisor, the Secretary 

does not satisfy his burden of establishing employer knowledge by imputing the supervisor’s 

knowledge of his or her own actions to the employer. In so holding, the 11th Circuit joined the 

3rd, 4th, 5th, and 10th Circuits in holding that in order to impute the rogue conduct of a 

supervisor to the employer, the Secretary must present evidence that the supervisor’s actions 

were foreseeable, for example, where the Secretary demonstrates that the employer had improper 

training or lax safety standards. Comtran, 722 F.3d at 1316, 1318. 

The Circuit Court’s holding does not disturb precedent holding that where a violation is 

caused by the actions of a subordinate employee and the supervisor knew or should have known 

of the violation, the supervisor’s actual or constructive knowledge is imputed to the employer. 

Dun-Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986). A supervisor’s 

knowledge of a subordinate’s misconduct is imputable to the employer. Comtran, 722 F.3d at 

1317. 

In this case, the Foreman had actual knowledge of the violative conduct of his two crew 

members. Each crew member rode up in the basket of the aerial lift with him during two 

separate trips from the parking lot to the roof. Empire had a work rule requiring employees to tie 

off when in an aerial lift basket. The Foreman was aware of the rule and admitted violating it. 

Empire disciplined the Foreman for the violation. The Foreman admitted to the CSHO and at the 

hearing that he had actual knowledge of his crew’s violative actions. The Foreman’s actual 

knowledge of the crew members’ failure to tie off is imputed to Empire. 

The Secretary has established a violation of § 1926.453(b)(2)(v). Under § 17(k) of the 

Act, a serious violation exists if there is a “substantial probability that death or serious physical 

harm could result” from the violation. A fall from 16 to 20 feet onto the parking lot surface 

would likely result in serious physical harm. The violation is properly classified as serious. 

Penalty Determination 

The Commission is the final arbiter of penalties in all contested cases. “In assessing 

penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give 
8 

due consideration to the gravity of the violation and the employer’s size, history of violation, and 

good faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). 

“Gravity is a principal factor in a penalty determination and is based on the number of employees 

exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” 

Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

The record does not reflect the number of employees employed by Empire, but the CSHO 

testified the company received a reduction in the proposed penalty due to its small size. OSHA 

had not inspected Empire in the five years prior to the instant inspection (Tr. 45-46). There is no 

evidence of lack of good faith on Empire’s part. 

The gravity of the violation is moderate. Three employees were exposed to the fall 

hazard. Their exposure was of short duration. It is determined that the proposed penalty of 

$4,900.00 is appropriate for Item 1. 

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 hereby ORDERED that Item 1 of the Citation, 

alleging a serious violation of § 1926.453(b)(2)(v), is AFFIRMED and a penalty of $4,900.00 is 

assessed.

 ___/s/ Judge Sharon D. Calhoun________ 

 JUDGE SHARON D. CALHOUN