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. 17-2202 

OUTFRONT MEDIA, INC.,

Respondent. 

APPEARANCES:

 For the Complainant: 

 R. Peter Nessen, Esq.

 Senior Trial Attorney

 U.S. Department of Labor 

 Boston, Massachusetts

 For the Respondent: 

 Richard J. Antonelli, Esq. 

 Brian D. Lipkin, Esq. 

 Babst, Calland, Clements and Zomnir, P.C. 

 Pittsburgh, Pennsylvania

BEFORE: William S. Coleman

 Administrative Law Judge 

The Respondent, Outfront Media, Inc. (Outfront), is a corporation in the business of 

outdoor advertising. One of the thousands of billboards that Outfront owns and maintains 

nationwide is located on N. Main Street in Waterbury, Connecticut. On October 5, 2017, a 

compliance safety and health officer (CO) from the Occupational Safety and Health 

Administration (OSHA) observed Outfront employees working on that billboard while more than 

four feet above ground level without any means or method of fall protection. (T. 24). An OSHA 
2 

inspection and investigation ensued that resulted in OSHA issuing to Outfront a serious citation

(Citation) that alleged three grouped violations (designated citation items 1a, 1b & 1c) and that 

proposed a penalty of $12,675. 

Item 1a alleges a violation of 29 C.F.R. § 1910.28(b)(1)(i) for failing to ensure that 

employees repairing the billboard on October 5, 2017 “were protected from the hazard of falling 

more than four feet to the ground” by using appropriate means or methods of fall protection. 

Item 1b alleges a violation of 29 C.F.R. § 1910.30(a)(3)(i) for failing to ensure that 

employees repairing billboards “were trained in fall hazards and how to avoid such hazards.” 

Item 1c alleges a violation of 29 C.F.R. § 1910.132(d)(1) for failing to “ensure that a 

Workplace Hazard Assessment in ‘tasks and sites’ specifics was conducted to determine necessary 

and appropriate types of personal protective equipment (PPE) for the employees” who would be

repairing the billboard on October 5, 2017. 

Outfront timely contested the Citation and proposed penalty and thereby brought the matter 

before the independent Occupational Safety and Health Review Commission (Commission) 

pursuant to section 10(c) of the Occupational Safety and Health Act (Act). 29 U.S.C. § 659(c). 

The Commission docketed the matter on December 21, 2017. The Secretary of Labor (Secretary)

thereafter filed his formal complaint that re-alleged the allegations and proposed penalty set forth 

in the Citation. The Commission’s Chief Judge assigned the matter to the undersigned for hearing 

and decision. The hearing was conducted in Hartford, Connecticut, on November 8–9, 2018. Posthearing briefing was completed on May 10, 2019. 

The principal issues for decision are as follows:

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

Outfront failed to exercise reasonable diligence to discover the fall 

protection violations? (Item 1a; 29 C.F.R. § 1910.28(b)(1)(i)). 
3 

Decision: No. The Secretary did not prove Outfront had 

constructive knowledge of the violative conduct. 

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

reasonably prudent employer in Outfront’s circumstances would have 

provided different training than Outfront provided on the nature of fall 

hazards in the work area and how to recognize them? (Item 1b; 29 

C.F.R. § 1910.30(a)(3)(i)).

Decision: No. The evidence is insufficient to establish that a 

reasonably prudent employer would have provided different 

training.

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

Outfront failed to assess the Waterbury billboard to determine whether 

hazards were present, or likely to be present, that would necessitate the 

use of fall protection equipment and other PPE? (Item 1c; 29 C.F.R. 

§ 1910.132(d)(1)).

Decision: No. Outfront conducted a hazard assessment that met 

the requirements of the cited standard.

Because the Secretary did not meet his burden of proof on these issues, all three citation 

items must be vacated. 

FINDINGS OF FACT

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

1. Outfront is a corporation that constructs, installs, and maintains billboards for the 

display of advertising along roads and highways. (T. 101-102, 155-57, 287). Outfront employs 

approximately 2,000 workers in approximately 35 markets nationwide. (Answer, ¶ 2; T. 163, 263, 

270). Outfront is an employer and is engaged in a business affecting interstate commerce. 

(Answer, ¶ 3). 

2. The operations office for Outfront’s designated “Hartford/New Haven” Connecticut 

market is in North Haven, Connecticut, and is staffed by approximately nine employees. (T. 163; 

Ex. R-5). The North Haven office is responsible for about 1,000 billboard displays in its market 

area. (T. 230-31). 
4 

3. Outfront maintains two basic types of billboards: “bulletin” billboards and “poster” 

billboards. Bulletin billboards are generally higher above ground level than poster billboards. (T. 

233-34). The display area of bulletin billboards is generally 14x48 feet, while the display area of 

the poster billboards is generally 10x22 feet. (T. 220-21). All the bulletin billboards in Outfront’s 

Hartford/New Haven market have integrated engineered anchor points or cable-based horizontal 

and vertical lifeline systems, either as part of their original construction or by subsequent 

modification. (T. 171, 221, 233-34, 362-63). Outfront is in the process of retrofitting the poster 

billboards in the Hartford/New Haven market with integrated engineered anchorage points or 

cable-based engineered lifeline systems, but some of the poster billboards in that market have not 

yet been retrofitted with such engineered systems. (T. 38, 101-102, 220-221, 277-80, 233-34, 362-

63). 

4. A small proportion of the bulletin billboards in the Hartford/New Haven market have 

what are sometimes described as “passive” fall protection systems, which are systems integrated 

into the structure of the billboard that require no additional fall protection equipment to be donned 

by a worker. (T. 212-213, 264, 392-94, 418-19). 

5. Despite the differences between the bulletin billboards and poster billboards, work

performed on either type involves similar hazards. (T. 63-64, 145, 241-243, 273, 355-56, 363). 

Work on both bulletin billboards and poster billboards is generally performed well above ground

level and thus gives rise to fall hazards. (T. 145, 243, 273, 355, 363). 

Fall Protection Training

6. Outfront provides all employees who work on its billboards fall protection training. (T. 

124, 157-58, 239, 287, 373-74). All employees receive the same training, regardless of whether a 
5 

particular employee works predominately on poster billboards or bulletin billboards. (T. 124-25, 

164).

7. As part of this training, employees are instructed on Outfront’s “Personal Protective 

Equipment & Fall Protection Policy” (Policy). Upon successful completion of training, each 

employee reviews a one-page document that sets forth the Policy and upon signing the document 

expressly certifies the following: “MY SIGNATURE BELOW CERTIFIES THAT I 

UNDERSTAND AND WILL COMPLY WITH [OUTFRONT’S] POLICY AS STATED.” (T. 

114, 182, 293; Ex. R-9). The Policy states in relevant part: 

In any situation where an employee is exposed to a potential fall hazard 

of greater than four (4) feet for general industry activities ... fall protection 

equipment shall be used to limit all free fall hazards to six (6) feet or less in 

accordance with applicable OSHA requirements, OUTFRONT safety rules, 

and jobsite conditions. All employees performing services on sign structures 

MUST wear a full body harness with shock-absorbing lanyards and double pelican 

hooks, and/or a self-retracting lifeline as necessary or required, provided by 

management. Management’s intent is for each employee to be tied off 100 % while 

working on the billboard. Employees MUST BE AT ALL TIMES attached to 

permanent safety cables or other appropriate anchorages while working on 

[Outfront’s] sign structures. If permanent safety cables are not in place, alternative 

fall protection equipment and methods MUST be used. 

(Ex. R-9 (emphases in original)).

 

8. The Policy further states as follows:

Any employee who observes or suspects an unsafe condition is obligated to 

terminate any further activity on the jobsite, and immediately report the condition 

to the [Outfront] Operations Manager who will immediately RED TAG that jobsite 

as out-of-service until such time that proper repairs and/or corrections can be made 

to ensure a safe and healthy workplace. 

(Id. (emphasis in original)).
6 

9. Each of the employees that the CO observed on the Waterbury billboard on October 5, 

2017 had undergone Outfront’s fall protection training, and each had certified in writing that he

understood and would comply with the Policy. (Ex. R-9). 

10. Outfront issues to each employee fall protection PPE for use on both bulletin 

billboards and poster billboards. The PPE provided includes a full body harness, connectors, 

lanyards, and tie-off adapters. (T. 125-26, 172-76, 244, 313, 365-66; Exs. C-10, R-4 & R-9). 

Employees travel to their job locations with their provided fall protection PPE. (T. 27, 49, 87, 

180-81, 217, 230). Outfront provides appropriate training to its employees on how to identify, 

inspect, maintain, and wear all provided fall protection PPE. (Stipulation at T. 176). 

11. As part of initial fall protection training for new employees, Outfront provides each 

employee a copy of its “Fall Protection Training Manual” (Manual). (T. 36, 132, 181, 239, 292, 

375-76; Ex. C-20). 

12. The Manual provides general information about the fall hazards associated with 

elevated work. (Ex. C-20, p. 11). The Manual emphasizes that fall hazards are “one of the most 

common workplace hazards” and “one of the highest causes of death in the workplace.” (Id.). The 

Manual further informs that “complacency,” “horseplay,” and lack of housekeeping at a worksite 

can contribute to creating a fall hazard. (Id., p. 19).

13. The Manual also provides information and instructions regarding the use and 

maintenance of the following: 

a. three types of fall protection systems – fall restraint, work positioning, and fall arrest 

(Ex. C-20, pp. 23-25); 

b. two types of anchors – certified and improvised (Ex. C-20, pp. 29-33); 
7 

c. connectors (snap hooks, carabiners,1 lanyards, and shock absorbers) (Ex. C-20, pp. 

39-47); 

d. body holding devices (harnesses) (Ex. C-20, pp. 51-56); 

e. lifelines (vertical, horizontal, and self-retracting) (Ex. C-20, pp. 61-69); 

f. ladders and other climbing systems (Ex. C-20, pp. 73-78); and

g. information on the calculation of fall distances. (Ex. C-20, pp. 80-81). 

14. Outfront provides new employees initial fall protection training in a group setting. 

(T. 109-110, 124, 162-63, 184-86, 283-84; Exs. R-4 & R-8). 

15. The Operations Manager at Outfront’s North Haven office is Mr. Richard Bourne, 

and he is responsible for conducting fall protection training for the employees of that office. (T. 

110, 158, 245). 

16. The fall protection training that Mr. Bourne conducts at the North Haven office 

consists of the following: 

a. Giving a “pre-test” to assess trainee competency prior to training. (T. 164-65, 288, 

296; Ex. R-13);

b. Showing fall protection videos. (T. 58, 184, 239, 288, 296, 374); 

c. Making a PowerPoint presentation titled “The ABCDs of Fall Protection.” (T. 139-

40, 165-68, 360; Ex. C-21); 

d. Giving a post-test to determine post-training competency. (T. 186, 288, 291-92, 296; 

Ex. R-13); 

e. Demonstrating how to use PPE with the use of a “prop kit.” (T. 174, 244); and 

1 See 29 C.F.R. § 1910.140(b) (defining “carabiner”); see also Ex. C-20, p. 42.
8 

f. Providing practical instruction in fall protection and fall rescue on an actual billboard. 

(T. 158, 296). 

17. The PowerPoint presentation addresses the following subjects: 

a. Three types of anchor points: (1) improvised anchors, which must be capable of 

supporting 5,000 pounds as determined by a competent person; (2) certified anchor 

points, which must be rated at 3,600 pounds by a qualified person such as an engineer; 

and (3) engineered systems. (Ex. C-21, pp. 3-4). 

b. A description of the “truck test,” which pertains to identifying improvised anchors, as 

is described in ¶ 19, infra. (Id., p. 3). 

c. Examples of “bad” anchor points such as platforms, platform supports, and wooden 

stringers. (Id., pp. 4-5). 

d. Examples of “good” anchor points such as engineered lifelines, engineered anchor 

points, and “significant structural components” like “vertical foundation beams” or 

“horizontal cross-members.” (Id., p. 5). 

e. Examples of anchor adapters. (Id., p. 6).

f. The use of a rated ladder or a portable horizontal lifeline kit as an “alternative anchor 

point.” (Id., pp. 6-7). 

g. The use and inspection of body harnesses. (Id., pp. 7-9). 

h. The use and inspection of connectors, including examples of “good” and “bad” 

connectors. (Id., pp. 10-12). 

i. The use and inspection of lanyards. (Id., pp. 12-13).

j. Instructions on the “threshold level” of fall distance when employees “must start to tie 

off.” (Id., p. 12). 
9 

k. Instructions on how to calculate a fall distance. (Id., pp. 13-14).

l. The use and inspection of self-retracting lifelines. (Id., p. 14-15). 

18. Mr. Bourne presents the PowerPoint “slide by slide,” explaining the content of each 

slide, and invites questions. (T. 166, 283-84).

19. During the presentation, Mr. Bourne explains that an improvised anchor point must 

be rated to support 5,000 pounds. (T. 168). Because “nobody knows what it weighs to pick up 

5,000 pounds,” Mr. Bourne instructs his employees on a commonly used rule of thumb that is 

known as the “truck test.” (T. 168; Ex. R-7, pp. 7-8). The “truck test” entails a competent person 

assessing whether a potential anchor point could support the weight of a full-sized pickup truck

such as a Ford F-150. (T. 168, 383-84). A potential anchor point would be deemed unsuitable for 

use as an improvised anchor point if it were assessed to be incapable of supporting such a load. 

(T. 168). 

20. Mr. Bourne also discusses unsuitable (“bad”) anchor points with his employees, such 

as railings, wood members, or platforms. (T. 169-70).

21. Throughout the course of training, Mr. Bourne emphasizes Outfront’s requirement 

that employees always use fall protection when working at height. Outfront nominally refers to

this as its “100% tie-off” policy, which is described in more detail in ¶¶ 38-40, infra. (T. 210-11, 

297-98).

22. Outfront has a company-wide policy to provide employees “refresher training” in fall 

protection once a year, but Mr. Bourne’s practice in the North Haven office has been to conduct 

that refresher training twice a year. (T. 124, 158, 296; Ex. R-4). The semi-annual refresher training 

is substantially similar to the initial fall protection training. (T. 124, 158, 296; Ex. R-4).
10 

23. Outfront’s fall protection training addresses the nature and recognition of fall hazards 

associated with working on any Outfront billboard. 

24. Outfront’s fall protection training addresses the identification of suitable anchor points 

and the PPE necessary to provide fall protection while working on any Outfront billboard, 

including training to refrain from working on a billboard that lacks suitable anchorages or 

alternative means of providing required fall protection. 

25. Outfront’s fall protection training addresses fall hazards associated with both bulletin

billboards and poster billboards. (T. 124-25, 164, 168).

26. All Outfront’s employees, including all the employees whose conduct on October 5, 

2017 resulted in the Citation being issued, have received the fall protection training described 

above. (T. 124-25, 131, 160-62, 164, 185, 287-89; Ex. R-8). 

27. Each of the four employees who the CO observed working on the Waterbury billboard 

on October 5, 2017 understood the nature of fall hazards associated with working on billboards. 

Each of those employees possessed the knowledge, training, and experience both (a) to recognize 

when the construction, configuration, and condition of any Outfront billboard required the use of 

fall protection PPE, and (b) to refrain from working at height on a billboard that lacked suitable 

anchorages or alternative means of providing required fall protection. 

Workplace Hazard Assessments 

General Hazard Assessments 

28. In 2007, Outfront’s Vice President of Environmental Health and Safety, Robert 

Chesonis, who is based in Fairfield, New Jersey, conducted a general assessment of the hazards 

associated with working on Outfront’s billboards nationwide. (T. 240-45). In conducting his 

assessment, Mr. Chesonis traveled to multiple markets around the country, spoke with fall 
11 

protection consultants, observed workers in the field, and interviewed workers and managers. (T. 

240-41). 

29. As a result of that 2007 general hazard assessment, Mr. Chesonis updated Outfront’s 

fall protection training program, including the training manual and PowerPoint presentation used 

in training. (T. 243-44). Mr. Chesonis also developed a “prop kit,” which contained the fall 

protection PPE that Outfront provides employees, for demonstrative use in formal training. (T. 

244). 

30. Based on the 2007 hazard assessment, Mr. Chesonis reasonably concluded that the 

PPE supplied to its crews for work on billboards was “generally appropriate for the various 

applications for the poster [billboards].” (T. 243). 

31. In 2016, Mr. Chesonis performed another general assessment of the hazards associated 

with working on Outfront’s billboards nationwide. (T. 245-47). As a result of that 2016 effort, 

Mr. Chesonis “slightly updated” Outfront’s fall protection training for conformance with OSHA’s 

new safety standard pertaining to walking-working surfaces, which was published as a final rule 

in November 2016. (T. 247-48).

32. While conducting these general hazard assessments, Mr. Chesonis observed workers 

working on bulletin billboards and poster billboards. (T. 242, 246, 271-73). Mr. Chesonis 

reasonably determined that the hazards associated with the two types of billboards were similar

and that fall hazards existed with respect to both. (T. 243, 246, 271-73). As part of his assessments, 

Mr. Chesonis evaluated whether the fall protection PPE that Outfront provided to its employees 

was sufficient, and he reasonably concluded that it was. (T. 243, 247). 

33. In addition to the “formal” assessments performed in 2007 and 2016, Mr. Chesonis

monitors developments pertaining to fall hazard protection for billboards, such as regulatory 
12 

changes like the OSHA general industry standard pertaining to walking-working surfaces that was 

promulgated in November 2016. (T. 247-48). 

Site-specific Hazard Assessments 

34. Outfront does not ordinarily send a manager to conduct a site-specific hazard 

assessment of a particular billboard before a crew begins work on that billboard. (T. 219, 263-64). 

Rather, Outfront requires the assigned crew to assess a specific billboard and determine, before 

any worker ascends the billboard, whether the required work can be performed in conformance 

with Outfront policies. (T. 171, 232, 263-64, 281, 401; Ex. R-17, pp. 4 & 11).

35. Every billboard has unique characteristics, such as the presence or absence of certified 

anchor points, that bear on what fall protection PPE to use. (T. 171, 217, 401). Billboards that 

lack certified anchor points may or may not have points that are suitable for use as improvised 

anchor points. (T. 217). Employees are required to assess such billboards and identify any suitable

improvised anchor points before ascending such a billboard. (T. 151-52, 171-72, 410). 

36. If an employee determines that PPE other than what has been taken to the worksite is 

necessary to provide required fall protection, that PPE is provided before any employee ascends 

the billboard. (T. 180-81, 217, 317). 

37. Employees must refrain from performing assigned work when the work cannot be 

performed in compliance with Outfront policies. (T. 117-119, 183-84, 217, 227-28; Ex. R-9). So, 

in circumstances in which a billboard has no certified or appropriate improvised anchor points, 

and no other means or methods of fall protection are available to perform the assigned work, 

employees must not perform any work at height. (T. 126-27, 151-52, 183-84, 217). 
13 

Reasonable Diligence in Discovering Fall Protection Violations 

Outfront’s Fall Protection Policies

38. Outfront requires employees to utilize fall protection at all times while working at 

heights of four feet or more. Compliance with this requirement almost always entails an employee 

wearing and using fall protection PPE to “tie off” to an appropriate anchorage. (T. 126, 171, 183-

84, 213, 264-66, 297-98, 419; Exs. R-4 & R-9). Employees are instructed not to ascend a billboard 

if it has no suitable anchorages, and if no alternative means of fall protection is available. (T. 126-

27, 183-84; Exs. R-4, R-9, C-21 at p. 5). 

39. Outfront refers to this policy with the vernacular term “100% tie-off” policy. (T. 126, 

183-84, 264-66, 297-98). That vernacular term is a misnomer, because employees are not required 

to “tie-off” when there is available some other appropriate method or means of fall protection that 

does not involve actually “tying off” with fall protection PPE. (T. 213-15, 264). 

40. Outfront’s fall protection training orients employees to so-called “passive” fall 

protection systems, such as guardrail systems, even though very few of Outfront’s billboards are 

constructed with engineered “passive” systems.

2

 (T. 149, 212-213, 264, 310, 418-19). 

41. Outfront’s nominal “100% tie-off” policy is embodied in the Policy described in ¶¶ 7 

& 8, supra. The final sentence of the block quote in ¶ 7 contemplates that employees are not 

required to tie off where all the required work can be accomplished while using an existing

“passive” fall protection system. (T. 149). Nevertheless, the Policy does not prohibit an employee 

2 The term “guardrail system” is defined in section 1910.21(b) and the requirements for 

such systems are set forth in section 1910.29(b). See also Walking-Working Surfaces and Personal 

Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494, 82649 (Nov. 18, 2016) (to 

be codified at 29 C.F.R. pt. 1910), (describing guardrails as “passive fall protection devices”). The 

term “passive” fall protection connotes measures that “require[] no additional fall protection 

equipment to be donned by the worker.” (T. 392-393). In contrast, “active” fall protection 

“requires the climber to do something to attach and utilize the [fall protection] system.” (T. 394).
14 

from taking a “belt and suspenders” approach to fall protection by both tying off to appropriate 

anchorages while also taking advantage of any “passive” fall protection features engineered into 

the billboard. (E.g., T. 310). 

42. All Outfront employees who work at height, including the employees the CO observed 

working on the Waterbury billboard on October 5, 2017, review and sign the Policy in which the 

nominal “100% tie-off” policy is described. (Ex. R-9). Outfront’s fall protection training entails 

review of the Policy. (T. 210-11, 266, 297-98). At Outfront’s North Haven office, Mr. Bourne

also frequently reinforces this training by reminding employees of the “100% tie-off” rule before 

they depart for their worksites. (T. 158-59, 297-98). 

43. Mr. Bourne orients employees at the North Haven office, including the employees that 

the CO observed on October 5, 2017, to “passive” fall protection systems, and communicates that 

such systems are not prevalent on Outdoor’s billboards. (T. 110-11, 213-14; Ex. C-20, p. 23). The 

vast majority of the training relates to personal fall protection systems3 that by their nature entail 

the wear and use of fall protection PPE. (Ex. C-21). 

44. Any Outfront employee who successfully completes fall protection training

understands the import of Outfront’s fall protection rule and Outfront’s “100% tie-off” policy. 

45. Outfront had a work rule in place to address fall hazards. 

46. Outfront adequately communicated its work rule to its employees. Outfront’s 

employees had the knowledge, training, and experience (a) to recognize circumstances to which 

the work rule applied, and (b) to identify the means or methods required to comply with the work 

rule under those circumstances.

3 The term “personal fall protection system” is defined in section 1910.21(b).
15 

Progressive Discipline for Fall Protection Violations

47. Outfront’s fall protection Policy contains a progressive disciplinary protocol that is

applicable to violations of the Policy. Under that protocol, the sanction for an employee’s first 

violation is a five-day suspension, and the sanction for a second violation is termination of 

employment. (T. 54, 120, 253, 293, 367-68; Ex. R-9). Comparing Outfront’s progressive 

discipline protocol to the protocols of two other major companies in the outdoor advertising 

industry, one is stricter and the other is more lenient. (T. 368-73). 

48. Outfront consistently and uniformly applies the Policy’s progressive discipline 

protocol whenever it determines that an employee has violated the policy. (T. 103-06, 111-12, 

127-28, 191-93, 199-200, 207-08, 252-53, 257-62, 304; Exs. R-3, R-4, & R-12). Outfront 

effectively enforces its work rule regarding fall protection. 

Random, Unannounced Worksite Observations

49. Outfront managers are required to conduct unannounced worksite observations of 

employees in the field for compliance with company safety policies at least four times a month. 

(T. 187-88). The operations manager for each office is generally responsible for conducting the 

field observations, and at least once monthly the general manager of each office (who is the 

immediate supervisor of the operations manager) is required to accompany the operations manager

on those field observations. (T. 188). 

50. Worksites are randomly selected for field observations, and typically more than a 

single worksite is observed on days when field observations are conducted. (T. 188, 228-30; Ex. 

R-5).

51. Mr. Bourne, as Operations Manager of the North Haven office, conducts field 

observations at least four times a month. (T. 187-188). Following each field observation, Mr. 

Bourne documents the observation by completing a “Field Observation Survey” form, which 
16 

identifies the location of the billboard, the identity of the employees observed, and states whether 

the employees were wearing PPE and complying with safety procedures. (T. 188-89; Ex. R-5). 

52. Between January 21, 2014 and November 29, 2017,

4 Mr. Bourne or other staff5 in 

Outfront’s North Haven office conducted field observations of more than 230 worksites and 

completed a Field Observation Survey for each. (Ex. R-5). 

53. In conducting field observations from 2014 through 2017, Mr. Bourne observed one 

or more of the four workers who the CO had observed on October 5, 2017 on approximately 90 

different occasions, including some observations at worksites involving poster type billboards. (T. 

192-94; Ex. R-5, Bates pp. 254 & 319). Every time the four workers were observed, they were 

properly utilizing PPE for fall protection. (T. 192-94; Ex. R-5).

54. Whenever any Outfront employee, whether based in the North Haven office or 

elsewhere, is discovered in the course of a field observation to be violating Outfront’s fall 

protection policy, Outfront imposes progressive discipline in accordance with its Policy. (T. 190-

92, 252-53; Ex. R-5, Bates p. 178; Ex. R-12). 

55. Outfront exercised reasonable diligence by conducting regular and random field 

observations of its work crews as a means of (a) supervising employees, (b) taking measures to 

prevent violations from occurring, and (c) discovering violations that do occur. 

4 These are the inclusive dates of the Field Observation Surveys presented in evidence. 

(Ex. R-5, Bates pp. 196 & 376). Many of the survey forms contain a header for “CBS Outdoor,” 

which is the predecessor company to Outfront. (E.g., Ex. R-5, Bates p. 170; T. 113, 294, 332).

5 While most of the Field Observation Surveys submitted by Outfront were completed by 

Mr. Bourne, some were completed by an individual with initials A.P., whose job title the record 

does not disclose, and who perhaps was responsible for conducting required field observations 

when Mr. Bourne was not available. (E.g., Ex. R-5, Bates p. 324).
17 

Events Preceding the Issuance of the Citation

Employee Discipline for Violation of Fall Protection Policy in March 2017

56. On March 31, 2017, an official from OSHA’s area office in Hartford telephoned 

Outfront’s North Haven office and spoke with Mr. Bourne. The official informed Mr. Bourne that 

OSHA had received a report from some third-party that Outfront employees had been seen that 

day working on a certain billboard in Hartford without fall protection equipment.6 (T. 103-04, 

195-97, 301-03). 

57. Outfront investigated the report and identified the employees assigned to work on the 

identified billboard. Those employees were the same four employees that six months later, on 

October 5, 2017, the CO observed repairing the Waterbury billboard. (T. 195-99, 254-56, 302-

03). Mr. Bourne had most recently conducted a field observation of these same four employees 

11 days earlier, on March 20, 2017, when he had observed them properly using fall protection PPE

and following safety procedures. (Ex. R-5, Bates p. 24). 

58. As a result of that internal investigation, all four employees acknowledged in writing 

that they “did not maintain 100% continuous tie-off while working at height” on March 31, and 

that “[t]his action was in direct conflict with [Outfront’s] initial/refresher training ... regarding fall 

protection and working at heights.” (Ex. R-3). 

59. All four employees executed sworn affidavits that on March 31, 2017 they had 

violated Outfront’s “fall protection policy to maintain 100% tie-off at all times or not to climb and 

work on structures where continuous tie-off could not be achieved.” (Ex. R-4). 

60. As a result of their March 31, 2017 violations of the Policy, all four employees were 

suspended for five days without pay, in accordance with Outfront’s progressive discipline protocol 

6 There is no evidence whether OSHA’s receipt of this third-party report and subsequent 

phone call to Outfront resulted in any other official action on the report. 
18 

that is contained in the Policy. (T. 127, 199, 257-58, 303-04; Exs. R-3 & R-4).

61. Between March 31 and October 5, 2017, all or some of the four employees who had 

been disciplined for the violation on March 31 were observed in random, unannounced field 

observations of at least thirteen different worksites, and they were complying with Outfront safety 

policies for each observation. (Ex. R-5, Bates pp. 158, 160, 343-44, 346, 355-56, 358, 361-63, 

372-73). The two field observations closest in time to October 5, 2017, were on September 19, 

when all four employees were observed, and on September 27, when two of the employees were

observed. (Ex. R-5, Bates pp. 158 & 160). 

The Crew’s September 2017 Site Visit

62. On September 20, 2017, Mr. Bourne directed the four employees who would later be 

tasked to repair the Waterbury billboard to “stop by and look at” the billboard because it had been 

reported to have some sections “sliding down.” (T. 201-02; Ex. R-1). This poster billboard was 

about 40 years old, had no engineered anchor points or other integrated fall protection features,

and was in visible disrepair. (T. 109, 202, 221-22). The purpose of the site visit was for the crew 

to assess the billboard and determine “what was needed to fix” it. (T. 203, 209-10). As part of 

that assessment, each of the employees had been trained to evaluate the structure of the billboard 

for the method and means of providing fall protection to complete needed work. (T. 135-36, 146-

47, 171, 209-10, 281).

63. The four employees understood that part of the site visit would entail assessing the 

billboard for potential safety hazards and determining whether PPE would be required to complete 

the job in accordance with the Policy. (T. 135-36, 146-47, 171, 202-04, 209-10, 232, 281, 410-

12; Ex. R-17, p. 11).

64. Each of the four employees had sufficient training, knowledge and experience to 

identify what repairs were required on any particular billboard and whether making those repairs 
19 

would expose a worker to a fall hazard that would require the worker to use certain fall protection 

PPE. (T. 78, 135-36, 146-47, 232, 281, 315-16, 410-12; Ex. R-17, p. 11).

65. Each of the employees knew that if any additional equipment were needed to conduct 

the repairs to the billboard, that equipment was available and would be provided. (T. 181, 216-17, 

230). 

66. Following the site visit on September 20, 2017, the employees reported that “the wood 

stringers in the back” of the billboard were rotted out and needed to be replaced. (T. 204; Ex. R1). The employees did not report that performing this repair presented any safety-related obstacles

that they were not equipped to address. (T. 209).

The Crew’s Failure to Use Fall Protection PPE on October 5, 2017

67. On October 5, 2017, around 7 to 8 a.m., the same four employees who had evaluated 

the Waterbury billboard about two weeks before on September 20 — Messrs. Anderson, Martin, 

Symmes, and Trudel — were directed to travel to the billboard to make the needed repairs they 

had identified during their site visit on September 20. (T. 24, 107-08, 305-06). Each of those 

employees had the same job title – “Sign Installer.” (T. 77, 287). Outfront had not designated any 

of them to be the lead person or to have any supervisory role. (T. 108). 

68. The CO was driving past the billboard at about 9:30 a.m. while on his way to conduct 

another inspection. He saw the crew working on the billboard and suspected that workers were 

working at height without required fall protection, so he stopped his vehicle and approached the 

crew on foot. (T. 24).

69. One of the employees (Mr. Symmes) was doing carpentry work on the ground, but the 

other three — Messrs. Anderson, Martin, and Trudel — were working on the billboard at heights 

greater than four feet, and none were wearing a harness or otherwise using any fall protection

equipment. (T. 25-26, 121-22; Exs. C-1 through C-9, C-18 & C-19). 
20 

70. Mr. Trudel and Mr. Anderson were standing on a makeshift work platform that the 

crew had created by placing a 2x8 inch board on top of three cross supports that were part of the 

billboard’s structure, so that the 2x8 ran about two-thirds the length of the billboard. (T. 259-60). 

This makeshift platform was visibly bowed downward from the weight of the two men. (Compare

photos at Exs. C-7 & C-8 with photo at Ex. C-4). While standing on this makeshift platform, 

Messrs. Trudel and Anderson were situated in between two parallel horizontal pieces of the 

billboard’s frame that were about two feet apart and at about pelvis height on the men. The 

horizontal piece in front of them was a wood board (likely a 2x6 inch board) that ran the length of 

the billboard and was situated in between the upper front and the upper rear parallel and horizontal 

angle irons that were part of the billboard’s frame (T. 206), both of which also ran the length of 

the billboard. The horizontal piece behind the two workers was the described upper rear horizontal 

angle iron. (T. 34; photos at Exs. C-1 through C-16; videos at C-18 & C-19).

71. Mr. Martin was standing on a horizontal board that was part of the billboard’s structure 

that was situated at about the mid-point of what would be the display area of the billboard. Mr. 

Martin was maintaining his balance by grasping the horizontal upper front angle iron (described

in the preceding paragraph) that was slightly above his head. (Exs. C-1, C-6 through C-9, C-18, 

C-19).

72. The two horizontal pieces of the billboard’s structure that Messrs. Trudel and 

Anderson were standing in between were not part of any engineered fall protection system. Neither 

was the horizontal board that Mr. Martin was standing on. These pieces were part of the billboard’s 

frame. (T. 38, 206). All the employees had the training, knowledge, and experience to recognize 

that these horizontal members of the billboard were part of the billboard’s frame and not part of 

any “passive” fall protection involving platforms and railings. (T. 225-26, 233, 259-60, 306-07). 
21 

73. The billboard had no engineered fall protection system. (T. 217, 221-23, 233; Exs. C4 & C-13). All the employees present had the knowledge, training, and experience to recognize 

that the billboard did not have any engineered fall protection system. (T. 109, 314). 

74. The CO accurately determined that Mr. Martin had been working at a height of 

approximately 12 feet above ground level and Messrs. Anderson and Trudel at a height of 

approximately 15 feet above ground level. (T. 31). 

75. Neither Mr. Trudel, Mr. Anderson, nor Mr. Martin was wearing a harness or otherwise 

using any fall protection PPE while working at height on the billboard. (T. 121-22). With their 

training, knowledge and experience, each of those employees knew that he was violating 

Outfront’s Fall Protection Policy. (T. 307, 314).

76. Upon approaching the crew on foot, the CO first spoke briefly with Mr. Symmes, who 

was doing carpentry work while on the ground. When Mr. Trudel noticed the CO speaking to Mr. 

Symmes, Mr. Trudel dismounted the billboard and approached the CO. (T. 29; video at Ex. C19). In response to the CO’s questions, Mr. Trudel stated he was not the foreman but that he was 

the most senior worker present. Mr. Trudel stated further that none of the four workers was “in 

charge,” and he identified the project manager to be Mr. Bourne in the North Haven office. (T. 

29, 108; Ex. C-19). The CO did not speak with either Messrs. Martin or Anderson. (T. 31). 

77. In response to the CO’s questions, Mr. Trudel said that he believed he was not required 

to use fall protection PPE because the horizontal members of the billboard that he was standing in 

between were sufficient as a “passive restraint.” (T. 34, 109). In stating this to the CO, Mr. Trudel 

was engaging in prevarication in an attempt to justify and excuse his failure to wear fall protection

PPE while working at height on the billboard. In actuality, Mr. Trudel knew that he should have 

been using fall protection PPE to comply with both Outfront’s policy and OSHA standards. (T. 
22 

314). Mr. Trudel knew that he, along with Messrs. Anderson and Martin, had been caught in the 

act of not using that PPE when required. (T. 302). He knew that if Outfront discovered he had 

violated the Policy a second time that he would be fired. (T. 120). Mr. Trudel contrived this

explanation in an attempt to convince the CO that he had not violated fall protection standards, 

and to avoid being fired for having committed a second violation of the Policy. 

78. The billboard on which the CO observed the employees working had neither certified 

anchor points nor locations that would serve as suitable improvised anchor points, and the 

employees knew this. (T. 109, 137, 217, 307). The employees should not have commenced work 

on the billboard under the Policy, and the employees knew this. (T. 109, 137, 151-52, 217, 317).

79. The CO contacted Mr. Bourne and Mr. Chesonis separately and reported details of his 

inspection to each. (T. 34-35, 205-206). 

80. Messrs. Bourne and Chesonis then investigated the crew’s conduct at the Waterbury 

billboard and concluded that Messrs. Anderson, Martin, and Trudel had been working more than 

four feet above ground level without utilizing fall protection equipment in violation of the Policy. 

(T. 207-08, 258-62; Exs. R-3 & R-4). Because this was the second Policy violation of each of 

those three employees, on October 10, 2017, Outfront terminated the employment of each of them. 

(T. 111-12, 207-08, 258-62; Ex. R-2).

81. On November 14, 2017, OSHA issued Outfront the three-item serious Citation.

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon Outfront’s 

timely filing of a notice of contest. 29 U.S.C. § 659(c). Outfront has employees and is engaged 

in a business affecting commerce, and thus meets the Act’s definition of “employer.” 29 U.S.C. 

§ 652(5). 
23 

All items in the Citation allege violations of safety standards promulgated pursuant to 

section 6(b) of the Act. 29 U.S.C. § 655(b). To establish a violation of such a standard, the 

Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) 

the terms of the standard were violated; (3) employees were exposed to or had access to the 

violative condition; and (4) the employer knew, or with the exercise of reasonable diligence could 

have known, of the violative condition. Atl. Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-

1747, 1994); Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in 

relevant part, 681 F.2d 69 (1st Cir. 1982). 

The three alleged violations, which the Secretary has grouped and proposed a single 

penalty for all three,

7 are addressed below in the following sequence: the training violation (Item 

1b); the hazard assessment violation (Item 1c); the fall protection violation (Item 1a).8

Item 1b – Section 1910.30(a)(3)(i) – Fall hazard training

Citation Item 1b alleges a violation of 29 C.F.R. § 1910.30(a)(3)(i), which provides that

“[t]he employer must train each employee in ... : (i) The nature of the fall hazards in the work 

7 Cf. Hackensack Steel Corp., 20 BNA OSHC 1387, 1394 (No. 97-0755, 2003) (noting that 

the Commission has the discretion to assess a single penalty for distinct but potentially overlapping 

violations). 

8 The safety standards cited for Items 1a and 1b are part of the standard pertaining to 

“walking-working surfaces” that was promulgated as a final rule in November 2016. WalkingWorking Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 

82494 (Nov. 18, 2016) (to be codified at 29 C.F.R. pt. 1910). Section 1910.28(b)(1)(i), cited in 

item 1a, was effective on January 17, 2017. Section 1910.30, “Training Requirements,” cited in 

item 1b, was effective May 17, 2017. 81 Fed. Reg. at 82890; 29 C.F.R. § 1910.30(a)(1). 
24 

area and how to recognize them.”9

Item 1b alleges that Outfront violated this standard on October 5, 2017 in that it “did not 

ensure that the employees exposed to fall hazards while performing ‘tasks’ from the vertically 

structured billboards were trained in fall hazards and how to avoid such hazards.” 

To establish non-compliance with a training standard, the Secretary must show the cited 

employer failed to provide the instructions that a reasonably prudent employer would have given 

in the same circumstances. N&N Contractors, Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 

2000), aff’d, 255 F.3d 122 (4th Cir. 2001), citing Archer-W. Contractors, Ltd., 15 BNA OSHC 

1013, 1019-20 (No. 87-1067, 1991) aff’d, 978 F.2d 744 (D.C. Cir. 1992), and El Paso Crane & 

Rigging Co., Inc., 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993). Where an employer has 

provided the type of training at issue, the Secretary must “show some deficiency in the training 

provided.” Id., quoting Am. Sterilizer Co., 18 BNA OSHC 1082, 1086 (No. 91-2494, 1997). As 

discussed below, the Secretary failed to prove that a reasonably prudent employer would have 

provided any different or additional training than Outfront provided in the nature of the fall hazards 

associated with working on billboards, and how to recognize those fall hazards. 

The Secretary stipulated that Outfront provided employees certain fall protection training 

(Stipulation at T. 176) and does not claim that Outfront provided no training at all on the nature of 

fall hazards and how to recognize them. Rather, the Secretary argues that Outfront’s fall protection 

training was deficient in the following three particulars: (1) that the training did not address the 

9 The term “fall hazard” is defined to be “any condition on a walking-working surface that 

exposes an employee to a risk of harm from a fall on the same level or to a lower level.” 29 C.F.R. 

§ 1910.21(b). The term “walking-working surface” is defined to be “any horizontal or vertical 

surface on or through which an employee walks, works, or gains access to a work area or

workplace location.” Id. The term “lower level” is defined in pertinent part as follows: “Lower 

level means a surface or area to which an employee could fall. Such surfaces or areas include, but 

are not limited to, ground levels....” Id.
25 

fall hazards associated with working on poster billboards (Sec’y Br. 8-9); (2) that the “100% tieoff” policy was “contradictory and confusing” (Sec’y Br. 9-12); and (3) that the training on 

anchorage points was vague and confusing. (Sec’y Br. 12-13). 

The Secretary’s contention that Outfront’s training was inadequate must be considered 

within the context of Outfront’s training program as a whole. Accordingly, Outfront’s actual

training program is reviewed first, followed by consideration of the Secretary’s asserted

deficiencies in that training. 

The Policy on which Outfront employees are trained states that “[i]n any situation where 

an employee is exposed to a potential fall hazard of greater than four (4) feet ... fall protection 

equipment shall be used ....” (Ex. R-9). Likewise, the Manual provided to each employee 

emphasizes that fall hazards are “one of the most common hazards” in the workplace when 

working at height. (Ex. C-20, p. 11). Outfront’s fall protection rule, nominally called the “100% 

tie-off” policy, served to emphasize the presence of fall hazards associated with working at height 

on billboards and that the use or presence of adequate fall protection was an imperative. (Findings 

of Fact, ¶¶ 38-40). Mr. Bourne frequently reminded the employees at the North Haven office of 

the existence of fall hazards on billboards and the imperative of complying with the fall protection 

rule. (T. 158-59). One member of the four-person crew that the CO observed working on the 

Waterbury billboard corroborated the frequency of Bourne’s exhortations, remarking that the fall 

protection policy was “beaten into our heads.” (T. 298). The existence of a written work rule to 

address the fall hazards associated with work on billboards, and frequent reinforcement of that 

work rule from management, have been recognized as components of an adequate training 

program. See Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2087 (No. 06-1542, 2012) 

(noting safety handbook and “100-percent tie off” rule as aspects of an adequate fall protection 
26 

training program); N&N Contractors, 18 BNA OSHC at 2127 (employer’s “written work rule” 

and meetings to “reinforce company safety policy” were evidence of the adequacy of fall 

protection training under the construction industry fall protection training standard at 29 C.F.R.

§ 1926.503(a)(1)).10

Outfront provides both initial training in fall protection and annual refresher training (semiannual refresher training at the North Haven office) in a group setting. (Findings of Fact, ¶¶ 14 & 

22). Each of the employees the CO observed on the Waterbury billboard received initial training 

in fall protection and semi-annual refresher training, with Mr. Trudel having received this formal 

training twelve separate times during his tenure with Outfront. (Findings of Fact, ¶ 26; T. 140). 

The written tests and PowerPoint presentation utilized during this training identified the fall 

hazards inherent in working at height on billboards and emphasized the imperative of adequate fall 

protection. (Exs. C-21 & R-13). Mr. Bourne delivered the PowerPoint presentation “slide by 

slide” and solicited employee questions. (Findings of Fact, ¶ 17). The employees also received 

practical instruction on the use of fall protection equipment, both in a classroom setting and a field 

setting on an actual billboard. (Findings of Fact, ¶ 16(e), (f)). These elements of Outfront’s 

training have been recognized as elements of an adequate training program. See S.J. Louis Constr. 

of Tex., 25 BNA OSHC 1892, 1898-99 (No. 12-1045, 2016) (finding a PowerPoint presentation 

which served as a “discussion guide” and the use of “performance tests” were aspects of an 

10 The cited training standard is largely derived from the fall protection training standard 

contained in the construction industry standards at section 1926.503(a)(1). See Walking-Working 

Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82,494, 

82,638 (Nov. 18, 2016) (to be codified in 29 C.F.R. Part 1910) (“OSHA drew most of the training 

requirements [of section 1910.30] from the construction fall protection standard.”). Commission 

precedent applying that corresponding construction industry fall protection training standard 

constitutes at least persuasive authority with respect to the derivative standard in part 1910 that 

was cited here. 
27 

effective training program); Thomas Indus., 23 BNA OSHC at 2087 (fall protection training

received during employee orientation or “a comparable refresher course” and “‘hands-on’ 

training” were aspects of an adequate fall protection training program); N&N Contractors, 18 BNA 

OSHC at 2127-28 (training received at the employer’s corporate office and at the work site were 

evidence of the adequacy of fall protection training under the construction industry fall protection 

training standard).

Outfront’s billboards have varying configurations respecting the presence of certified or 

improvised anchorages, and Outfront’s training instructed employees on the recognition of suitable 

improvised anchor points. (Findings of Fact, ¶¶ 13(b), 17(a)-(d), 19, 20, 35). Outfront’s training 

on anchorages included real world examples of “good” (i.e., suitable) and “bad” (i.e., unsuitable) 

improvised anchor points. (Findings of Fact, ¶¶ 17(c) & (d), 20). See El Paso Crane & Rigging 

Co., 16 BNA OSHC at 1426 (observing that where appropriate fall protection must be selected on 

a “situation-by-situation basis,” and that “a company that tells its employees what fall protective 

equipment is available and describes its use, or the circumstances in which it must be used, may 

quite conceivably be doing all that anyone could reasonably do.”). With respect to identifying 

suitable improvised anchorages, Outfront instructed its employees to employ a widely known rule 

of thumb known as the “truck test” in assessing whether an improvised anchor point will withstand 

a 5,000-pound load. (Findings of Fact, ¶ 19). See 29 C.F.R. § 1910.140(c)(13)(i) (providing that 

anchorages be “[c]apable of supporting at least 5,000 pounds ... for each employee attached”).11 

11 Subparagraph (ii) of 29 C.F.R. § 1910.140(c)(13) provides an alternative method for 

assuring an anchorage has adequate load bearing capacity and entails the involvement of a 

“qualified person” as defined in § 1910.140(b), such as a professional engineer. 29 C.F.R. 

§ 1910.140. 
28 

As described below, the Secretary has not established that a reasonably prudent employer 

would have provided substantially different or additional training under the circumstances than 

Outfront provided, and thus has not shown that Outfront’s training was inadequate. 

(1) Bulletin v. poster billboards 

First, the Secretary argues Outfront’s training did not address fall hazards that are peculiar 

to poster billboards like the Waterbury billboard involved here. (Sec’y Br. 8). This argument is 

rejected. The greater weight of the evidence is that the hazards associated with working on bulletin 

billboards and poster billboards are similar, if not substantially identical. (Findings of Fact, ¶ 5). 

The fact that bulletin billboards are generally more recently constructed, are more likely to have 

certified anchorages, and are higher off the ground than poster billboards does not alter the fact 

that fall hazards exist with either type of billboard involving employees working at heights of four 

feet and higher. (Findings of Fact, ¶ 5). Outfront’s training was reasonably geared to address fall 

hazards present on both types of billboards, as is corroborated by evidence that employees at the 

North Haven office routinely worked on poster billboards and demonstrated proficiency in

complying with Outfront’s fall protection policy in doing so. (T. 243, 271-73, 297, 367; Ex. R-5, 

Bates pp. 254, 319).

In support of the argument that the training was inadequate with respect to fall hazards 

unique to poster billboards, the Secretary relies on Mr. Trudel’s testimony that he was not trained 

in fall protection for poster billboards. (T. 109-10). Mr. Trudel’s testimony in this regard was 

conclusory and unconvincing. Mr. Trudel did not describe how the training he received was 

somehow not apt to poster billboards generally, or the Waterbury poster billboard specifically. (T. 

110). To the contrary, Mr. Trudel had been observed at least twice before this incident working 

on poster billboards while properly using PPE for fall protection. (T. 188, 193-94; Ex. R-5, Bates

pp. 254 & 319). The preponderant evidence establishes that Outfront’s employees at the North 
29 

Haven location, including Mr. Trudel, had been trained in recognizing and addressing the fall 

hazards associated with working on a poster billboard, Mr. Trudel’s unconvincing, conclusory 

testimony to the contrary notwithstanding. 

The Secretary also argues that the testimony of the expert witness for Outfront that “some 

equipment” is appropriate for use on bulletin billboards but not poster billboards demonstrates that 

Outfront’s training was deficient with respect to working at heights on poster billboards. (T. 401-

402). That testimony does not diminish the expert’s stated and reasonably supported conclusion 

that Outfront’s fall protection training addressed appropriate PPE to be used under varying 

circumstances, including the type of billboard involved. (T. 375, 380-81, 386-87; Ex. R-17, p. 6). 

See El Paso Crane & Rigging Co., 16 BNA OSHC at 1426 (“[a]n employer's instructions are not 

necessarily deficient just because they allow the employees discretion as to how to proceed,

particularly where the working circumstances are such that no one form of protection is capable 

of being used every time”). 

Moreover, the cited standard simply requires training on the “nature of the fall hazards in 

the work area and how to recognize them.” 29 C.F.R. § 1910.30(a)(3)(i). Even though some fall 

protection PPE may be apt only for bulletin billboards, this does not establish that Outfront’s 

training was deficient with respect to recognizing the nature of fall hazards common to both 

bulletin and poster billboards. (Findings of Fact, ¶ 5). The Secretary simply did not adduce 

evidence that specifically identified how the training Outfront provided was inapt or deficient with 

respect to work on poster billboards. 

The Secretary has not established that a reasonably prudent employer would have provided 

different or additional training to what Outfront provided relating to poster billboards. 
30 

(2) “100% tie-off” policy 

The Secretary next argues Outfront’s “100% tie-off” policy was “contradictory and 

confusing” because Outfront acknowledged that tying off was not required in circumstances where 

a billboard was constructed with an engineered “passive” fall protection system such as a guardrail 

system. (Sec’y Br. 9-12). The Secretary notes that Outfront trained employees that fall protection 

PPE was not required where adequate “passive” systems were in place, so that the “100% tie-off” 

policy was in actuality a “100% fall protection” policy. (Sec’y Reply Br. 2). 

While this characterization of Outfront’s nominal “100% tie-off” policy is accurate, the 

evidence is insufficient to support the conclusion that employees were confused or misunderstood 

the import of Outfront’s fall protection rule. See Danis Shook Joint Venture XXV, 19 BNA OSHC 

1497, 1501 (No. 98-1192, 2001) (a work rule is sufficiently precise where it “requires or proscribes 

certain conduct and ... is communicated to employees in such a manner that its mandatory nature 

is made explicit and its scope clearly understood.”) (quoting J.K. Butler Builders, Inc., 5 BNA 

OSHC 1075, 1076 (No. 12345, 1977) aff’d, 319 F.3d 805 (6th Cir. 2003)). The term “100% tieoff” is a vernacular expression to epitomize a policy that required the use of some form of 

appropriate fall protection whenever working at height on a billboard. (Findings of Fact, ¶ 38 & 

39). In Outfront’s work environment, the use of appropriate fall protection almost always entailed 

the use of fall protection PPE because very few of Outfront billboards were constructed with 

engineered “passive” fall protection systems that obviated the need for workers to wear and use 

(by “tying-off”) fall protection PPE. (Findings of Fact, ¶ 40). The Secretary’s parsing and

deconstruction of phrases and sentences in Outfront’s Policy (Sec’y Br. 10-11; Ex. R-9), though 

showing that the Policy probably could have been stated with greater precision and clarity, does 

not establish that the language employed was insufficiently precise or clear to communicate to 
31 

Outfront’s employees the Policy’s main idea — that the use of appropriate fall protection was an 

imperative at all times when working at height. 

Further, the evidence established that Outfront’s training imparted the knowledge and 

understanding that enabled employees to recognize whether any given billboard was configured 

with an engineered “passive” fall protection system. (Findings of Fact, ¶¶ 40 & 43). It is apparent 

that the Waterbury billboard, an aging poster billboard that was in visible disrepair (T. 202, 221-

22), had no such engineered fall protection system (T. 109, 217), and that any employee who had 

completed Outfront’s training would have recognized this. (Findings of Fact, ¶ 43 & 73). Mr. 

Trudel recognized “that there were no safety cables designed or on this board to utilize” on the 

Waterbury billboard. (T. 109). Mr. Trudel was not credible in testifying that he regarded the two 

horizontal members of the billboard structure that he was standing in between (the angle iron 

behind him and a 2x6 inch board in front of him, both at about pelvis height), in combination with 

the makeshift work platform on which he was standing (that the crew had created by placing an 

unsecured 2x8 inch board across three supports), constituted an adequate passive rail system that 

negated the need to tie-off with fall protection PPE. (T. 109-11, 226, 260; Exs. C-1, C-4, C-8, C12 through C-16). Instruction provided to Mr. Trudel and the other employees regarding guardrail 

systems included instruction that such systems are engineered into the billboard. (T. 215). Mr. 

Trudel understood this. (T. 109-110). Given Mr. Trudel’s training and his approximate 10 years 

of experience working on billboards with both Outfront and with two other outdoor advertising 

companies (T. 100), his stated belief that the makeshift 2x8 wood platform he stood on, the 

horizontal angle iron behind him, and the horizontal 2x6 in front of him, provided fall protection 

that was an appropriate alternative means of fall protection on a billboard that was about 40 years 

old and falling apart, strains credulity and is simply beyond belief. (See T. 396-97). While the 
32 

CO apparently accepted Trudel’s explanation at face value (T. 93-94), the undersigned as the finder 

of fact is obliged to evaluate his testimony in light of other evidence in the record to which the 

testimony can be compared and to examine the testimony for internal consistency and intuitive 

plausibility. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[F]actors other than 

demeanor and inflection go into the decision whether or not to believe a witness. Documents or 

objective evidence may contradict the witness’s story; or the story itself may be so internally 

inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).

Contrary to the Secretary’s contention, the evidence is insufficient to establish that the 

nominal “100% tie-off” policy lacked sufficient clarity or generated confusion among Outfront 

workers regarding the imperative to be protected by some form of adequate fall protection, whether 

“active” or “passive,” at all times while working at height. The evidence is further insufficient to 

establish that an employee receiving Outfront’s training would not be competent to recognize what 

forms of fall protection were available on a given billboard. The Secretary has thus failed to 

identify any deficiency in Outfront’s training with regard to its “100% tie-off” policy. Cf. Paul 

Betty, 9 BNA OSHC 1379, 1383 (No. 76-4271, 1981) (finding that work rule had not been 

adequately communicated where the senior employee at the jobsite did not recognize that a 

situation called for the work rule to be implemented).

(3) Anchor points 

Finally, the Secretary argues that Outfront’s training regarding anchor points is vague and 

confusing in that (1) “Outfront fails to explain how” the topics of “‘good’ anchorage points, and 

approved load of anchorage points, work together,” and (2) Outfront’s training on the “truck test” 

(for assessing whether a potential improvised anchorage is suitable) was flawed because one 

employee’s testimony suggested that he did not accurately comprehend the test. (Sec’y Br. 12-

13). 
33 

Outfront’s training materials are sufficiently explanatory to defeat the Secretary’s first 

criticism. The training materials and the training provided employees make sufficiently clear that 

anchor points must be suitable, and that suitable (i.e., “good”) anchor points include engineered 

anchorages and suitable improvised anchorages. (Findings of Fact, ¶¶ 13(b), 17(a)-(d), 19, 20). 

In support of his second criticism, the Secretary cites to testimony from an Outfront 

employee in which the employee misstated the minimum rating for an improvised anchor point, 

which is 5,000 pounds. See 29 C.F.R. § 1910.140(c)(13)(i). It is apparent from the cited testimony 

that the employee confused the approximate weight of a full-size pickup truck with its load 

capacity, which is less than its weight. (T. 290, 311). This apparent confusion notwithstanding, 

the totality of the employee’s testimony established that he understood the “truck test” and how to 

apply it in identifying appropriate improvised anchor points. (T. 168, 289-90, 383). The witness’s 

confusion on the nomenclature used to describe a truck’s load capacity does not establish that it is

inappropriate for a reasonably prudent employer to instruct employees on using the “truck test” in 

identifying appropriate improvised anchor points. Cf. Paul Betty, 9 BNA OSHC at 1383 

(employee was inadequately trained where he had only a “general awareness of the cited standards’ 

requirements”). 

The Secretary failed to prove that the fall protection training Outfront provided was 

deficient. Accordingly, Item 1b of the Citation must be vacated.

Item 1c – Section 1910.132(d)(1) – Hazard assessment

Item 1c alleges a violation of section 1910.132(d)(1), which provides in relevant part that 

“[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be 

present, which necessitate the use of [PPE].” Item 1b alleges that Outfront violated this standard 

with respect to the Waterbury billboard in that Outfront “did not ensure that a Workplace Hazard 
34 

Assessment in ‘tasks and sites’ specifics was conducted to determine necessary and appropriate 

types of [PPE] for the employees who were assigned to perform ‘tasks’ from vertically structured 

billboards.” 

In 2007 and again in 2016, Outfront conducted formal general companywide hazard 

assessments. (Findings of Fact, ¶¶ 28-32). These general assessments are insufficient by 

themselves to meet the requirements of section 1910.132(d)(1), because they lacked an assessment 

of the particularities of any specific billboard, including the Waterbury billboard. See Wal-Mart 

Distrib. Ctr. #6016, 25 BNA OSHC 1396, 1398-1400 (No. 08-1292, 2015) (affirming violation of 

section 1910.132(d)(1) upon concluding that a hazard assessment conducted at one facility was 

insufficient to meet requirement to conduct a hazard assessment for a different facility, in part

because the employer “never verified the equivalency of the conditions between the two

facilities”), aff’d in relevant part, 819 F.3d 200 (5th Cir. 2016). 

The preponderant evidence established that Outfront conducted a site-specific hazard 

assessment of the Waterbury billboard on September 20, 2017 in conjunction with the site 

inspection that the four employees conducted before the start of work on that billboard on October 

5, 2017. (Findings of Fact, ¶¶ 62-66). Implicit in Mr. Bourne’s instruction that the employees

“check board” (Ex. R-1, p. 2) and “stop by and look at” the billboard (T. 201-02) was a directive 

to conduct a hazard assessment for possible safety hazards, including fall hazards, and determine 

what safety equipment was necessary to complete the work. (Findings of Fact, ¶ 62). All four 

employees understood this to be an implied task as a result of their knowledge, training, and 

experience. (Findings of Fact, ¶ 63). Moreover, all four employees were competent persons 

capable of assessing the billboard for hazards and determining what PPE would be necessary to 

address those hazards in the course of making needed repairs to the billboard. (Findings of Fact, 
35 

¶ 64; T. 203, 209-10; Ex. R-17, p. 11). See section 1910.140(b) (defining the term “competent 

person” to mean “a person who is capable of identifying existing and predictable hazards in any 

personal fall protection system or any component of it, as well as their application and uses with 

related equipment ....”). Mr. Trudel confirmed this to be his implicit understanding when he 

acknowledged that he knew that among the reasons for inspecting the billboard before beginning 

work on it was to make sure that the crew could work safely, notwithstanding that the crew was 

not explicitly instructed to do so. (T. 135-36).

The Secretary argues that a provision in the Policy precluded delegating the task of 

conducting a site-specific hazard assessment to non-managerial employees. (Sec’y Br. 14-15). 

The provision to which the Secretary points provides as follows: “Management, with employee 

participation, will make a hazard assessment and determine the [PPE] required for the task 

assigned.” (Ex. R-9). 

The cited standard does not prohibit an employer from delegating the task of conducting a 

hazard assessment to non-managerial employees. See N&N Contractors, 18 BNA OSHC at 2127 

(employer may allow properly trained employees discretion in how to proceed with work and

determining the PPE that is required in view of the work process selected); El Paso Crane & 

Rigging Co., 16 BNA OSHC at 1426 (where necessary PPE will vary on a “situation-by-situation 

basis ... a company that tells its employees what fall protective equipment is available and 

describes its use, or the circumstances in which it must be used, may quite conceivably be doing 

all that anyone could reasonably do.”). Even if the delegation of this task to the work crew is 

regarded as being contrary to the recital in the Policy quoted above, that variance does not equate 

to a violation of the cited standard. See Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 

2066 (No. 78-1443, 1984) (consolidated) (“An employer’s safety recommendations do not 
36 

establish that such precautions were necessary in order to comply with a standard.”), aff’d, 764 

F.2d 32 (1st Cir. 1985). The employees’ site visit met the requirement of section 1910.132(d)(1) 

to conduct a hazard assessment. See Wal-Mart Distrib. Ctr. #6016, 25 BNA OSHC at 1399; El 

Paso Crane & Rigging Co., 16 BNA OSHC at 1426; Infra-Red Bldg. & Power Svc., Inc., No. 17-

1511, 2019 WL 5893218 at *13-14 (O.S.H.R.C.A.L.J, Oct. 7, 2019) (finding that training 

employees to assess a job site and determine what type of PPE should be worn was “consistent 

with” 29 C.F.R. § 1910.132(d)(1)); see also Nonmandatory Compliance Guidelines for Hazard 

Assessment and Personal Protective Equipment Selection, App’x B to Subpart I of 29 C.F.R. pt.

1910 (indicating that a “walk-through” survey of a worksite conducted by a “safety officer” is a 

component of an adequate hazard assessment).

The Secretary further argues that because Outfront’s training was deficient, the employees 

could not be regarded to be “competent persons” to assess what fall protection PPE would be 

required to work on the Waterbury board, so that any hazard assessment the employees’ conducted 

was inadequate. However, as found in discussing Item 1b of the Citation, the Secretary failed to 

establish that Outfront’s training was deficient. The employees, as competent persons in the area 

of identifying and recognizing fall hazards, were capable of conducting a hazard assessment of the 

Waterbury billboard and determining what fall protection measures were necessary to safely 

complete the work. See El Paso Crane & Rigging Co., 16 BNA OSHC at 1426; cf. Baker Tank 

Co., 17 BNA OSHC 1177, 1179 (No. 90-1786-S, 1995) (recognizing that properly instructed 

employees can carry out an employer’s duties under the Act).

Finally, the Secretary points to uncontroverted evidence that Outfront did not prepare a 

written certification that documented the site-specific hazard assessment that the employees 
37 

conducted. (Sec’y Br. 16). Such a written certification is required by section 1910.132(d)(2).12 

However, the citation item alleges that Outfront failed to conduct a hazard assessment, not that 

Outfront failed to properly document that it had done so. See Jake’s Fireworks, Inc., 26 BNA 

OSHC 1738, 1750 n.10 (No. 15-0260, 2017) (ALJ) (finding that, although lack of a written 

certification was “strong evidence” that no hazard assessment occurred, it was not sufficient to 

prove a violation of sec. 1910.132(d)(1)) aff’d, 893 F.3d 1248 (10th Cir. 2018). As previously 

described, Outfront conducted a hazard assessment that met the requirements of the cited standard, 

section 1910.132(d)(1). 

The Secretary has not proven that Outfront’s site-specific hazard assessment of the 

Waterbury billboard did not meet the requirements of section 1910.132(d)(1). Accordingly, Item 

1c of the Citation is vacated. 

Item 1a – Section 1910.28(b)(1)(i) – Protection from fall hazards

Item 1a alleges a violation of section 1910.28(b)(1)(i), which provides: 

(b) Protection from fall hazards--(1) Unprotected sides and edges. (i) Except as 

provided elsewhere in this section, the employer must ensure that each employee 

on a walking-working surface with an unprotected side or edge that is 4 feet (1.2 

m) or more above a lower level is protected from falling by one or more of the 

following: 

(A) Guardrail systems; 

(B) Safety net systems; or 

(C) Personal fall protection systems, such as personal fall arrest, travel restraint, 

or positioning systems. 

The Citation alleges that Outfront violated the standard because it “did not ensure that the 

employees who were performing ‘tasks’ from the vertically structured billboards were protected 

12 Section 1910.132(d)(2) provides: “The employer shall verify that the required workplace 

hazard assessment has been performed through a written certification that identifies the workplace 

evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard 

assessment; and, which identifies the document as a certification of hazard assessment.”
38 

from the hazard of falling more than 4 feet to the ground by the use of appropriate personal fall 

arrest systems/devices or utilizing other means [or] methods.”

 Outfront contests only the “knowledge” element of the Secretary’s burden of proof, 

contending that the evidence is insufficient to establish that Outfront knew, or with the exercise of 

reasonable diligence could have known, of the violative conduct. The Secretary does not contend 

that Outfront had actual knowledge of the employees’ violative conduct, arguing only that he 

proved constructive knowledge.

13 (Sec’y Br. 17-19). As described below, the Secretary has failed 

to carry his burden to prove constructive knowledge. 

To prove constructive knowledge, the Secretary must show that Outfront’s lack of actual 

knowledge of a violative condition was due to a failure to exercise reasonable diligence. See 

Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). “In assessing reasonable 

diligence, the Commission considers several factors, including an employer’s obligations to 

implement adequate work rules and training programs, adequately supervise employees, anticipate 

hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr., 25 BNA 

OSHC at 1894. The regular enforcement of disciplinary procedures also bears on whether an

employer exercised reasonable diligence. See Thomas Indus. Coatings, 23 BNA OSHC at 2088-

13 The Secretary did not attempt to prove, and does not argue, that any of the four crew 

members working on the Waterbury billboard had sufficient authority to be deemed a supervisor 

for purposes of imputing their actual knowledge of the violative conduct to Outfront. See e.g., Pa.

Power & Light Co. v. OSHRC, 737 F.2d 350, 352, 355 (3d Cir. 1984) (finding that the crew leader 

of a three-person electrical utility crew at a remote worksite was a supervisor whose actual 

knowledge of a violative condition could be imputed to the employer). Attempting to establish 

imputed actual knowledge would have been inconsistent with the Secretary’s theory of the case 

that the employees did not know that they were violating Outfront’s fall protection work rule 

because their fall protection training had been inadequate. (Sec’y Br. 7-13). Cf. Paul Betty, 9 

BNA OSHC at 1383 (finding that work rule had not been adequately communicated where the 

senior employee at the jobsite did not recognize that a situation called for the work rule to be 

implemented). 
39 

89. Whether an employer has exercised reasonable diligence is a question of fact that will “vary 

with the facts of each case.” Martin v. OSHRC, 947 F.2d 1483, 1485 (11th Cir. 1991). 

The Secretary argues Outfront failed to exercise reasonable diligence because: (1) it lacked 

adequate work rules and training (Sec’y Br. 19); (2) it failed to adequately supervise employees 

(Id. at 18-19); and (3) it failed to adequately assess the Waterbury billboard work site for potential 

hazards (Id. at 18). Each of these arguments is addressed in turn.

(1) Adequate training and work rules

In arguing that Outfront’s employees lacked adequate training and work rules, the 

Secretary relies on his arguments made in connection with the alleged training violation (Item 1b) 

that Outfront’s fall protection training was inadequate. As the discussion above rejecting those 

arguments concluded, the Secretary failed to prove that a reasonably prudent employer would have 

provided fall protection training that was substantially different than the training Outfront 

provided, including training respecting the nature of fall hazards on poster billboards and how to 

recognize them. The Secretary similarly failed to establish that Outfront’s work rule, nominally 

identified as the “100% tie-off” policy, lacked sufficient clarity or generated confusion among 

Outfront workers regarding the imperative to be protected by some form of adequate fall protection 

at all times while working at height.

(2) Adequate supervision of employees

The Secretary argues Outfront failed to adequately supervise its employees. In support of 

this argument, the Secretary faults Outfront for having no managerial or supervisory employee in 

charge of the crew, and propounds the following rhetorical question: “If an employer can avoid 

responsibility by placing no one in charge, then why would the employer ever do so?” (Sec’y 

Reply. Br. 4). 
40 

Longstanding precedent holds that the presence of supervisory personnel at a worksite is

not a sine qua non of adequate supervision. See N. Y. State Elec. & Gas Corp. v. Sec’y, 88 F.3d 

98, 109 (2d Cir. 1996) (“Insisting that each employee be under continual supervisor surveillance 

is a patently unworkable burden on employers.”); Stahl Roofing, Inc., 19 BNA OSHC 2179, 2182

(No. 02-1024, 2003) (employer whose practice was not to assign supervisory personnel to be 

present fulltime at widespread worksite locations determined not to have had constructive 

knowledge of employee’s violative conduct). Rather, in assessing the adequacy of employee 

supervision, the Commission looks to the whole of an employer’s monitoring, compliance, and 

disciplinary efforts, viewed in light of any past violative conduct of employees. See Stahl Roofing 

Inc., 19 BNA OSHC at 2182-83; Hackensack Steel Corp., 20 BNA OSHC 1387 (No. 97-0755, 

2003); Sw. Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000); Michael Barr, No. 19-

0258, 2019 WL 7176889, at *9-10 (O.S.H.R.C.A.L.J., Nov. 18, 2019). 

The Secretary has not established that Outfront failed to exercise reasonable diligence in 

the supervision and monitoring of its work crews. Outfront supervisors conduct random field 

observations of employees working on various billboards at least four times a month. (Findings 

of Fact, ¶¶ 49 & 50). Employees who fail to comply with Outfront’s Fall Protection Policy receive 

significant discipline for both a first and a second violation, with the sanction for the second 

violation being termination of employment. (Findings of Fact, ¶ 47). These are attributes of an 

effective monitoring and enforcement program. Cf. Thomas Indus. Coatings, Inc., 23 BNA OSHC 

at 2087-88 (disciplinary program where the entire crew could be suspended without pay if one 

member violated fall protection policies); Stahl Roofing, Inc., 19 BNA OSHC at 2182 (progressive 

disciplinary program ranging from oral reprimand to termination); N.Y. State Elec. & Gas Corp., 

19 BNA OSHC at 1229 (enforcement program calling for random site inspections). 
41 

Outfront supervisors had observed one or more of the three employees who were violating 

the fall protection policy on October 5, 2017 at about 90 different worksites between January 2014

and October 2017, and at each of those worksites the employees had been following Outfront’s 

fall protection work rules. (Findings of Fact, ¶ 53). In the two instances in which the employees 

were determined to have violated Outfront’s Fall Protection Policy, they were disciplined 

according to Outfront’s progressive discipline policy. (Findings of Fact, ¶¶ 60, 80).

The Secretary argues the absence of a foreman or other supervisor on the four-person crew 

is particularly “jarring given ... Outfront’s understanding of these employees’ safety history.” 

(Sec’y Br. 18). The record is silent with respect to whether Outfront increased monitoring of these 

employees following their violation of the fall protection rule in March 2017. Cf. Hackensack 

Steel Corp., 20 BNA OSHC at 1389 (noting that multiple previous OSHA violations should have 

led the foreman to do “more to discover safety violations than he did.”). Nevertheless, the record 

does show that all or some of the four employees on that crew were subject to site observations at 

least 13 times from April through September 2017, and that each time they were following safety 

rules. (Findings of Fact, ¶ 61). Given the overall positive record of employee compliance with 

the fall protection rule, and the incentives in place for employees to follow that policy in order to 

avoid the severe discipline mandated by Outfront’s progressive discipline policy, the Secretary has 

not established that Outfront failed to exercise reasonable diligence in its supervision and

monitoring of its employees working in the field. See Stahl Roofing, Inc., 19 BNA OSHC at 2182 

(“Where the evidence fails to show that the employer should have perceived a need for additional 

monitoring or that such an effort would have led to the discovery of instances of employee 

misconduct, increased supervisory efforts to monitor employee compliance are not required.”) 

(quoting Dover Elevator Co., 16 BNA OSHC 1281, 1287 (No. 91-862, 1993)). The evidence also 
42 

demonstrated that Outfront disciplined its employees in every instance where a violation of its Fall 

Protection Policy was found to have occurred. (Findings of Fact, ¶¶ 48, 60, 80). Indeed, the four 

employees here had been disciplined in connection with a Policy violation just six months prior to 

this one, and they knew their employment would be terminated if they violated the policy a second 

time. (T. 120, 293; Exs. R-3 & R-4). These circumstances weigh against a finding that Outfront 

failed to exercise reasonable diligence in monitoring its worksites, despite the employees’ first 

known violation six months earlier. See Thomas Indus. Coatings, Inc., 19 BNA OSHC at 2088-

89 (uniformity of discipline weighs in favor of a finding of reasonable diligence); F.A. Gray, Inc., 

12 BNA OSHC 1311, 1314 (No. 83-517, 1985) (finding no lack of reasonable diligence, in part,

where employees were “experienced” and knew they would be fired for breaking the employer’s 

safety rule) (view of Commissioner Cleary).

The Secretary compares the instant matter to Public Utils. Mgmt. v. Sec’y of Labor, 417 F.

App’x 58 (2d Cir. 2011) (unpublished), and argues that the court there found lack of adequate 

supervision even where a foreman had been designated to look for safety violations.14 The 

Secretary argues that in contrast, “Outfront’s ‘supervision’ is ... far worse; it is absent.” (Sec’y

Br. 19). This argument is rejected. The court in Public Utils. Mgmt. noted, “[d]epending on the 

circumstances, close supervision may or may not be reasonably necessary to attain compliance 

14 It is likely that the only court of appeals to which the Secretary could seek review of a 

final order of the Commission in this matter is the Second Circuit, because the alleged violations 

arose in Connecticut, and there is evidence that Outfront’s principal office is in New York. (T. 

280). See 29 U.S.C. § 660(b); 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 ... applied the precedent of that circuit in deciding the case—even 

though it may differ from the Commission’s precedent.”). It should be noted that the Second 

Circuit has determined not to accord its decision in Public Utilities Management precedential 

effect within the circuit because it was issued as a “summary order.” See 2d. Cir. R. 32.1.1(a)

(“Rulings by summary order do not have precedential effect.”); Public Utils. Mgmt. v. Sec’y of 

Labor, Docket No. 10-0123-ag (2d. Cir. 2011) (summary order). 
43 

with safety rules.” 417 Fed.App’x at 63, quoting N.Y. State Elec. & Gas Corp., 88 F.3d at 109 

(emphasis added). The Second Circuit in Public Utils. Mgmt. thus did not rule that the existence 

of a designated foreman or other supervisor at the worksite is dispositive of adequate supervision. 

The Secretary did not demonstrate a lack of reasonable diligence in Outfront’s monitoring 

of its worksites or enforcement of its work rules.

(3) Hazard assessment of the workplace 

Reiterating his arguments made in support of the alleged hazard assessment violation (Item 

1c), the Secretary argues Outfront “took no action to inspect the [Waterbury billboard] for potential 

hazards.” (Sec’y Br. 18). However, as previously discussed in vacating Item 1c, Outfront 

demonstrated that the four employees understood that part of their site visit on September 20, 2017, 

would involve assessing the billboard for potential hazards and determining what PPE would be 

required to complete the job in accordance with Outfront’s Fall Protection Policy, and that each 

was competent to make such an assessment. (Findings of Fact, ¶¶ 62-64). The employees 

performed a hazard assessment that met the requirements of section 1910.132(d)(1).

Based on the foregoing, the Secretary did not demonstrate that Outfront failed to exercise 

reasonable diligence to discover the violations and therefore did not demonstrate that Outfront had 

constructive knowledge of its employees’ violative conduct.

15 Accordingly, Item 1a of the 

Citation is vacated.

15 In view of the Secretary’s failure to prove the alleged fall protection violation, Outfront’s 

affirmative defense that the violation was the result of unforeseeable employee misconduct need 

not be addressed. Cf. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) 

(“The Commission has considered these same factors in evaluating both an employer’s 

constructive knowledge and the merits of an employer’s unpreventable conduct affirmative 

defense.”), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).
44 

ORDER

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

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

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

so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact and 

conclusions of law, it is ORDERED that: 

1. Item 1a of the Citation, alleging a serious violation of 29 C.F.R. § 1910.28(b)(1)(i), 

having not been proven, is VACATED.

2. Item 1b of the Citation, alleging a serious violation of 29 C.F.R. § 1910. 30(a)(3)(i), 

having not been proven, is VACATED. 

3. Item 1c of the Citation, alleging a serious violation of 29 C.F.R. § 1910.132(d)(1), 

having not been proven, is VACATED.

__/s/___________________ 

WILLIAM S. COLEMAN

Administrative Law Judge 

Dated: May 4, 2020