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. 14-1636 

MEADOWS CONSTRUCTION 

COMPANY LLC,

Respondent.

Appearances: Dustin Saldarriaga, Esquire

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

For the Secretary

Stephen P. Kolberg, Esquire 

Kolberg Law, P.C., Boston, Massachusetts 

 For the Respondent 

Before: William S. Coleman

Administrative Law Judge 

DECISION AND ORDER

The Respondent, Meadows Construction Company LLC (Meadows or 

Respondent) is a general contractor located in Newburyport, Massachusetts. Meadows 

obtained a construction contract to replace the asphalt shingles, gutters, and downspouts 

on two-story public building used as a police station located in Haverhill, Massachusetts. 

On August 21, 2014, the Area Office of the Occupational Safety and Health 

Administration (OSHA) located in Andover, Massachusetts, received an anonymous 

complaint regarding safety at the worksite, and as a result, a compliance safety and health 

officer (CO) from the Area Office went to the worksite that same day to investigate. As a 
2 

result of that investigation, OSHA issued a two-item serious citation (Citation) to 

Meadows on September 9, 2014, proposing a penalty of $5,390 for each item. 

Item 1 of the Citation alleged a violation of the construction industry standard for 

fall protection at 29 C.F.R. § 1926.502(d)(15), which requires in pertinent part that 

“Anchorages used for attachment of personal fall arrest equipment shall be ... capable of 

supporting at least 5,000 pounds (22.2 kN) per employee attached.” The Citation item 

alleged that Meadows had violated this standard in that its “fall protection anchors were 

not properly secured to the peak of the roof.” 

Item 2 alleged a violation of the construction industry standard for “material 

handling equipment” at 29 C.F.R. § 1926.602(c)(1)(vi), which provides as follows: “All 

industrial trucks in use shall meet the applicable requirements of design, construction, 

stability, inspection, testing, maintenance, and operation, as defined in American 

National Standards Institute B56.1-1969, Safety Standards for Powered Industrial 

Trucks.” The Citation item alleged that Meadows had violated this standard in that “a 

Caterpillar rough terrain forklift was left unattended with the hoisting boom fully 

extended over the roof of a two story commercial building with a pallet of roof shingles 

on the forks.” 

Meadows timely contested the Citation and proposed penalty, and the Executive 

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

docketed the matter on November 3, 2014. The Commission’s Chief Judge thereafter 

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

Proceedings, 29 C.F.R. pt. 2200, subpt. M, and assigned the matter to the undersigned 
3 

Commission Judge for hearing and decision.1

 

The undersigned conducted an evidentiary hearing in Boston, Massachusetts on 

February 4, 2015. The parties thereafter simultaneously filed post-hearing principal 

briefs. The Secretary exercised the option to file a reply brief, and briefing was complete 

on April 2, 2015. 

The salient issues for decision are: 

• Did the Secretary prove by a preponderance of the 

evidence that a roof anchor in use was not “capable of 

supporting at least 5,000 pounds per employee 

attached” because it had been improperly installed? 

• Did the Secretary prove by a preponderance of the 

evidence that Meadows’ rough terrain forklift truck had 

been left “unattended” with its load-engaging means 

elevated? 

As described below, the Secretary has met his burden of proof on both. The two 

Citation items are affirmed, and a penalty of $4,750 is assessed for each, for a total 

penalty of $9,500. 

Findings of Fact

A preponderance of the evidence established the following: 

1. The Respondent, Meadows Construction Company LLC, is a general 

contractor based in Newburyport, Massachusetts. Most of Meadows’ work involves 

 1 Because this matter is in Simplified Proceedings, no complaint or answer was 

filed. See 29 C.F.R. § 2200.205(a) (providing that “the complaint and answer 

requirements are suspended” in Simplified Proceedings). The original Citation served as 

the functional equivalent of the Secretary’s complaint. Pursuant to a scheduling order, 

Meadows filed an Amended Statement of Affirmative Defenses on December 23, 2014. 
4 

exterior work on public construction projects. (T. 126-27). Meadows’ business affects 

interstate commerce. 

2. Meadows employs about 25 employees during the spring, summer, and fall, 

and somewhat fewer during winter. (T. 151, 157). 

3. In 2014, the City of Haverhill, Massachusetts, contracted with Meadows to 

perform roofing and gutter work on a two-story police station building at 40 Bailey 

Boulevard, Haverhill, Massachusetts. The work entailed removing the existing asphalt 

shingles, installing new shingles, and replacing the building’s gutters and downspouts. 

(Ex. 1; T. 28-30). 

4. Meadows commenced work sometime after July 24, 2014. Meadows did not 

engage any subcontractors for the project, so Meadows employees were the only persons 

working on the project. (T. 81-82, 127).

5. On August 21, 2014, the OSHA Area Office in Andover, Massachusetts, 

received an anonymous complaint reporting inadequate fall protection at the worksite. 

(T. 12). As a result of that anonymous complaint, CO Thomas Braile was dispatched to 

investigate. (T. 27). 

6. CO Braile arrived at the worksite shortly before 4:00 p.m. on August 21, 

2014. (T. 29). 

Roof Anchor Model A210400 

7. The following conditions pertinent to the use of a particular brand and model 

roof anchor (Werner Company model A210400) existed when CO Braile entered the 

worksite. 
5 

8. Six Meadows employees were on the south face of the roof installing new 

shingles. (T. 64, 82; Exs. C-2, C-3, C- 5). The slope of the roof was 8 in 12 (vertical to 

horizontal). (T. 149). The eave of the roof was about 25 feet above ground level. 

9. Each employee working on the roof was using a personal fall arrest system to 

protect against fall hazards.

10. One type of roof anchor being used as part of the personal fall arrest systems 

was Werner Company model A210400. Model A210400 is depicted and described in the 

manufacturer’s “User Instructions” at Exhibit C-14. (T. 75-76). Model A210400 is a 

reusable roof anchor with two flanges that are hinged together. The design of model 

A210400 allows the anchor to be used over a roof’s peak, with the separate flanges being 

attached to opposite sides of the peak. However, model A210400 may also be properly 

installed at locations other than over a roof peak. (T. 65-67, 146-47, 167). 

11. The manufacturer of anchor model A210400 rates it to support at least 5,000 

pounds when properly installed. (Ex. C-14, pp. 3-4). To properly install model 

A210400, both flanges must be secured to the roof, with six screws securing each flange, 

for a total of 12 screws. (Ex. C-14, pp. 3-4; T. 66, 74-76, 93). According to the 

manufacturer, roof anchor model A210400 will not hold its rated capacity of at least 

5,000 pounds if only one of its two flanges is secured to the roof. (Ex. C-14, pp. 2-3; T. 

77-79).

12. The roof anchor that is depicted in use on the peak of the roof on the left side 

of the photograph in Exhibit C-2 is Werner Company model A210400. This roof anchor 

had only one of its two flanges secured to the roof. (T. 67, 183; Ex. C-2). The Meadows 
6 

employee depicted in Exhibit C-2 sitting on the peak of the roof to the immediate right of 

this roof anchor had connected the lanyard of his personal fall arrest system to that roof 

anchor. (Ex. C-2; T. 67). 

13. It was common practice for Meadows’ employees to secure only one flange 

of the two-flanged anchor model A210400. (T. 170). 

Rough Terrain Forklift Truck (Telehandler) 

14. The following conditions pertinent to Meadows’ rough terrain forklift truck 

existed when the CO entered the worksite. 

15. Meadows was using a rough terrain forklift truck, Caterpillar model 

TH360B, to deliver a pallet of new shingles to the workers on the roof. (T. 17, 19-20, 

34). This rough terrain forklift truck is known as a “telehandler.” A rough terrain forklift 

truck like the telehandler is a type of powered industrial truck. (T. 63). The telehandler

has a three-stage extensible boom with a fork attached at its end. (T. 130). 

16. The telehandler’s extensible boom was raised and extended so that the fork 

hung directly over the lower part of the roof’s surface. (Ex. C-2, T. 30-31, 35, 40 42). 

The elevated fork held a pallet of new asphalt shingles, which had weighed about 2,100 

pounds when full. (C-2; T. 64, 166, 176). The fork hovered over the roof’s surface at a 

level that permitted the workers on the roof to readily grasp and carry new shingles from

the pallet. (Ex. C-2).

17. The telehandler was equipped with two stabilizers (also referred to as 

“outriggers”) that are located forward of the front wheels. The stabilizers were deployed, 
7 

which caused the telehandler’s front wheels to be elevated off the ground. (T. 33, Ex. C4).

18. Meadows’ foreman at the worksite was Ramiro Texeira (R.T.). (T. 44-45, 

156). R.T. was the only person at the worksite that Meadows had certified to operate the 

telehandler. (T. 44). R.T. had put the telehandler into the position that existed when the 

CO entered the worksite. (T. 60). When the CO entered the worksite, R.T. was about 

194 feet away from the telehandler in the building’s parking lot. (T. 55). R.T. told the 

CO that he could better observe the employees on the roof from that location. (T. 44-47, 

58-59, 64; Exs. C-8, C-13). 

19. The operator’s position of the telehandler (the “cab”) was unoccupied. (Ex. 

C-4). No person certified to operate the telehandler was within 25 feet of the telehandler 

while its fork holding the pallet of shingles was elevated over the roof. (T. 44). 

20. The employee nearest the telehandler was Leonardo Bonacenha2

 (L.B.). L.B.

was standing near the telehandler’s right rear wheel, within 25 feet of the telehandler. (T. 

59, 88-89, 139). L.B. was not certified to operate the telehandler. (T. 44). 

21. An aerial boom lift, Genie model S-60, was also in use when the CO arrived 

at the worksite. Two Meadows employees were in the lift-basket working at eave-level. 

(T. 41-42). The aerial lift’s boom crossed underneath the telehandler’s extended boom. 

The two booms were about one foot apart at the closest point. (T. 38-39; Exs. C-5 & C6). 

 2 This person’s surname is spelled “Bonacida” in the transcript (T. 88, 159), but 

counsel for the Secretary states that this is a misspelling and that the correct spelling is 

“Bonicenha.” (Sec’y Reply Brief, p. 1; Joint Prehearing Statement, p. 6). 
8 

22. If the telehandler’s boom had lowered to a shallower angle while the aerial 

lift’s boom remained stationary, the telehandler’s boom would have contacted aerial lift’s 

boom. (Exs. C-4, C-5, C-6; T. 40). 

23. If the telehandler’s three-stage extended boom had retracted while the aerial 

lift’s boom remained stationary, the telehandler’s fork would have eventually contacted 

the aerial lift’s boom. (Ex. C-5, C-7; T. 40). 

Discussion

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

Occupational Safety and Health Act (Act) upon Meadows’ timely contest of the Citation 

and proposed penalty. 29 U.S.C. § 659(c). At all relevant times, Meadows was an 

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

U.S.C. § 652(5). 

To prove a violation of an OSHA standard, the Secretary must establish that (1) 

the cited standard applies, (2) there was a failure to comply with the cited standard, (3) 

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

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

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

691 (D.C. Cir. 1980). 

Citation Item 1 -- Roof Anchor Installation, § 1926.502(d)(15)

The cited standard, § 1926.502(d)(15), requires in pertinent part that 

“[a]nchorages used for attachment of personal fall arrest equipment shall be ... capable of 

supporting at least 5,000 pounds ... per employee attached.”
9 

Applicability of § 1926.502(d)(15) 

The cited standard applies. Subpart M of 29 C.F.R. Part 1926 “sets forth 

requirements and criteria for fall protection in construction workplaces.” 29 C.F.R. 

§ 1926.500(a)(1). Section 1926.501(b)(1) requires employers to protect employees on a 

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

above a lower level “from falling by the use of guardrail systems, safety net systems, or 

personal fall arrest systems.” The unprotected side or edge here was about 25 feet above 

the ground level. Meadows elected to provide fall protection by using a personal fall 

arrest system for each employee. (T. 148-50). Section 1926.502(d) sets forth the 

requirements that a personal fall arrest system must meet, and includes the cited standard 

pertaining to anchorages. “Anchorage” is a defined term that “means a secure point of 

attachment for lifelines, lanyards or deceleration devices.” 29 C.F.R. § 1926.500(b). 

Meadows was using the Werner model A210400 roof anchor as such an “anchorage,” so 

the cited standard pertaining to anchorages applies. 

Compliance with § 1926.502(d)(15) 

Section 1926.502(d)(15) requires that “[a]nchorages used for attachment of 

personal fall arrest equipment ... be ... capable of supporting at least 5,000 pounds ... per 

employee attached.”3

The Citation item alleges that Meadows violated this standard in that “fall 

 3 Section 1926.502(d)(15) provides an alternative means of compliance that is not 

at issue here. That alternative requires that anchorages used for attachment of personal 

fall arrest equipment be “designed, installed, and used ... (i) as part of a complete 

personal fall arrest system which maintains a safety factor of at least two; and (ii) under 

the supervision of a qualified person.” 29 C.F.R. § 1926.502(d)(15). 
10 

protection anchors were not properly secured to the peak of the roof.” The Secretary’s 

theory of this alleged violation was that both flanges of the two-flanged Wenger model 

A210400 anchor had to be secured to the roof in order for the anchor to support at least 

5,000 pounds. (T. 14-15; Sec’y Br. 2-3). The Secretary argues that the evidence shows 

multiple instances of only one flange being secured.

4

 

 

4 Meadows filed a motion in limine to preclude the admission of evidence that 

more than one worker had been tethered to a single anchor, arguing that such a theory of 

the alleged violation would be beyond the scope of the Citation’s description of the 

alleged violation that the “anchors were not properly secured to the peak of the roof.” A 

ruling on the motion was reserved, and the Secretary was allowed to present evidence 

that more than one worker had been secured to a single roof anchor. (T. 13-16, 69-70). 

Meadows is correct in its contention that this theory of the violation is outside the 

scope of the Citation’s description of the alleged violation. As the CO testified, his 

concern during the inspection “was the installation of the anchor” (T. 66), and this is 

consistent with the Citation’s description of the alleged violation that roof anchors “were 

not properly secured.” An improperly secured anchor is distinctly different from an 

anchor that may be properly secured, but improperly utilized. The Secretary never 

moved to amend the Citation to allege either in the alternative or as an additional alleged 

violation that the standard had been violated because more than two employees were 

tethered to a single anchor. Moreover, post-hearing sua sponte amendment would be 

improper because the Respondent very plainly did not consent to trying the issue. Cf.

McWilliams Forge Co., Inc., 11 BNA OSHC 2128, 2129 (No. 80-5868, 1984) (finding 

post-hearing amendment of pleadings pursuant to Fed. R. Civ. P. Rule 15(b) “is proper 

only if two findings can be made – that the parties tried an unpleaded issue and that they 

consented to do so”); Brand Energy Solutions, LLC, 25 BNA OSHC 1386, 1390, n. 6 

(No. 09-1048, 2015) (declining to amend citation sua sponte on discretionary review of 

judge’s decision). Accordingly, this additional theory of the violation of § 

1926.501(d)(15) is not properly considered. 

Even if this additional theory of responsibility were within the scope of the 

Citation’s description of the alleged violation, the Secretary would have failed to prove 

by a preponderance of the evidence that more than one worker had been tethered to a 

single anchor. There is no indication that the CO discerned this alleged violative 

condition while inspecting the worksite. (T. 99). Rather, it appears likely that the CO 

concluded that more than one worker had been tethered to a single anchor only after he 

had studied photographs that he had taken from ground level during the inspection. (See
11 

A preponderance of the evidence establishes that the roof anchor depicted in 

Exhibit C-2 at the peak of the roof (about an arm’s length away from the worker sitting 

with his right elbow resting on his right knee) was a Werner model A210400 two-flanged 

hinged roof anchor.5

 

T. 15). The CO testified that he believed certain photographs that he took depict more 

than one worker being tethered to a single anchor. (T. 69-70). However, these 

photographs are far from definitive and by themselves are insufficient to establish by a 

preponderance of the evidence that more than one worker was tethered to any single roof 

anchor. (Ex. C-3; T. 69-70, 148-49, 167). 

5 Pursuant to a pretrial scheduling order, Meadows was required to provide the 

following information to the Secretary about four weeks before the hearing: “Identify the 

manufacturer of any fall protection anchors that Respondent was utilizing on August 21, 

2014 on the peak of the roof at 40 Bradley Boulevard, Haverhill, MA, and provide copies 

of manufacturer’s manual and instructions for the use of such anchors.” See Commission 

Rule 208, 29 C.F.R. § 2200.208 (providing that in Simplified Proceedings, discovery 

“will only be allowed under the conditions and time limits set by the Judge.”) 

Pursuant to that directive, Meadows informed the Secretary that the manufacturer 

of the roof anchors was the Werner Company. (T. 107, 177). Meadows, however, did 

not have the manufacturer’s manual for the roof anchor in its possession, and thus did not 

provide the Secretary with any manufacturer’s manuals or instructions. (T. 107, 170-71). 

Because Meadows did not provide the Secretary with any manual or instructions, 

an official from OSHA’s regional office in Boston contacted the manufacturer and 

obtained directly from the manufacturer three separate user instructions for various 

Werner Company roof anchors, one of which was for model A210400. Before the 

hearing, the Secretary’s attorney provided Meadows’ attorney with complete copies of all 

three of these user instructions. (T. 113). A part of the user instructions for model 

A210400 was received in evidence as Exhibit C-14. (T. 110-13). 

CO Braile testified that the only Werner Company anchor that resembled the 

anchor depicted in the photograph in Exhibit C-2 was model A210400. (T. 72-77). Even 

though Meadows’ owner, Mr. Michael Meadows, testified to having “checked the specs 

on the anchors,” Meadows did not introduce any evidence that the hinged anchor 

depicted in Exhibit C-2 was something other than Werner model A210400. (T. 145). If 

there were any such evidence to present, it was peculiarly within Meadows’ power to 

produce. Cf. CCI, Inc., 9 BNA OSHC 1169, 1174 (No. 76-1228, 1980) (noting that when 

a party has evidence but does not present it, it may be reasonably inferred that the 
12 

The manufacturer’s “User Instructions” for model A210400 describe the roof 

anchor’s “Rated Capacity” as follows: 

Rated Capacity 

1. Capacity: 310 lbs. For one person with a combined 

weight (person, clothing, tools, etc.) of not more than 

310 lbs. Only one personal protective system may be 

connected to the roof anchor at any time. 

2. Minimum Breaking Strength: 5000 lbs. when loaded 

within the loading direction limitations. This anchor 

satisfies OSHA and ANSI strength requirements 

when used in accordance with OSHA, ANSI local 

regulations and the manufacturer’s instructions. 

(Ex. C-14, p. 4). 

The User Instructions direct users to install six screws per flange, meaning that 12 

screws must be used to secure the two flanges. (Ex. C-14, p. 2). The User Instructions 

contain the following warning, set off in distinctive bold face type: “All 12 screws must 

be installed. If the roof anchor is not installed properly, it will not hold the rated loads 

and serious injury or death could occur.” (Ex. C-14, p. 3). 

One employee had attached his lanyard to the Werner model A210400 roof 

anchor depicted on the left side of Exhibit C-2 that had only one of its two flanges 

secured. (Ex. C-2, T. 67, 78, 170). Because only one of the anchor’s two flanges was 

secured, that anchor would not hold its rated capacity of 5,000 pounds (Ex. C-14), and 

 

evidence would not help that party’s case), aff’d 688 F.2d 88 (10th Cir. 1982). 

For these reasons, the Secretary has proven by a preponderance of the evidence 

that the roof anchor depicted on the left side of the photograph at Exhibit C-2 was Werner 

Company model A210400. 
13 

thus was violative of the cited standard.6

Employee Access and Employer Knowledge 

The Meadows employee whose lanyard was attached to the improperly secured 

anchor, as depicted in the photograph at Exhibit C-2, was exposed to the violative 

condition. 

“Employer knowledge is established by a showing of employer awareness of the 

physical conditions constituting the violation.” Phoenix Roofing, Inc., 17 BNA OSHC 

1076, 1079 (No. 90-2148, 1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 

1996). “It need not ... be shown that the employer understood or acknowledged that the 

physical conditions were actually hazardous.” Id.

Meadows had knowledge of the violative condition. The owner of Meadows, Mr. 

Michael Meadows, indicated that it was common practice for Meadows employees to 

secure only one flange of the two-flanged anchor, testifying, “We’ve been doing it for 

years.” (T. 170). Moreover, when the CO arrived at the worksite, the foreman (R.T.) had 

positioned himself at a location on the ground so that he could observe the workers on the 

 6 The Secretary argues that the roof anchor on the roof peak depicted in Exhibit 

C-3 is also a Werner model A210400 and that this anchor has only one of its two flanges 

secured. (Sec’y Br. 3; T. 68-69). It is apparent from a comparison of the anchor depicted 

in the photograph at Exhibit C-3 and the depiction of Werner model A210400 shown in 

the manufacturer’s user instructions at Exhibit C-14, that the anchor depicted in the 

Exhibit C-3 looks different from the anchor depicted in the User Instructions at Exhibit 

C-14. According to the Respondent’s owner, Mr. Michael Meadows, more than one type 

of roof anchor was being used at the worksite. (T. 177). Scrutiny of the photograph at 

Exhibit C-3 makes it apparent that the anchor depicted there is probably some model 

other than A210400 as depicted in Exhibit C-14. The evidence is therefore insufficient to 

establish that the anchor depicted in Exhibit C-3 is Werner model A210400, and thus 

there is no evidence that the anchor depicted in Exhibit C-3 was not capable of 

supporting at least 5,000 pounds as required by the cited standard. 
14 

roof “for production and quality purposes.” (T. 59, 64). The foreman had ample 

opportunity to observe that only one flange of the Werner anchor model A210400 

depicted in Exhibit C-2 was secured. See Rawson Contractors Inc., 20 BNA OSHC 

1078, 1080-81 (No. 99-0018, 2003) (imputing a foreman’s knowledge to the employer). 

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

that Meadows violated § 1926.502(d)(15) in the manner alleged in item 1 of the Citation. 

Classification of Violation of § 1926.502(d)(15) 

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

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

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

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

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

If the roof anchor had failed and the worker had fallen 25 feet to the ground,

serious injury or death could have resulted. (T. 42). The violation is correctly classified 

as “serious.” 

Affirmative Defenses to Violation of § 1926.502(d)(15) 

Meadows timely interposed the affirmative defense of infeasibility to this Citation 

item.7

 An employer who raises the affirmative defense of infeasibility has the burden to 

 7 Meadows also raised the affirmative defense of unpreventable employee 

misconduct but has not argued this affirmative defense in its post-hearing brief. The 

parties were informed by order dated February 6, 2015, that claims and defenses not 

argued in their respective principal briefs would be deemed abandoned. See Ga.-Pac. 

Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991). The other matters that Meadows 

raised in its amended statement of affirmative defenses to this Citation item are matters 

that merely negate an element of the Secretary’s case, and thus are not truly in the nature 
15 

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

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

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

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

Meadows argues that the evidence showed that it was infeasible for both flanges 

of the two-flanged roof anchor to be secured for the duration of the roof installation, 

because as new shingles were installed up to the roof peak, “Meadows was required to lift 

that flange to shingle the area where the flange was previously affixed.” (Resp. Br. 5). 

The Respondent’s owner, Mr. Michael Meadows, testified that during an earlier phase of 

the roof installation, both flanges of the two-flanged anchor shown in Exhibit C-2 had

been secured, but as the shingle installation approached the peak of the roof, one of the 

two flanges had to be unsecured. He testified: 

Q So Meadows had both flanges on these roof anchors 

installed throughout the first public -- the first street side of 

the roofing project? 

A Yes. We didn't have to take them down after we did the 

front.

Q Do you know why one flange may have been lifted up 

on any of these anchors? 

A Because as the picture shows, they're bringing the 

shingle up, so they left the other side screwed down. They 

bring the shingle up, and then we have to cut that, and then 

we'll put it back down till after we do the ridge. The 

shingles were going on right then, not the ridge. The vent 

was not happening, at that point. The shingle has to go all 

the way up to the very top. 

 

of affirmative defenses. See United States Postal Serv., 24 BNA OSHC 2066, 2068 (No. 

08-1547, 2014). 
16 

Q Is it feasible to have both flanges screwed down? 

A You can't.

Q Why is that? 

A Because you'll never get the shingle underneath it.

(T. 147). 

Meadows has not carried its burden to establish the affirmative defense for at least 

three reasons. First, Meadows presented no evidence that it was infeasible to comply 

with § 1926.502(d)(15) by the alternative method of compliance that is described in 

footnote 3, supra. 

Second, Mr. Meadows testified that there are single-flange anchors rated to 

support at least 5,000 pounds that Meadows had actually used during this project. (T. 

169, 177; Ex. R-4). Meadows presented no evidence that it would have been infeasible to 

use such a single-flanged anchor instead of the double-flanged model A210400 to 

overcome the technical problem that Mr. Meadows described in his testimony. 

Third, the Citation item states that the alleged violation was “corrected during 

inspection.” This is inherently contradictory to the assertion that it was infeasible to 

correct the violative condition that existed when the CO arrived. (No evidence was 

presented that the Citation erroneously stated that the alleged violative condition had 

been corrected during the inspection.) 

Meadows has failed to present sufficient evidence to establish the affirmative 

defense of infeasibility.
17 

Citation Item 2 – Unattended Industrial Truck, § 1926.602(c)(1)(vi) 

Item 2 of the Citation alleges that Meadows violated § 1926.602(c)(1)(vi) because 

Meadows’ telehandler “was left unattended with the hoisting boom fully extended over 

the roof of a two story commercial building with a pallet of roof shingles on the forks.” 

The cited standard, § 1926.602(c)(1)(vi), provides: 

(c) Lifting and hauling equipment (other than 

equipment covered under subpart N of this part). (1) 

Industrial trucks shall meet the requirements of § 1926.600 

and the following: 

.... 

(vi) All industrial trucks in use shall meet the applicable 

requirements of design, construction, stability, inspection, 

testing, maintenance, and operation, as defined in American 

National Standards Institute B56.1-1969, Safety Standards 

for Powered Industrial Trucks. 

Subparagraph (c)(1)(vi) expressly makes the “operation” requirements of American 

National Standards Institute (ANSI) consensus standard B56.1-1969, “Safety Standards 

for Powered Industrial Trucks,” applicable to “[a]ll industrial trucks in use” in 

construction. 

One of the operation requirements of ANSI standard B56.1-1969 pertinent here is 

subsection E of section 603, which provides as follows: “When leaving a powered 

industrial truck unattended, load engaging means shall be fully lowered, controls shall be 

neutralized, power shut off, brakes set, keys or connector plug removed. Block wheels if 

truck is parked on an incline.” (Ex. C-18, p. 2). 

Another of the ANSI standard’s operation requirements pertinent here is section 

602, which provides in part as follows: “Only trained and authorized operators shall be 
18 

permitted to operate a powered industrial truck.” (Ex. C-18, p. 2). 

Section 1926.602(d), “Powered industrial truck operator training,” incorporates 

by reference general industry standard 29 C.F.R. § 1910.178(l). Powered Industrial 

Truck Operator Training (Final Rule), 63 Fed. Reg. 66238, 66274 (Dec. 1, 1998) (to be 

codified at 29 C.F.R. part 1926). Section 1926.602(d) thus makes the training 

requirements set forth in § 1910.178(l) applicable to operators of powered industrial 

trucks in construction. 

Section 1910.178(l) requires that employers “ensure that each powered industrial 

truck operator is competent to operate a powered industrial truck safely, as demonstrated 

by the successful completion of the training and evaluation specified in this 

paragraph (l).” This required training must “consist of a combination of formal 

instruction ..., practical training ..., and evaluation of the operator’s performance in the 

workplace.” § 1910.178(l)(2)(ii). The content of the required training is prescribed by 

§ 1910.178(l)(3). Employers are required to “certify that each operator has been trained 

and evaluated as required by this paragraph (l).” § 1910.178(l)(6). This certification must 

“include the name of the operator, the date of the training, the date of the evaluation, and 

the identity of the person(s) performing the training or evaluation.” Id.

Applicability of § 1926.602(c)(1)(vi) 

Meadows makes two separate arguments that § 1926.602(c)(1)(vi) does not apply. 

Meadows’ first argument is that the cited standard applies only to “earthmoving 

equipment” (and thus not to the telehandler, which is not earth moving equipment). 

Meadows bases this argument on paragraph (a) of § 1926.602, which is captioned 
19 

“Earthmoving equipment,” and subparagraph (a)(1), which states, “These rules apply to 

the following types of earthmoving equipment,” and then lists such equipment. Industrial 

trucks are not included in that list. 

This first argument is rejected. The descriptive heading for the whole of

§ 1926.602 is “Material handling equipment.”8 “Earthmoving equipment” is the caption 

for paragraph (a) of § 1926.602. The limiting introductory clause in subparagraph (a)(1) 

(“[t]hese rules apply to the following types of earthmoving equipment”) relates only to 

the rules contained in paragraph (a). In contrast, paragraph (c) bears the caption “Lifting 

and hauling equipment,” and subparagraph (c)(1) expressly establishes requirements for 

industrial trucks. 

It is undisputed that the telehandler is a “rough terrain forklift.” (T. 17). A 

“rough terrain forklift” is a type of “industrial truck.” (T. 63). Section 

1926.602(c)(1)(vi) applies to all industrial trucks in use in construction, including rough 

terrain forklift trucks like the telehandler. See OSHA Standard Interpretation letter dated 

November 27, 2001 (interpreting § 1926.602(c)(1)(vi) to be applicable to rough terrain 

forklifts);9 see also Powered Industrial Truck Operator Training (Final Rule), 63 Fed. 

 8 Each section in the Code of Federal Regulations has “a brief descriptive 

heading, preceding the text, on a separate line.” 1 C.F.R. § 21.16(b). These descriptive 

headings are useful for identifying the purpose of a standard. Nonetheless, in 

determining the scope of a standard, the Commission looks “primarily to the standard 

itself rather than its caption.” Chesapeake Operating Co., 10 BNA OSHC 1790, 1793 

(No. 78-1353, 1982).

9 The Secretary appended to his post-hearing brief a copy of this OSHA 

interpretation letter in the form in which it has been published on OSHA’s public web 

site.
20 

Reg. at 66241 (to be codified at 29 C.F.R. parts 1910, 1915, 1917, 1918 and 1926)

(describing “rough terrain forklift trucks” as a type of industrial truck to which training 

requirements of § 1910.178(l) apply). Meadows’ first argument that the cited standard is 

applicable only to “earthmoving equipment,” and thus is not applicable to the telehandler, 

has no merit. 

Meadows’ second argument that the cited standard does not apply relates to ANSI 

consensus standard B56.6-2005, “Safety Standard for Rough Terrain Forklift Trucks.” 

That ANSI standard applies only to rough terrain forklift trucks, such as Meadows’

telehandler. (Ex. R-1). Meadows argues that this more recently published ANSI 

standard is the only consensus standard applicable to the telehandler.10 Meadows seems 

to argue that the cited OSHA standard does not apply because it does not expressly adopt 

the requirements of the 2005 ANSI standard applicable to rough terrain forklift trucks. 

(Resp. Br. 14-16). This argument is rejected. 

The requirements of ANSI standard B56.6-2005 appear not to have been 

expressly adopted by any OSHA standard. In contrast, § 1926.602(c)(1)(vi) expressly 

makes the requirements of ANSI standard B56.1-1969 applicable to all types of powered 

industrial trucks in use in construction, including a rough terrain forklift truck like the 

telehandler involved here. See Powered Industrial Truck Operator Training (Final Rule), 

63 Fed. Reg. at 66255 (stating that the coverage of § 1910.178 is the equivalent of the 

 

10 In contrast, ANSI standard B56.1-1969 was first adopted by the OSHA general 

industry standards in 1971 (36 Fed. Reg. 10466, 10613) (to be codified at 29 C.F.R. part 

1910), and was adopted by the OSHA construction standards in 1979 (44 Fed. Reg. 8577, 

8647) (to be codified at 29 C.F.R part 1926). 
21 

coverage of ANSI standard B56.1-1969, and that § 1910.178 applies to industrial trucks

that are covered by more specific consensus standards, including standard B56.6 for

rough terrain forklift trucks); Powered Industrial Truck Operator Training (Final Rule), 

63 Fed. Reg. at 66241 (describing standard B56.6 applicable to rough terrain forklift 

trucks as a “supplementary” standard to the broader standard B56.1-1969). This second 

argument that the cited standard is not applicable has no merit. 

Because the telehandler is an industrial truck that was being used in construction, 

§ 1926.602(c)(1)(vi) applies. 

Compliance with § 1926.602(c)(1)(vi) 

The Citation item alleges that Meadows failed to comply with

§ 1926.602(c)(1)(vi) because the telehandler “was left unattended with the hoisting boom 

fully extended over the roof of a two story commercial building with a pallet of roof 

shingles on the forks.” As discussed below, the Secretary has proven the facts alleged 

and has thereby established that Meadows failed to comply with the cited standard. 

Subsection E of section 603 of ANSI standard B56.1-1969 specifies that “[w]hen 

leaving a powered industrial truck unattended, load engaging means shall be fully 

lowered.” When the CO arrived at the worksite, the telehandler’s load-engaging means

was not fully lowered. Rather, the telehandler’s extensible boom and attached fork was 

supporting a pallet of shingles more than 25 feet in the air. Compliance with ANSI 

standard B56.1-1969 required that the telehandler not be left “unattended” in that 

position. 

Commission precedent holds that an industrial truck is deemed “unattended” 
22 

within the meaning of section 602, subsection E, of ANSI standard B56.1-1969 when its 

operator is “25 feet or more away from the vehicle which remains in his view,” as is 

specified by the general industry standard for “powered industrial trucks” at 29 C.F.R. 

§ 1910.178(m)(ii). A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 2001 (No. 92-

1022, 1994) (relying on 29 C.F.R. § 1910.178(m)(ii) to define the word “unattended” as 

used in ANSI standard 56.1-1969). 

The Secretary argues that the telehandler was left unattended because the foreman 

(R.T.) was the only trained and authorized operator of the telehandler present, and that he 

was about 194 feet away from it when the CO entered the worksite. Meadows argues 

that the telehandler was not left unattended because L.B. was standing within 25 feet of 

it. (Resp. Br. 17). 

The foreman, R.T., told the CO that he was the only person at the worksite who 

was “qualified and authorized to operate” the telehandler. (T. 44). The foreman also told 

the CO that another Meadows employee authorized to operate the telehandler had been 

present, but that he had departed the worksite about two hours before the CO arrived. (T. 

44). 

Meadows’ owner, Mr. Michael Meadows, testified that Meadows provides 

training on heavy equipment such as telehandlers, excavators, bulldozers, and backhoes, 

and that “each guy is expected to know how to operate every piece.” (T. 135). He 

testified further that “most” of his employees “get operational experience on heavy 

equipment ... including the telehandler.” (T. 135). Mr. Meadows testified that he 

believed all of the employees present at the worksite when the CO arrived “had enough 
23 

training to step in” if an emergency occurred. (T. 135). 

When Mr. Meadows was asked whether he had any documents pertaining to the 

training of the employee who was standing next to the telehandler (L.B.), he testified, “I 

have sign-in sheets for United Safety that they sign in on.” (T. 170). According to Mr. 

Meadows, United Safety is a company that Meadows uses to provide training and twice

yearly gives “a four-hour safety talk of how to – what’s the industry standards, what’s 

happening as far as the problems out there, law changes, and so forth.” (T. 129). There 

was no evidence that L.B. received the training required by § 1910.178(l) on the 

operation of the telehandler either from United Safety or from Meadows. There was thus 

no evidence that any employees who were present during the CO’s inspection (except for 

R.T.) had received the operator training prescribed by § 1910.178(l) on the telehandler. 

Nor was there any evidence presented that Meadows had issued a certification of operator 

training and evaluation as required by § 1910.178(l)(6) for any employee at the worksite 

other than R.T. 

The finding of fact that the foreman (R.T.) was the only employee present who 

was trained and authorized to operate the telehandler is based on the CO’s testimony 

regarding what the foreman (R.T.) told the CO. (T. 44). 

The CO’s testimony about what R.T. said to the CO was credible and reliable. 

Although English was a second language for R.T. (his native language was Portuguese), 

the CO perceived R.T. to be fluent in English and he did not perceive R.T.’s English 

language skills to impede their effective communication. (T. 102, 151). 

R.T. was not called to testify. No evidence was presented that controverted the 
24 

CO’s testimony about what R.T. had said to him. If any evidence existed that the CO had 

somehow misunderstood or misremembered what R.T. said, it was incumbent upon 

Meadows to present it.11 

The CO’s testimony of what the foreman (R.T.) said to him is not hearsay 

evidence pursuant to Fed. Rule Evid. Rule 801(d)(2)(D), which provides that a statement 

is not hearsay if it is offered against a party opponent and “was made by the party’s agent 

or employee on a matter within the scope of that relationship and while it existed.” The 

evaluation of the reliability of an employee’s statement that is admissible under Rule 

801(d)(2)(D) was addressed in Regina Constr. Co., 15 BNA OSHC 1044, 1048 (No. 87-

1309, 1991): 

Although admissions under Rule 801(d)(2)(D) are not 

inherently reliable, there are several factors that make them 

likely to be trustworthy, including: (1) the declarant does 

not have time to realize his own self-interest or feel 

pressure from the employer against whom the statement is 

made; (2) the statement involves a matter of the declarant's 

work about which it can be assumed the declarant is wellinformed and not likely to speak carelessly; (3) the 

employer against whom the statement is made is expected 

to have access to evidence which explains or rebuts the 

matter asserted. 4 D. Louisell & C. Mueller, Federal 

 11 At the outset of the hearing, the attorney for Meadows indicated that two 

Meadows employees who had been onsite during the CO’s inspection had traveled to 

Brazil to work there during the winter, but the attorney did not specifically identify who 

those two employees were. (T. 6). Meadows did not request a continuance of the 

hearing due to the unavailability of an essential witness. It is also worth noting that since 

this matter was heard in Simplified Proceedings, the Federal Rules of Evidence were not 

applicable, and thus a written statement from R.T. addressing what he said to the CO 

during the inspection could have been offered and received in evidence. Commission 

Rule 209(c), 29 C.F.R. § 2200.209(c). 
25 

Evidence § 426 (1980 & Supp.1990). [12] 

All three enumerated factors described above in Regina Constr. Co. weigh 

heavily in support of the conclusion that R.T.’s statement to the CO is likely to be 

trustworthy, and proves that R.T. was the only person onsite trained and authorized to 

operate the telehandler. 

R.T. was about 194 feet away from the telehandler when the CO arrived at the 

worksite. Because the only person on the worksite who was certified to operate the 

telehandler was more than 25 feet away from the telehandler while its load-engaging 

means were elevated, Meadows failed to comply with the cited standard in the manner 

alleged by the Citation item. 

Employee Access to Violative Condition 

The Secretary argues that the two workers in the lift basket of the aerial boom lift

and the workers on the roof were exposed to the violative condition. (Sec’y Br. 7-8). 

To establish employee access to a hazard, “the Secretary must show either that 

Respondent's employees were actually exposed to the violative condition or that it is 

‘reasonably predictable by operational necessity or otherwise (including inadvertence), 

that employees have been, are, or will be in the zone of danger.’” S&G Packaging Co.,

 

12 In 2011, Fed. R. Evid. 801(d)(2) was amended so that it no longer calls an out 

of court statement of a party opponent an “Admission by party-opponent,” but instead 

calls it “An Opposing Party’s Statement.” The advisory committee recommended this 

change on the rationale that “[t]he term ‘admissions’ is confusing because not all 

statements covered by the exclusion are admissions in the colloquial sense – a statement 

can be within the exclusion even if it ‘admitted’ nothing and was not against a party’s 

interest when made.” 2011 Advisory Committee note on technical changes to Fed. R. 

Evid. 801(d)(2). 
26 

19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (quoting Fabricated Metal Prods., 18 

BNA OSHC 1072, 1074 (No. 93-1853, 1997)). “The zone of danger is determined by the 

hazard presented by the violative condition, and is normally that area surrounding the 

violative condition that presents the danger to employees which the standard is intended 

to prevent.” RGM Construction Co., 17 BNA OSHC 1229, 1233 (No. 91-2107, 1995). 

The two workers in the aerial lift were exposed to the violative condition. If the 

telehandler’s boom and its attached fork had unexpectedly fully lowered or retracted, the 

boom or fork would have struck the extended boom of the aerial lift, which was 

supporting two employees who were working at eave-level. This could have resulted in 

those workers falling to the ground and suffering serious injury or death. (T. 42). 

The workers on the roof who were retrieving new shingles from the fork of the 

telehandler were also exposed to the violative condition. Any unexpected lowering of the 

boom could have resulted in the fork striking and injuring the employee. (See Ex. C-2).

Meadows argues that no employees were exposed to the violative condition. 

Meadows asserts that the unattended telehandler did not present any hazard because (1) 

the vehicle itself was immobilized because its stabilizers were deployed, and (2) the 

boom would not move even if there was an equipment failure because the boom had “an 

automatic, metal lock which prevents the boom from lowering or moving forward due to 

a hydraulic failure.” (Resp. Br. 19). 

Meadows’ argument is rejected. The evidence is insufficient to support a finding 

of fact that it was impossible for the telehandler’s boom to move in the event of a 

hydraulic failure or other failure. Although Mr. Michael Meadows testified to this effect
27 

(T. 132-34), his testimony was uncorroborated by any information from the manufacturer 

or from any other authoritative source regarding the design and engineering of the 

telehandler’s boom and the effect of a failure on the boom’s functioning. While Mr. 

Meadows seems to have held the sincere belief that the boom could not move in the event 

of an equipment failure, his uncorroborated testimony alone on that subject is not weighty 

enough to establish by a preponderance of the evidence that his sincerely held belief is 

accurate. 

Second, even if Mr. Meadows was correct that the telehandler’s boom could not 

move in the event of a hydraulic failure, the cited standard is a specification standard that 

presumes a hazard to exist if the terms of the standard are violated. A.L. Baumgartner, 16 

BNA OSHC at 2001 (observing that § 1926.602(c)(1)(vi) “does not require separate 

proof of a hazard,” but rather “gives notice of the proscribed conduct and contemplates the 

existence of a hazard when its terms are not met”); see also Joseph J. Stolar Constr. Co., 9 

BNA OSHC 2020, 2024 n.9 (No. 78-2528, 1981) (noting that “when a standard 

prescribes specific means of enhancing employee safety, a hazard is presumed to exist if 

the terms of the standard are violated”). Even the newer consensus standard B56.6-2005 

(which Meadows has argued is the only consensus standard that is applicable to the 

telehandler) requires that a rough terrain forklift truck’s load-engaging means be fully 

lowered when the equipment is left unattended. ANSI B56.6-2005, section 6.2.12(g). 

(Ex. R-1). 

The preponderance of the evidence establishes that employees had access to the 

presumed hazard presented by the violative condition of the telehandler being left 
28 

unattended with its load-engaging means elevated. 

Employer Knowledge of Violative Condition 

Meadows’ foreman onsite knew that he was the only person present who was 

certified to operate the telehandler, and he knew that he was more than 25 feet away from 

the telehandler when its load-engaging means were elevated over the roof. The 

foreman’s knowledge is imputed to the employer, and establishes the “employer 

knowledge” element of the Secretary’s burden of proof. 

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

that Meadows violated § 1926.602(c)(1)(vi) in the manner alleged in item 2 of the 

Citation.13

Classification of Violation of § 1926.602(c)(1)(vi) 

If the telehandler’s boom had unexpectedly lowered or retracted, it would have 

come into contact with the extended boom of the aerial lift, which was supporting two 

employees who were working at eave-level. This could have resulted in those two 

workers falling to the ground and suffering serious injury or death. (T. 42). The boom 

and fork could also have struck and injured employees working on the roof’s surface. 

The violation is correctly classified as “serious.” 

Penalty Assessment

The permissible range of penalties for a serious violation is from no penalty to 

$7,000. 29 U.S.C. § 666(b). The Commission and its judges conduct de novo penalty 

 13 Meadows raised the affirmative defense of unpreventable employee misconduct 

to Citation item 2, but has not argued this affirmative defense in its brief, so that 

affirmative defense is deemed abandoned. (Resp. Br. 19-20). See footnote 7, supra. 
29 

determinations and have full discretion to assess penalties based on the facts of each case 

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-

0239, 1995) aff’d, 73 F.3d 1466 (8th Cir. 1996); Allied Structural Steel, 2 BNA OSHC 

1457, 1458 (No. 1681, 1975). 

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

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

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

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

is the primary consideration among these four statutory criteria, and is determined by 

“such matters as the number of employees exposed, the duration of the exposure, the 

precautions taken against injury, and the likelihood that any injury would result.” J.A. 

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

The Secretary seeks a penalty of $5,390.00 for each of the violations, for a total 

proposed penalty of $10,780.00. The Secretary determined that a resulting injury from 

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

probability of an injury resulting from each of the violations was “greater”14 (as opposed 

to “lesser”). (T. 119-20). The proposed penalty was the product of an automated process 

that generates a proposed penalty based upon data input on certain parameters. (T. 119, 

123-24). The proposed penalties were increased for “history” because Meadows had 

been cited for a “higher severity/greater probability” violation within the previous five

 14 The transcript erroneously reflects the word “grader” being spoken, when in 

actuality the word being spoken was “greater.” (T. 119, lines 1, 12, 22 & 25).
30 

years, although the record does not reflect the percentage of the increase. (T. 119). The 

proposed penalties were reduced due to Meadows’ smaller size, although again the record 

does not reflect the percentage of that reduction. (T. 119). 

Meadows notes that in its 37 years of operations it has had only one accident, and 

that this record has earned it a very favorable insurance rating. (Resp. Br. 2). “The 

absence of a history of accidents ..., while irrelevant to whether a violation exists, may be 

considered in determining gravity.” Monitor Constr. Co., 16 BNA OSHC 1589, 1595 n.8 

(No. 91-1807, 1994) citing Brennan v. Smoke-Craft, Inc., 532 F.2d 843 (9th Cir. 1976). 

As discussed above in connection with the “serious” classifications, in the event 

of an accident both violations could result in serious injury or death. This supports the 

characterization of “higher” severity of resulting injury. 

As to the “greater probability” classification for the improperly secured roof 

anchor, it was apparently a common practice for Meadows’ employees to secure only one 

of the two flanges of anchor model A210400 to the roof. This practice was contrary to 

the manufacturer’s user instructions and warning that both flanges had to be secured for 

the anchor to support the minimum weight required by § 1926.502(d)(15). In view of 

this common practice, it is reasonable to conclude that the probability that an accident 

could occur was “greater.” 

With regard to the “greater probability” classification as to the telehandler, as is 

discussed above, Mr. Meadows’ testimony was insufficiently weighty by itself to 

establish that the boom would not lower or retract even in the event of some kind of 

equipment failure. Given that both of the consensus standards presented in evidence 
31 

require that the telehandler’s boom be lowered when unattended, it is reasonable to 

conclude that the probability that an accident could occur for failing to do so was 

“greater.” 

The evidence supports a reduction of the penalty to account for Meadows’ 

relatively small size.

The evidence is insufficient to support an increased penalty based upon 

Meadows’ compliance history. No documentary evidence was presented to establish that 

any citation previously issued to Meadows had become a final order. The undersigned 

takes notice of the Commission’s records in Meadows Constr. Co., LLC, No. 12-2142, 

which involves alleged violations by Meadows in July 2012, but upon which there has 

been no final order of the Commission because the judge’s decision in that matter is 

presently pending before the Commission on discretionary review. 29 U.S.C. § 661(j); 

29 C.F.R. § 2200.91; cf. Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1799 (No. 83-

308, 1986) (holding the “failure to direct a particular citation item for review does not 

make the judge’s disposition of that item a final order of the Commission”), overruled on 

other grounds by R & R Builders, Inc., 14 BNA OSHC 1844 (No. 88-282, 1990). 

No adjustment for good faith is appropriate in view of Meadows’ apparent 

disregard (1) of the manufacturer’s installation instructions for the roof anchor, and (2) 

the requirement set forth in both the controlling OSHA standard (B56.1-1969) and the 

newer supplemental consensus standard (B56.6-2005, which Meadows has asserted is the 

only applicable standard) that the telehandler’s boom be fully lowered when left 

unattended. 
32 

Considering these factors, a penalty of $4,750.00 for each violation for a total 

penalty of $9,500.00 is appropriate. 

ORDER

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

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

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

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

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

1. Citation 1, Item 1 for a serious violation of 29 C.F.R. § 1926.502(d)(15) is 

AFFIRMED and a penalty of $4,750 is ASSESSED; and

2. Citation 1, Item 2, for a serious violation of 29 C.F.R. § 1926.602(c)(1)(vi) is

AFFIRMED and a penalty of $4,750 is ASSESSED.

SO ORDERED.

/s/ 

WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: September 15, 2015