UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRE ARY OF LABOR, 

 Complainant,

DOCKE NO. 18-1306 

 v. 

KEENAN, HOPKINS, SCHMID AND 

S OWELL CON RAC ORS, INC. dba 

KHS&S CON RAC ORS,

 Respondent. 

Appearances: 

Summer Silversmith, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, CO 

For Complainant 

Kristin R.B. White, Esq., Fisher and Phillips, LLP, Denver, CO 

For Respondent 

Before: Administrative Law Judge Brian A. Duncan 

DECISION AND ORDER 

Procedural History 

An employee was injured while working from an aerial lift basket at Respondent’s 

worksite in Littleton, Colorado on July 2, 2018. As a result, OSHA conducted an investigation. 

During the worksite inspection, Compliance Safety and Health Officer (“CSHO”) Shane Lane 

learned that employees were climbing on, standing on, and working from the aerial lift basket 

guardrails to perform their work. Based on CSHO Lane’s investigation and recommendation, 

Complainant issued a Citation and Notification of Penalty, alleging Respondent committed a 

single, serious violation of 29 C.F.R. § 1926.453(b)(2)(iv), and proposed a penalty of $5,543. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Respondent timely contested the Citation, which brought the matter before the Occupational 

Safety and Health Review Commission pursuant to Section 10(c) of the Act. 

A trial was conducted in Denver, Colorado on April 9, 2019. Four witnesses testified at 

trial: (1) Fernando Ruiz Moya, former employee of Respondent; (2) Martin Rojas, current 

employee of Respondent; (3) CSHO Shane Lane; (4) Christian Mancera, Respondent’s Regional 

Safety Engineer. ( r. 29, 81, 127, 201). Both parties timely submitted post-trial briefs for the 

Court’s consideration. 

Jurisdiction & Stipulations 

 he parties stipulated that the Commission has jurisdiction over this proceeding pursuant 

to Section 10(c) of the Act and that, at all times relevant to this proceeding, Respondent was an 

employer engaged in a business and industry affecting interstate commerce within the meaning 

of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). ( r. 18). See Slingluff v. OSHRC, 425 

F.3d 861 (10th Cir. 2005). he parties also stipulated to other factual matters, which were read 

into the record. ( r. 18-20). 

Factual Background 

In July of 2018, Respondent was engaged as a subcontractor to Hensel Phelps, helping 

construct a new building (“A LO facility”) on a Lockheed Martin campus in Littleton, 

Colorado. ( r. 19, 130). Respondent’s employees performed framing work and 

drywall/densglass installation. ( r. 19, 33, 133). While the parties agreed that the OSHA 

inspection resulted from an employee injury while working on an aerial lift, that accident is not 

the focus of the alleged violation in the case. ( r. 24, 84). Rather, CSHO Lane learned facts 

related to this alleged violation while he was onsite conducting his inspection. ( r. 84, 134). 

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Respondent’s employees Fernando Ruiz Moya (“Ruiz”) and Martin Rojas (“Rojas”) were 

assigned to install drywall/densglass1 to the exterior, upper levels of the building, from an aerial 

lift basket, on July 2, 2018. ( r. 33-34, 85, 164-165, 209; Exs. C-6, C-11). hey were working 

approximately 60-80 feet above the ground. ( r. 34, 71, 85). hey had been performing this 

type of work for approximately eight days. ( r. 35, 88). heir work was supervised by two of 

Respondent’s foremen, Morgan Payne and Ricardo Cereceres. ( r. 34-35, 83, 85, 242). 

 his was an unusual job, in that the structural I-beams of the building were exposed, and 

the drywall/densglass had to be installed by reaching through or around the exterior I-beams and 

duct work. ( r. 37, 89, 145; Exs. C-8, C-9). he distance from their aerial lift basket to the point 

of installation was sometimes 3-4 feet. ( r. 113). herefore, the two employees often had 

difficulty reaching the location of the drywall installation from the aerial lift basket. ( r. 91). 

Each 4’x8’ sheet of drywall/densglass weighed about 40 pounds, and needed to be screwed down 

every 8 inches. ( r. 43-44). Ruiz estimated that each sheet required 20-25 screws during 

installation, and took about 10-15 minutes per sheet to install. ( r. 50, 52). 

So, with the consent and instruction of supervisors Payne and Cereceres, the employees 

installed self-retracting lanyards (often referred to by witnesses as “yo-yos”) on the steel beams 

above their basket, so they could tie-off when they stepped out of the basket onto the guardrails 

or building I-beams. ( r. 43-44, 60, 72, 97, 113). hey turned the yo-yo strap in to either 

Supervisor Payne or “the tool guy” at the end of each work day. ( r. 98). 

 he aerial lift (aka “boom lift”) had two tubular metal guardrails which encompassed the 

floor of the basket. ( r. 36; Ex. C-6). Ruiz and Rojas were consistent in their explanation of 

how they used the guardrails to perform their work. Ruiz and Rojas explained that they 

1

 Although employees repeatedly referred to the sheets being installed as “drywall,” it apparently was commercially 

called “densglass.” ( r. 41). he sheet size and installation method for the material appears to be the same. ( r. 

206). 

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positioned themselves in whatever position enabled them to get the drywall/densglass installed. 

( r. 53, 92). Sometimes, the employees got out of the basket entirely and stood on an I-beam. 

( r. 92). hey used the basket gate if possible, but if it could not be opened, just climbed out 

using the guard rails. ( r. 93, 95, 112, 121-22). Other times, to install the drywall, they stood 

with one foot in the basket, and one foot on the basket railing. ( r. 51, 95). Sometimes, they 

stood with both feet on the basket railing – top rails and/or mid-rails. ( r. 49, 70). When asked 

about Respondent’s instructions regarding standing on the aerial basket guard rails, Ruiz 

testified: “ he only thing they wanted there was the job done.” ( r. 53). Ruiz and Rojas both 

said that they were authorized, by Supervisors Payne and Cereceres, to get out of the basket and 

stand on the basket rails to get their job done, as long as they were tied-off to the yo-yo strap. 

( r. 100, 108, 117, 124). 

Ruiz estimated that about 12-15 sheets of drywall were installed daily while they stood 

up on the aerial lift basket railing. ( r. 52). Rojas estimated that they needed to climb up on the 

basket rails to do their job about every 15 minutes, or about 3 times per hour. ( r. 94). He said 

each time he climbed up on the basket rail, it usually lasted about 5 minutes. ( r. 94). he 

employees were tied-off to the yo-yo line whenever they stood on the basket rails, or whenever 

they got out of the basket all together. ( r. 47, 50, 69, 71, 148). As the employees climbed 

around on the guard rails, the basket often swayed or moved. ( r. 94-95). Rojas, who was still 

working for Respondent at the time of trial, testified that: “You feel like you’re in a boat. If you 

are not used to being on that type of surface, then yeah, it will move and you can fall. You can 

injure yourself.” ( r. 94-95). 

Neither Payne or Cereceres ever instructed them not to use the aerial lift guardrails to 

perform their work. ( r. 53,060). hroughout the day, they often saw Supervisor Payne walking 

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around underneath their elevated basket. ( r. 54, 106). In fact, the boom lift got stuck in 

position twice on the day of the OSHA inspection, and Supervisor Payne had to come fix their 

machine. ( r. 55-56, 101, 105). Supervisor Cereceres also walked by them a couple of times 

during the day, once telling them to raise the fall protection yo-yo strap to a higher position. ( r. 

59-60, 106). 

In addition to both supervisors walking and working underneath them throughout the day; 

fixing their stuck machine twice, and commenting on the position of their yo-yo strap, the aerial 

lift was also positioned about 25 feet from the main entrance/exit to the jobsite. ( r. 57, 142). 

Furthermore, Respondent’s jobsite trailer was visible from the boom lift, about 150 feet away. 

( r. 58, 107-108, 134-135). 

 he Court also notes that both employees made comments during their testimony that 

calls into question documentation of their safety training. After the July 2, 2018 accident, Ruiz 

testified that he was asked by Respondent to sign some papers, but was told not to date them. 

( r. 74-75). Ruiz was suspended for two days after the accident, and then ultimately terminated. 

( r. 77). When asked at trial about his signature on some safety training documents, Rojas 

testified the documents had his name on them, but not his signature. ( r. 110; Ex. R-8). “I don’t 

write my name like that. I did not write that. I don’t know who would do that. I have no idea 

[sic] whose that handwriting is.” ( r. 110-111). However, Rojas did acknowledge receiving 

some safety training in April of 2018. ( r. 111). 

Discussion 

Citation 1, Item 1 

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

29 CFR §1926.453(b)(2)(iv): Employee(s) working in an aerial lift were sitting or 

climbing on the edge of the basket: 

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(a) On or about July 2, 2018, employees were exposed to fall injuries while climbing on 

the guardrails of a boom lift to position themselves in a more desired working position to 

install exterior drywall panels on a commercial building. 

Citation and Notification of Penalty at 6. 

 he cited standard provides: 

Employees shall always stand firmly on the floor of the basket, and shall not sit or climb 

on the edge of the basket or use planks, ladders, or other devices for a work position. 

29 CFR §1926.453(b)(2)(iv). 

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

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

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

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

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

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

The Standard Applied and Was Violated 

Ruiz and Rojas were working from a Snorkel, Model B 86J personnel lift. ( r. 163-166; 

Ex. C-11). CSHO Lane and Regional Safety Engineer Manceras agreed that the lift at issue was 

an “aerial lift,” as the term is used in the cited regulation. ( r. 63-165; 209, 215; Ex. C-11). It is 

also undisputed that Respondent’s employees were engaged in construction work on a new 

building, encompassed by 29 C.F.R. Part 1926 et al. herefore, the cited regulation applied to 

the work being performed. 

Respondent argues that the regulations under Subpart M general fall protection standards 

more appropriately applied to this case, not Subpart L (where the cited regulation is located) 

dealing with aerial lifts. hat perhaps may be true during those times when the employees exited 

the aerial lift basket and were working from the I-beams of the building (as they were no longer 

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in the aerial lift), but not while they were still standing/working from the lift.2 While employees 

were working from the aerial lift basket, even when inappropriately standing on the guardrails of 

the basket, the aerial lift safety regulations applied. he Commission has consistently held that 

specific standards prevail in application over more general standards. Cincinnati Gas & Electric, 

21 BNA OSHC 1057 (No. 01-0711, 2005); see also 29 C.F.R. § 1910.5(c)(1), “If a particular 

standard is specifically applicable to a condition, practice, means, method operation, or process, 

it shall prevail over any different general standard which might otherwise be applicable . . . .” 

Respondent’s argument that the cited regulation did not apply is rejected. 

Ruiz and Rojas admitted to repeatedly climbing on, standing on, and working from the 

guardrails of the aerial lift basket to perform their installation work. he cited regulation 

specifically prohibits that activity from the “edge” of an aerial lift. he term “edge” as used in 

the cited regulation has consistently been found to include the guardrails encompassing the lift 

basket. Universal Construction Company, 18 BNA OSHC 1390 (No. 97-1946, 1998, ALJ); 

Ruscilli Construction Co., 18 BNA OSHC 1793 (No. 97-1603, 1999, ALJ); Baker Drywall Co., 

18 BNA OSHC 1862 (No. 98-2088, 1999, ALJ); Ernest Bock & Sons, Inc., 2001 CCH OSHD 

32,408 (OSHRC, 2001, ALJ). 

In addition, a 2002 OSHA Letter of Interpretation specifically addressed the question of 

whether an employee can stand on the guardrails of an aerial lift basket to work, if properly tied 

off to a self-retracting lanyard. ( r. 169-170; Ex. C-12). “ he answer is no for aerial lifts.” (Ex. 

C-12). he 2004 OSHA Letter of Interpretation introduced by Respondent does not create an 

exception to the cited regulation, nor introduce any inconsistency with the above discussion. (Ex. 

2

 he Court notes that Subpart M of Part 1926 does contain Subpart V, regulations applicable to the use of aerial lifts 

while constructing “Electric Power ransmission and Distribution” lines, which were not involved in this case. 29 

C.F.R. § 1926.950 et al. 

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R-4). Accordingly, the cited regulation applied to the work being performed, and its terms were 

violated. 

Respondent’s Employees were Exposed to a Hazardous Condition 

 o establish employee exposure, the Secretary must show that Respondent’s employees 

were actually exposed to the violative condition or that it was “reasonably predictable by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or 

will be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-

1853, 1997). Respondent’s employees, Ruiz and Rojas, repeatedly and consistently climbed on, 

stood on, and worked from the guardrails of the aerial lift basket to perform their installation 

work. he record establishes that this occurred on July 3, 2018, and previous days, while they 

were doing the same type of work. Employee exposure to the hazardous condition was clearly 

established. 

Respondent Had Knowledge of the Hazardous Condition 

 o prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 

BNA OSHC 1962, 1965 (No. 82-928, 1986). he key is whether Respondent was aware of the 

conditions constituting a violation, not whether it understood the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of a corporate employer through the knowledge, actual or constructive, of its 

supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If 

a supervisor is, or should be, aware of the noncomplying conduct of a subordinate, it is 

reasonable to charge the employer with that knowledge. See Mountain States Tel. & Tel. Co. v. 

OSHRC, 623 F.2d 155, 158 (10th Cir. 1980). 

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Ruiz and Rojas were standing on and climbing on the aerial lift basket guardrails multiple 

times per hour, throughout the day. ( r. 49-52, 93-95, 171). Supervisors Payne and Cereceres 

acknowledged providing them with a yo-yo strap to enable them to climb out of the basket as 

needed. Payne, and to a lesser extent Cereceres, were seen walking around the job underneath the 

two employees throughout the day. Payne even repaired their stuck aerial lift twice. Cereceres 

stopped and commented on the location of their yo-yo on one occasion. In addition, the aerial 

lift was visible from Respondent’s job trailer, and was only 25 feet from the jobsite entrance/exit. 

Although the record contains no evidence that Payne or Cereceres specifically observed Ruiz 

and/or Rojas standing or climbing on the aerial lift rails, the violative condition was open, 

obvious, and in plain view. With the exercise of reasonable diligence, both Payne and Cereceres 

should have known what Ruiz and Rojas were doing to perform their assigned task. Reasonable 

diligence includes adequate supervision of employees, the formulation and implementation of 

work rules, and adequate training programs to ensure that the work is safe. Pride Oil Well Serv., 

15 BNA OSHC 1809 (No. 87-692, 1992). 

 he Court finds that Respondent knew, or with the exercise of reasonable diligence, 

should have known that Ruiz and Rojas were repeatedly standing on, climbing on, and working 

from the aerial lift basket guardrails. 

The Violation Was Serious 

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would 

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

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injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

If Ruiz or Rojas had slipped while working from the aerial lift guardrails, they could have 

been seriously injured. he self-retracting lanyard, or yo-yo, they were connected to would 

quickly slow the rate of the fall or swing, but would not prevent it. ( r. 149). Complainant and 

Respondent disagreed on the distance that the employees would fall or swing if they lost their 

footing while standing on the guardrails. Complainant argued they could have fallen as much as 

14 feet before the fall protection equipment stopped them. ( r. 151). Respondent argued it 

would have only been 2 feet of free fall. ( r. 211-212, 240). he Court finds that a slip, fall, or 

swing of even 2-3 feet by either employee, could have resulted in them striking the steel I-beam, 

the outside of the basket, or falling in between the basket and the steel I-beams. ( r. 152-154, 

171). his could have resulted in serious injuries, including head injuries or broken limbs. ( r. 

154, 172). his is especially true considering the shaky, unsteadiness of the aerial lift basket as 

employees moved around. ( r. 94-95, 154). Citation 1, Item 1 was properly characterized as a 

serious violation of the Act. 

Respondent Failed to Prove the Affirmative Defense of 

Unpreventable Employee Misconduct 

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

show: (1) it established work rules designed to prevent the violation; (2) it adequately 

communicated those rules to its employees; (3) it took steps to discover violations of the rules; 

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

23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). In other words, it is incumbent upon 

Respondent to “demonstrate that the actions of the employee were a departure from a uniformly 

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and effectively communicated and enforced workrule [sic].” Archer-Western Contractors Ltd., 

15 BNA OSHC 1013 (No. 87-1067, 1991). 

Respondent’s Regional Safety Engineer, Christian Mancera, testified that Respondent 

had a rule in place specifically prohibiting employees from working from aerial lift basket 

railings.3 ( r. 217; Ex. R-3). Respondent’s Safety Manual, under aerial boom lifts, states: “Do 

not stand on rails of aerial boom lift to gain greater height.” Both employees were trained and 

authorized to operate the aerial lift. ( r. 65-67, 88). he operating manual for the aerial lift also 

specifically states: “Do not climb on guardrails.” ( r. 167, Ex. C-11). 

 he record established, however, that Respondent was not monitoring for compliance 

with this rule, nor enforcing it when employees were not complying. Supervisors Payne and 

Cereceres were walking under and around Ruiz and Rojas throughout the day while they stood 

and climbed on the basket guard rails. Both employees testified that they needed to do that 

constantly, multiple times per hour, while the lift was in plain sight of anyone in the area 

underneath them; in plain sight of the jobsite entrance/exit; and in plain sight of Respondent’s 

jobsite trailer. And more specifically, Supervisor Payne issued them the yo-yo strap so they 

could climb out of the basket and Cereceres even commented on its location at one point in the 

day. Clearly, despite the company policy and aerial lift manual rule, Respondent’s supervisors 

were not monitoring for, or enforcing any kind of prohibition on standing on or working from 

aerial lift basket guard rails. Automatic Sprinkler Corp., 8 BNA OSHC 1384, 1387 (No. 76-

5089, 1980) (an employer “must make a reasonable effort to anticipate the particular hazards to 

which its employees may be exposed in the course of their scheduled work.”)). his Court is 

3

 he Court did not find Mr. Mancera to be very credible. For example, he testified that the first time he had ever 

heard of employees working from basket guardrails was during this trial. ( r. 214, lines 23-25). his seems highly 

improbable considering his position as Respondent’s Regional Safety Engineer; that the Citation alleged that fact 

back in 2018; and that the allegation in this case would not have been discussed with him during pre-trial discovery, 

or during preparation for his trial testimony. 

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convinced that the two employees were expected to get the drywall/densglass installed in 

whatever manner was needed, including repeatedly standing on and working from the aerial lift 

guardrails, in full view and with full knowledge of their two supervisors. 

Additionally, there was no evidence of Respondent disciplining employees for standing 

on, climbing on, or working from aerial lift guardrails until after the inspection. CSHO Lane 

was told that after this incident, an employee was disciplined for working from aerial lift basket 

guardrails, though no documentation was provided. ( r. 157). 

Respondent failed to establish that it adequately communicated a prohibition on standing/ 

climbing on aerial lift guardrails to the employees; that it took steps to discover violations of that 

rule; or that it effectively enforced the rule when violations were detected. As such, 

Respondent’s assertion of unpreventable employee misconduct is REJEC ED. 

Respondent Failed to Prove the Affirmative Defense of 

Impossibility or Infeasibility 

 he defense of infeasibility requires an employer to prove that: (1) the means of 

compliance prescribed by the standard were technologically or economically infeasible, or 

necessary work operations were technologically infeasible after implementation; and (2) there 

were no feasible alternative means of protection, or an alternative method of protection was used. 

V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1993–95 CCH OSHD ¶ 30,485 (No. 91-1167, 

1994). See also A. J. McNulty & Co., 19 BNA OSHC 1121, 1129 (No. 94-1758, 2000). he 

employer has the burden of proving infeasibility of compliance. State Sheet Metal, 16 BNA 

OSHC 1155, 1161 (No. 90-2894, 1993). 

Respondent failed to establish that the drywall/densglass installation work could not have 

been performed by exiting the aerial lift basket properly and working from the I-beams (as 

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employees said they did part of the time). Respondent also failed to establish that the more 

difficult sections of drywall/densglass could not have been installed from inside the building 

itself, rather than externally from an elevated lift. It was Respondent’s burden, in asserting this 

defense, to establish that there were no other methods available to install the drywall/densglass 

other than employees standing on the guardrails of the aerial lift basket. Respondent failed to 

meet that burden. Accordingly, Respondent’s assertion of impossibility/infeasibility of 

compliance is REJEC ED. Similar arguments of impossibility, under similar factual conditions, 

have been rejected at the Commission. Ruscilli Construction Co, supra. 

Penalty 

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. Gravity is the primary consideration and is determined by 

the number of employees exposed, the duration of the exposure, the precautions taken against 

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo 

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

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); 

Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

Complainant proposed a penalty of $5,543 because CSHO Lane concluded that this was 

a low gravity violation. ( r. 175). He determined that the severity of injury likely to occur from 

the violation was “low,” and the probability of an accident was “lesser.” ( r. 175). In 

calculating the proposed penalty, Complainant considered Respondent’s status as a large 

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employer with approximately 900 employees; afforded no good faith penalty reduction; nor any 

reduction based on violation history. ( r. 176). he record establishes that two employees were 

exposed to the violative condition repeatedly and continuously throughout the shift on July 3, 

2018 and on previous days. Based on the totality of the circumstances discussed above, the 

Court sees no reason to depart from Complainant’s proposed penalty. A penalty of $5,543 is 

appropriate and will be assessed. 

Order

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

that: 

1. Respondent’s Motion for a New Trial, made in its Post-Hearing Brief, based upon the 

timing of the disclosure of two unredacted government informant witness statements4 is 

DENIED; and 

2. Citation 1, Item 1 is AFFIRMED as a serious violation, and a penalty of $5,543 is 

ASSESSED. 

/s/ Brian . Duncan 

Date: January 17, 2020 Judge Brian A. Duncan 

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

4 ( r. 21-22, 62, 80). 

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