Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 15-0175 

THE REYBOLD GROUP OF COMPANIES, INC., 

Respondent.

Appearances: John A. Nocito, Esq. & Bertha Astorga, Esq.

 Office of the Regional Solicitor

 United States Department of Labor

 170 S. Independence Mall West

 Philadelphia, PA 19106-3306 

 For the Complainant

 Jill Agro, Esq. & Richard L. Rainey, Esq.

 Womble, Carlyle Sandridge & Rice, LLP

 One Wells Fargo Center

 301 South College Street, Suite 3500

 Charlotte, NC 28202-6017; and

 

 Suzanne Ilene Schiller, Esq. 

 Jill Hyman Kaplan, Esq. & Diana A. Silva, Esq.

 Manko, Gold, Katcher & Fox, LLP

 401 City Ave., Suite 901

 Bala Cynwyd, PA 19004

 

 For the Respondent

Before: Keith E. Bell

 Administrative Law Judge

 
2 

DECISION AND ORDER

 This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 451 (the Act). The Occupational Safety and Health Administration (OSHA) conducted 

an inspection of a worksite located at 700 Roger Chaffee Square, Meridian Crossing (the 

worksite) Unit 725, Bear, Delaware on or about July 14, 2014. As a result, on January 9, 2015, 

OSHA issued a Citation and Notification of Penalty (Citation) to The Reybold Group of 

Companies, Inc. (Respondent or Reybold), alleging two violations of the Act. Citation 1, Item 1, 

alleges that Respondent violated 29 C.F.R. § 1926.503(a)(1) for exposing employees to a fall of 

greater than 11 feet without training. This violation is classified as “serious” and a penalty in the 

amount of $7,000 is proposed for this item. Citation 2, Item 1, alleges a violation of 29 C.F.R. § 

1926.501(b)(13) because an employee was allowed to work 11 feet above ground along the 

leading edge of a balcony without fall protection. This violation is classified as “willful” and a 

penalty in the amount of $70,000 is proposed for this item. Respondent timely contested the 

Citation. A hearing was held on May 31 through June 1, 2016, in Philadelphia, Pennsylvania. 

For the reasons discussed below, Citation 1, Item 1 is AFFIRMED as issued and Citation 2, Item 

1 is AFFIRMED as “serious”. The proposed penalty for Citation 1, Item 1 is assessed while a 

modified penalty, based on a finding of “serious” rather than “willful”, is assessed for Citation 2, 

Item 1. 

Jurisdiction

 The parties have stipulated to the Commission’s jurisdiction over this proceeding and 

coverage under the Act. (Tr. 12-13). The parties have also stipulated that Reybold is a Delaware 

corporation. Admitted Fact No. 1. The record establishes that at all times relevant to this case, 
3 

Reybold was an “employer” engaged in a “business affecting commerce” within the meaning of 

section 3(5) of the Act, 29 U.S.C. § 652(5). The evidence supports a finding that the Act applies 

and the Commission has jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 

U.S.C. § 659(c). 

Admitted Facts1

1. Respondent, The Reybold Group of Companies, Inc., is a Delaware Corporation, with its 

principal place of business at 116 E. Scotland Drive, Bear, Delaware 19701. 

2. Respondent had a worksite at Roger Chafee Square, Meridian Crossing, Bear, Delaware 

19701 (the worksite) on July 14, 2014.

3. [redacted] was a Reybold employee on July 14, 2014.

4. Reybold hired [redacted] pursuant to a cooperative arrangement with St. George’s 

Technical High School.

5. [redacted] was issued a Delaware Department of Labor Child Labor Work Permit for 

Minor in order to work for Respondent.

6. [redacted] began working at the worksite on June 12, 2014. 

7. Greg DaPron was Respondent’s Project Manager at the worksite.

8. Lloyd Baker was Respondent’s Site Superintendent at the worksite.

9. Greg DaPron was at the worksite on the morning of July 14, 2014.

10. Lloyd Baker was on a scheduled vacation and did not report to the worksite on July 14, 

2014. 

11. On July 14, 2014, [redacted] performed work for Respondent at the worksite.

12. On July 14, 2014, [redacted] fell from the second floor balcony of Unit 725 at the 

worksite.

13. The distance from the ground to the second floor balcony at Unit 725 at the worksite is 

11 feet, 2 inches.

 

1 In their Joint Prehearing Statement, the parties agreed to and admitted the following facts in this matter (Nos. 1-

13). 
4 

The following fact was admitted by stipulation at the hearing:

14. [redacted] called to clarify that he would be working on July 14, 2014. Tr. 119-21. 

The following facts were admitted by ruling at the hearing:

2

15. The doors leading to the unguarded balconies were not shut with 2x4s on the day of 

[redacted]’s fall.

16. No signs were posted concerning unguarded balconies.

17. Keenan Benson stated they would always move the debris by handing it down from the 

third floor to the second floor.

18. Reybold Project Manager, Greg DaPron, told the OSHA Compliance Officer that the 

building was protected at the time of the incident when, in fact, it was not.

Background 

 Respondent, Reybold, is a company involved in real estate which includes construction of 

properties that it maintains. Reybold has been involved in construction for 34 years. Tr. 143. 

On July 14, 2014, Reybold had a worksite at Roger Chafee Square, Meridian Crossing located in 

Bear, Delaware. Admitted Fact No. 2. Meridian Crossing is a mixed development of homes, 

apartments, and townhomes. Tr. 337. 

 Reybold has a co-op program through which it hires students from St. George’s Vocational 

and Technical School (St. George’s). Tr. 53. Reybold chose to work with students from St. 

George’s because they have training. Tr. 358. Reybold hired [redacted] pursuant to its co-op 

arrangement with St. George’s. Admitted Fact No. 4. St. George’s highly recommended 

[redacted] and confirmed that he had received the OSHA 10-hour training which included a 

 

2 At the hearing, the undersigned granted the Secretary’s motion for sanctions, under Rule 52(f)(1) of the Federal 

Rules of Civil Procedure, related to a last-minute production of documents that were responsive to an earlier 

discovery request made by the Secretary. One of the sanctions requested was the admission of certain facts as 

established. The facts are contained in a document marked CX-20 and admitted into evidence though counsel for 

the Secretary only sought to have four facts listed above (15-18) as “established.” Although the Secretary also 

sought relief in the form of an adverse inference, the undersigned finds no basis to impose such a sanction here. Tr. 

313-14. Fed. R. Civ. P. 52.
5 

segment on fall protection. Tr. 364-65. 

 [redacted] began working for Reybold on June 12, 2014, and was assigned to Meridian 

Crossing where large condominiums were being built. Admitted Fact No. 6; Tr. 57. At the time 

of hire, [redacted] was 17 years old and had just completed his junior year of high school at St. 

George’s. Tr. 56, 85. During his employment with Reybold, [redacted] mainly worked in the 

700 building. Tr. 57. [redacted]’s primary duties included sweeping and moving debris out of 

the way of the working crew. Tr. 59. Debris often accumulated on the balconies because things 

would get loaded onto them (plastic, empty buckets, wood shavings etc.). Tr. 61. Utility closets 

were also located on the balconies from which debris needed to be removed. Id. [redacted] put 

the debris into a box then disposed of it by tossing it from a balcony into the dumpster positioned 

in front of the balconies on the ground below. Tr. 62. [redacted] accessed the balconies every 

day by simply walking through an adjoining door which was usually open to keep air flowing. 

Tr. 63. Lloyd Baker was Reybold’s Site Superintendent at Meridian Crossing and he was 

[redacted]’s immediate supervisor. Admitted Fact No. 8; Tr. 58.

Day of the Accident

 Lloyd Baker, [redacted]’s immediate supervisor, was on scheduled vacation and did not 

report to the worksite on July 14, 2014 --- the day of the accident. Admitted Fact No. 10. 

Though it is unclear whether [redacted] was scheduled to work on the day of the accident, at 

some point, he called to clarify that he would be working on July 14, 2014. Tr. 119-21. During 

a conversation between [redacted] and Reybold’s HR Manager, Collyne Figgs, she informed him 

that if he wanted to work on July 14th, he would need approval by a manager because his 

supervisor (Lloyd Baker) wouldn’t be working that day. Tr. 382. Reybold Project Manager, 
6 

Mike Clineff3 gave the approval for [redacted] to work on the day of the accident. RX-39 at 2. 

Mr. Clineff then called Reybold’s Commercial Project Manager, Greg DaPron, on the morning 

of July 14th stating that [redacted] was on site and needed something to do. Tr. 389; RX-39 at 2. 

Mr. DaPron was surprised by this because he believed that [redacted] was scheduled to be off. 

Id. In any case, Mr. DaPron stopped by the worksite and assigned [redacted] and another 

employee, Keenan Benson, to clean up the third floor. Tr. 87-88, 389-90. At some point, 

[redacted] was standing on the second floor balcony of Unit 725 receiving trim from his work 

partner, Keenan Benson, who was passing it down from the third floor balcony. Admitted Fact 

No. 12; Tr. 92. While reaching for a piece of trim, [redacted] fell approximately 11 feet to the 

ground below and struck his head. Tr. 91. [redacted] was hospitalized due to injuries sustained 

from his fall. Id.

OSHA Investigation

 OSHA Compliance Officer (CO), Timothy Louden received a phone call from the local 

police on July 14, 2014, notifying him of an accident at Meridian Crossing. Tr. 180. As a result, 

an investigation was initiated. Id. CO Louden arrived on site at Meridian Crossing in the early 

afternoon on the day of the accident. Tr. 181, 205. Upon arrival, he encountered Reybold 

employees Frank Bailey and Greg DaPron. Id. After receiving an update from the police on site, 

CO Louden conducted an investigation that included taking photos, statements, and making 

observations of the accident site. Tr. 182-83. Initially, CO Louden interviewed Reybold 

employees Frank Bailey and Greg DaPron. Id. During his interview, Mr. DaPron told CO 

Louden that the building where the accident occurred was protected at the time of the accident

when, in fact, it was not. Admitted Fact No. 18. CO Louden’s interview of accident victim, 

 

3 In the transcript (pgs. 137 & 389), this individual whose first name is Mike is referenced with the last name 

“Klinen” and “Kline”. However, Reybold’s report of the July 14, 2014, fall incident refers to him by the name Mike 

Clineff. RX-39 at 2. 
7 

[redacted], took place approximately a month after the accident due to injuries sustained by 

[redacted]. Tr. 206. CO Louden’s investigation of the accident revealed that the doors leading 

to the unguarded balconies were not shut by 2x4s on the day of the accident. Admitted Fact No. 

15. Additionally, no signs were posted concerning the unguarded balconies. Admitted Fact No. 

16. 

Discussion

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

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

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

either knew or could have known with the exercise of reasonable diligence of the violative 

condition. JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A preponderance 

of the evidence is “that quantum of evidence which is sufficient to convince the trier of fact that 

the facts asserted by a proponent are more probably true than false.” Astra Pharma. Prods., 9 

BNA OSHC 2126, 2131, n. 17 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 69 (1st Cir. 

1982).

Alleged Violations of 29 C.F.R. § 1926.503(a)(1)

Citation 1, Item 1a alleges a violation of 29 C.F.R. § 1926.503(a)(1) which states: 

Training Program. The employer shall provide a training program for each 

employee who might be exposed to fall hazards. The program shall enable each 

employee to recognize the hazards of falling and shall train each employee in the 

procedures to be followed in order to minimize these hazards.

 Specifically, Citation 1, Item 1 alleges that on or about July 14, 2014, employees were 

exposed to fall of greater than 11 feet and were not trained.
8 

 Reybold does not dispute the applicability of this standard. Instead, Reybold makes two 

arguments in its defense: 1) that the training [redacted] received from his vocational school was

sufficient for the work he was expected to do; and 2) Reybold’s Safety Policies and Procedures 

Manual (Safety Manual) put [redacted] on notice that he was required to wear fall protection 

when working from certain heights. Resp’t Br. 15-16. The record is clear that on July 14, 2014, 

[redacted] was exposed to a fall hazard. The cited standard applies.

 The terms of this standard require training that covers (1) recognition of hazards of falling; 

and (2) training on procedures to minimize such hazards. However, the standard does not set 

forth specific requirements to achieve the stated goals. When the language of a training standard 

is general and potentially subjective, the Commission and courts have applied a reasonableness 

standard. That is, to establish non-compliance, the Secretary must prove that the cited employer 

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

same circumstances. El Paso Crane and Rigging Co., Inc., 16 BNA OSHC 1419, 1426 (No. 90-

1106, 1993). (emphasis added).

 Reybold’s Safety Officer, Frank Bailey, testified that he didn’t provide fall protection training 

to [redacted] because he believed the training provided by the vocational school was adequate. 

Tr. 507. [redacted] testified that he received OSHA 10-hour training. Tr. 118. This training was 

confirmed by the production of his training card. RX-21. According to [redacted], his OSHA 

10-hour training was computer-based training that consisted of a slide presentation. Tr. 118. 

[redacted] also testified that the training covered fall protection. Id. He further testified that his 

vocational school training included information on fall protection and how to use it. Tr. 72-73, 

100. It is established that Reybold’s Safety Manual was provided to [redacted] who signed a 

form receipt thereby acknowledging his responsibility to familiarize himself with its contents. 
9 

RX-47, at 8. This Safety Policies and Procedures Manual addresses fall protection. CX-10, at 

40. The evidence shows that [redacted] received some fall protection training at school and a 

copy of a fall protection policy and procedures statement from Reybold. However, there is no 

evidence that this training was adequate to prepare him to recognize the fall hazards he 

encountered at the worksite. For example, [redacted] testified that it was common for Reybold 

employees/contractors to toss debris from the balconies into the dumpsters below. Tr. 86. He 

also saw trim being passed from one floor to another by way of the balcony as if it was an 

“established method” for moving the trim. Tr. 99. Further, he testified that he didn’t see anyone 

wearing fall protection. Most importantly, he testified that he didn’t feel empowered to 

challenge these methods because he was so young. Tr. 96. Interestingly, Reybold’s Chief 

Operating Officer and Executive Vice President testified that he believed co-op students, like 

[redacted], needed more detailed instruction. Tr. 167. Apart from the training [redacted]

received from his school and the material on fall protection provided to him in Reybold’s Safety 

Manual, he may have received further safety instructions from his immediate supervisor Lloyd 

Baker. However, Mr. Baker did not testify so we will never know. What we do know is that, 

according to [redacted], he wasn’t aware of any work rule regarding balconies and no one at 

Reybold went over fall protection with him or proper procedures for working on balconies. Tr.

103, 110. 

 Frank Bailey also testified that [redacted] wasn’t expected to do work in areas that would 

expose him to fall hazards. Tr. 460. This assertion seems incredulous in view of the fact that 

[redacted] was assigned to work in a multi-level building. The real question is whether a 

reasonably prudent employer would have relied on the training provided by [redacted]’s 

vocational school without offering supplemental on-site training on fall protection. Notably, at 
10 

the time of the accident, [redacted] was only 17 years old and still in high school. Tr. 56, 85. 

[redacted]’s age and impressionability seemingly influenced how he performed his duties based 

on his testimony that “...there’s a lot of older guys, you know, I just did what I saw. I was just 

17 at the time and young, and I was just doing what everybody else was doing at the jobsite.” 

Tr. 85. The evidence reveals that, in the absence of proper training on fall hazards present at the 

worksite, [redacted] was susceptible to and likely picked up unsafe work habits from others. 

 Given [redacted]’s age, the fact that he was still in high school, had no practical/hands on 

training and was assigned to work on an active construction site where he was exposed to 

elevated/unguarded work platforms, it was not reasonable for Reybold to rely on the training he 

received from St. George’s. In fact, it defies all logic that any reasonably prudent employer

would have failed to give hands on training and detailed instruction to a teenager on all hazards 

likely to be encountered on a construction site. Even Reybold’s sub-contractor, Alan Coryell, 

testified that despite the fact that he provided safety harnesses to his employees, he couldn’t 

guarantee that they used them when he wasn’t on site. Tr. 429. Mr. Coryell highlighted this 

point when he testified about a time when he was off site and received notification that one of his 

employees refused to wear his harness. Tr. 429. Alan Coryell’s testimony further underscored

the importance of fall protection training at this worksite. Reybold’s arguments in defense of its 

failure to provide fall protection training to [redacted] are unpersuasive. The evidence supports a 

finding that Reybold failed to comply with the requirements of the cited standard. 

Employee Exposure

 The facts regarding employee exposure/access to the hazard of a fall are the same for both 

standards cited (training and fall protection). Therefore, the discussion of employee exposure is 

consolidated here. 
11

 [redacted] testified that “[he] was on balconies every day.” Tr. 63. He accessed balconies 

using doors that were usually open. Id. He testified that the doors to the balconies were usually 

left open to keep the air flowing because it was summertime. Id. [redacted]’s testimony 

regarding balcony doors being left open is supported by the testimony of Reybold’s subcontractor, Alan Coryell, who stated that “it was next to impossible to keep them closed.” Tr. 

440. [redacted] also testified that no temporary railings were installed during the time when he 

was on site. Tr. 65-66. In fact, according to [redacted], the balconies were left unguarded until 

permanent railings were installed. Tr. 66. [redacted]’s account is supported by statements made 

to CO Louden by Reybold’s Project Manager at Meridian Crossing, Greg DaPron, that 

temporary railings were not installed because they didn’t want to damage the vinyl siding for 

potential homeowners. Tr. 219, 388. Photographs of the accident site taken by OSHA CO 

Louden reveal that the balcony from which [redacted] fell was unguarded. CX-9. The facts 

reveal that [redacted] accessed the balconies to toss debris into the dumpster below. Tr. 70. 

Further, the facts reveal that [redacted] was never provided fall protection and didn’t use any. Id. 

Prior to the accident, [redacted] observed other workers moving pieces of wood trim from one 

floor to the other by “shimmying” the trim up or down to someone standing on another balcony 

who would grab it and pull it in. Tr. 78-79. On occasion, [redacted]’s supervisor, Lloyd Baker, 

asked him to move trim. Tr. 81, 83. There is no evidence to refute [redacted]’s claims that he 

was repeatedly exposed to unguarded balconies without fall protection. Employee exposure to 

the fall hazard is established.

Employer Knowledge

 The violative conditions that resulted in alleged violations at this worksite are the same for 

both standards cited (training and fall protection). Therefore, the discussion of employer 
12 

knowledge is consolidated here. 

 Here, the facts reveal that Reybold had both actual and constructive knowledge of the 

violative conditions. Frank Bailey, Reybold’s Safety Officer, participated in an inspection with a 

representative of Reybold’s insurer on November 20, 2012. Tr. 136. During the inspection, they 

observed balconies with buckets stored on them and no guardrails. Id. Shortly after the 

inspection, on the same day, Reybold’s insurer sent a letter, via email, to Frank Bailey recapping 

hazardous conditions observed to include unguarded balconies. CX-11. The letter suggested 

that balconies should either be guarded or that access should be restricted by the use of warning 

signs, locked doors, or temporary guardrails. Id. As a result of the inspection and receipt of the

letter from Reybold’s insurer, Frank Bailey sent an email to Messrs. Lloyd Baker (Site 

Superintendent), Greg DaPron (Project Manager), and Mike Clineff (Project Manager) notifying 

them of the fall hazard presented by the unguarded balconies. Tr. 137, CX-12. Although the 

insurer’s inspection occurred more than a year before the accident, the record is void of any 

credible evidence that Reybold changed its practice of leaving balconies unguarded and 

accessible to employees. The collective knowledge of these Reybold managers (Bailey, Lloyd, 

DaPron and Clineff) concerning the hazard of falling present at this worksite is imputed to 

Reybold. See, Dover Elevator Co. Inc., 16 BNA OSHC 1286-87 (No. 91-862, 1993) quoting 

Baytown Constr. Co., 15 BNA OSHC 1705, 1710 (No. 88–2912S, 1992), aff'd, 983 F.2d 282 (5th 

Cir. 1993) (unpublished) (holding that although the Secretary has the burden to establish 

employer knowledge of the violative conditions, when a supervisory employee has actual or 

constructive knowledge of the violative conditions, that knowledge is imputed to the employer, 

and the Secretary satisfies his burden of proof without having to demonstrate any inadequacy or

defect in the employer's safety program.). Moreover, Reybold’s own Safety Manual addresses 
13 

fall protection thereby acknowledging the possibility of such a hazard. CX-10 at 40. In 

February 2014, Reybold’s Safety Committee minutes reflect that a meeting took place with the 

building construction management team to address supervisors' responsibility for monitoring 

safety on a worksite. RX-35. The implementation of such a proactive safety policy should have 

resulted in the discovery of violative conditions such as unguarded and accessible balconies as 

well as unsafe work practices such as those that led to [redacted]’s accident. According to 

[redacted], he has communicated with Site Superintendent Lloyd Baker while standing on a 

balcony. Tr. 69. [redacted] also testified that he would frequently see Mr. Baker walking around 

the worksite. Id. Inspections such as those performed by Safety Officer Frank Bailey (RX-29) 

should have recorded these violative conditions along with any corrective measures to be taken. 

The photographic and testimonial evidence of the conditions giving rise to the alleged violation

establishes that they were in plain view of both managers (Baker and Lloyd) and should have 

been discovered if either had been following the company’s safety monitoring policy. The 

Commission has held that an employer is chargeable with knowledge of conditions which are 

plainly visible to its supervisory personnel. A.L. Baumgartner Constr. Inc., 16 BNA OSHC 

1995, 1998 (No. 92-1022, 1994). 

 Although Reybold claims that [redacted] was not provided fall protection training, in part, 

because he was not expected to do work that would require such training, this argument is 

without merit because [redacted] was assigned to work in a multi-level unit with unguarded 

balconies. Therefore, the hazard of falling was always present. It has been held that an 

employer “cannot fail to properly train and supervise its employees and then hide behind its lack 

of knowledge concerning their dangerous working practices.” A/C Elec. v. Occupational Safety 

& Health Review Comm’n., 956 F.2d 530, 535 (6th Cir. 1991). Reybold’s knowledge of the 
14 

violative conditions that led to [redacted]’s accident is established.

Serious Classification

 To prove a violation was “serious” under section 17(d) of the Act, 29 U.S.C. § 666(d), the 

Secretary must show there was a substantial probability that death or serious physical harm could 

have resulted from the cited condition and that the employer knew or should have known of the 

condition; the likelihood of an accident occurring is not required. Spancrete Ne., Inc., 15 BNA 

OSHC 1020, 1024 (No. 86-521, 1991). The facts reveal that [redacted] fell and hit his head. Tr. 

90. As a result of the fall and injuries sustained, he was hospitalized. Tr. 91. The record is clear 

that Reybold had knowledge of the fall hazard. The Secretary has met his burden of proving that 

the violation alleged in Citation 1, Item 1 is properly classified as serious.

Alleged Violation of 29 C.F.R. § 1926.501(b)(13)

 Citation 2, Item 1 alleges a violation of 29 C.F.R. § 1926.501(b)(13), which states, in 

pertinent part, that: 

Residential Construction. Each employee engaged in residential construction 

activities 6 feet or more above lower levels shall be protected by guardrail 

systems, safety net system, or personal fall arrest system...

 Specifically, the Citation 2, Item 1 alleges that on or about July 14, 2014, an employee 

working along the leading edge of the second floor balcony, approximately 11 feet above ground 

was not protected from a fall hazard. 

 The facts establish that Meridian Crossing was a residential construction site. Tr. 57. On July 

14, 2014, [redacted] was employed by Reybold when he fell from the second floor balcony of 

Unit 725 at the worksite. Admitted Fact Nos. 3 & 12. The distance from the ground to the 

second floor balcony at Unit 725 at the worksite is 11 feet and 2 inches. Admitted Fact No. 13. 
15 

At the time of his fall, [redacted] was moving pieces of wood trim by way of a second floor 

balcony. Tr. 91. There was no guardrail in place on the second floor balcony where [redacted]

fell. Tr. 65-66, CX-9. The cited standard applies. 

 The record is clear that [redacted] was exposed to a fall hazard on the day of the accident. 

Further, [redacted] testified that “[he] was on balconies every single day.” Tr. 63. According to 

[redacted], his supervisor, Lloyd Baker, never told him to stay off the balconies. Tr. 64. He 

stated that he was frequently instructed to remove objects and debris from the balconies although 

he doesn’t say exactly who gave these instructions. Tr. 65. [redacted] also stated that no 

temporary railings were installed during his time on the site and the balconies remained 

unguarded until permanent railings were installed. Tr. 66. [redacted]’s testimony concerning the 

unguarded balconies is supported by photographs taken at the worksite as part of CO Louden’s 

investigation. CX-9. There is no evidence that the worksite was equipped with a safety net 

system. Finally, [redacted] was not given a personal arrest (fall protection) system and didn’t 

use any. Tr. 70. The evidence supports a finding that Reybold violated the standard.

Unpreventable Employee Misconduct Defense

 In its Answer, Reybold asserted the affirmative defense of unpreventable employee 

misconduct. Resp’t Answr. 4. In its post-hearing brief, Reybold specifically alleges that the July 

14, 2014, accident may have been caused by the misconduct of [redacted]’s immediate 

supervisor, Lloyd Baker.4

 Resp’t Br. 29-31.

 An employer may defend itself against the Secretary’s allegation that it committed a violation 

by establishing the affirmative defense of unpreventable employee misconduct. To establish this

 

4 At the hearing, counsel for the Secretary objected to Reybold’s affirmative defense of unpreventable supervisory

employee misconduct. The basis for the Secretary’s objection is Reybold’s failure to specifically assert supervisory 

misconduct in its answer. It is well established that pleadings before the Commission are to be liberally construed 

and easily amended. Nat’l Realty and Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). 
16 

defense, the employer is required to prove that “[it] has established work rules designed to 

prevent the violation, has adequately communicated these rules to its employees, has taken steps 

to discover violations, and has effectively enforced the rules when violations have been 

discovered.” Pa. Power & Light Co. v. Occupational Safety & Health Review Comm'n, 737 F.2d 

350, 358 (3d Cir. 1984) (emphasis omitted) (quoting Marson Corp., 10 BNA OSHC 1660, 1662 

(No. 78–3491, 1982). 

 At the time of the accident, Reybold had a written fall protection policy set forth in its Safety

Manual. Reybold’s fall protection policy establishes the following fall protection protocol for its 

employees when working in an area that is 6 feet or more above a fixed platform or floor:

Full body harness with “D” ring located in rear between the shoulder 

blades; 

An approved 6-foot lanyard with a tear away portion for relieving shock;

The lanyard is to be connected to the “D” ring and the other end to a 

fixed point either level with or over the head of person wearing it;

In times that a person has to work along a lateral surface the use of a 

retractable is suggested. For 100% Fall Protection use a double lanyard. 

Connect one in forward movement and disconnect one in rear “leap frog 

style.” One should be connected at all times. CX-10, at 40. 

 Notwithstanding the existence of Reybold’s fall protection policy, [redacted] testified that he 

didn’t see anyone using fall protection when working on balconies. Tr. 86. In response to an 

inspection of the worksite on November 20, 2012, that revealed unguarded balconies at Meridian 

Crossing where the accident occurred, Reybold’s Safety Officer, Frank Bailey, sent an email to 

Commercial Project Manager, Greg DaPron telling him that anyone accessing balcony areas had 

to be wearing fall protection or the balcony had to be guarded. Tr. 470. Additionally, Reybold’s 

Safety Committee established a “tool box talk” to remind employees and supervisors about 

safety and accountability in construction. RX-34, 35. Greg DaPron testified that the doors were 
17 

screwed shut or barricaded by 2x4 pieces of wood to prevent access to any area where a fall 

hazard was present and no guardrails were installed. Tr. 413. He further testified that he didn’t 

check to see if the doors were screwed shut on the day of the accident. Tr. 414. By contrast, 

[redacted] testified that he never saw a balcony door blocked by wooden pieces, screwed shut, or 

with warning signs posted. Tr. 109-10. Although subcontractor Alan Coryell testified that he 

and his crew would put a screw in the door after installation, he also stated that the screws were 

easily removed due to the number of people accessing the balcony areas for loading and 

unloading purposes. Tr. 439. Further, referencing the doors leading to the balconies, Mr. 

Coryell candidly stated that, “it was next to impossible to keep them closed.” Tr. 440. The 

evidence establishes that Reybold had established work rules designed to prevent this violation; 

however, they were not always followed.

 According to [redacted], he was given orientation by Reybold’s Human Resources Manager, 

Collyne Figgs. Tr. 55. His orientation included going over a lot of paperwork, procedures, and 

manuals. Id. Sometime later, he met with Reybold’s Safety Officer on site. Id. Ms. Figgs 

testified that when she met with [redacted], she reviewed Reybold’s personnel manual along with 

its policies and procedures manual and provided him with a safety manual. Tr. 365. Reybold’s 

exhibit no. 47, page 8 confirms that [redacted] received a copy of Reybold’s Safety Manual. Ms. 

Figgs also testified that she was present when [redacted] and the other co-op students received 

their safety orientation. Tr. 373, 385. During the safety orientation, Reybold’s Safety Officer, 

Frank Bailey, reviewed the Safety Manual with the students. Id. However, Frank Bailey

testified that he did not provide fall protection training to [redacted] because he was not expected 

to do work where fall protection would be required. Tr. 460, 507. Although Reybold’s Safety 

Committee discussed the implementation of “tool box talks” to reinforce workplace safety, 
18 

according to [redacted], he never had a tool box talk and didn’t even know such a thing existed. 

Tr. 117. He further testified that no one from Reybold communicated to him proper procedures 

for working on balconies. Tr. 103. Lloyd Baker is the Reybold employee who would likely be 

able to dispute [redacted]’s claims; however, he didn’t testify. Based on the foregoing, the 

undersigned finds that Reybold failed to adequately communicate its work rules regarding fall 

hazards to [redacted]. 

 Reybold’s President, Jerome Heisler, testified that Frank Bailey drove around the worksite on 

a regular basis and was involved in inspections of the worksite. Tr. 343. Annual inspections 

were conducted by Reybold’s insurer. Id. Additionally, Frank Bailey testified that he conducted 

regular inspections at the worksite where the accident took place --- Meridian Crossing. Tr. 461. 

The last inspection he conducted at that worksite was within a week of the accident. Id. 

Reybold’s exhibit no. 29, pg. 18 reflects an inspection conducted by Frank Bailey on July 2, 

2014, a little more than a week prior to the accident. On page 2 of the July 2nd inspection sheet, a 

box was checked denoting no violations found during the inspection. RX-29 at 19. Despite his 

testimony concerning regular inspections and the July 2, 2014, inspection sheet, Frank Bailey 

also testified that he was unaware that there were unguarded balconies. Tr. 460. Frank Bailey’s 

lack of knowledge concerning this condition of unguarded balconies in plain view undermines 

the trustworthiness of his inspections. Greg DaPron also testified he didn’t notice whether the 

second floor had guardrails on the balconies. Tr. 390. Greg DaPron further testified that he 

never saw an employee working on a balcony without fall protection. Despite the evidence 

concerning inspections performed by Reybold managers, it seems that the inspections were 

either not frequent enough or thorough enough to reveal the dangerous work practice that led to 

[redacted]’s accident. In fact, the Constructive Action Report issued to Greg DaPron following 
19 

the accident states, “...it is reasonable to expect that Greg, as a Project Manager, should have 

recognized the potential hazard and addressed it immediately.” CX-15. While the evidence 

shows that Reybold did take some steps to discover violations, it also reveals that those actions 

were inadequate.

 Reybold offered no evidence of enforcement of its policies and procedures regarding fall 

hazards and fall protection prior to the July 14, 2014 accident. Following the accident, Greg 

DaPron received a written reprimand titled “Constructive Action Report Performance 

Counseling and Documentation” for failing to identify and address the fall hazard. CX-15. 

Reybold subcontractor Alan Coryell testified that he worked for Reybold for six years. Tr. 424. 

As a sub-contractor, he was familiar with Reybold’s safety policies and procedures. Tr. 425. 

Mr. Coryell recounted an instance when he received a phone call telling him that an employee 

was on a balcony without a harness. He responded by threatening to send the employee home if

he did not put on his harness. Tr. 429. Mr. Coryell also testified that he provided harnesses to 

all of his employees who would be working on patios/balconies and that he never saw a Reybold 

employee on unguarded balconies. Tr. 428. The evidence supports a finding that Reybold 

enforced the rules concerning fall hazards once discovered. However, the evidence doesn’t 

conclusively show that such enforcement was effective. 

 Reybold’s defense of unpreventable employee misconduct by Site Superintendent Lloyd 

Baker fails, in large part, because it didn’t adequately communicate the established work rules on 

the use of fall protection when working on unguarded and elevated surfaces to [redacted]. 

Moreover, its inspections designed to uncover violations were ineffective and inadequate. 

Willful Classification

 Citation 2, Item 1 in this case is classified as “willful”. “A willful violation is one committed 
20 

with either intentional disregard of or plain indifference to the requirements of the Act or a 

standard.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2209 (No. 87-2059, 1993). 

[I]t is not enough for the Secretary to show than an employer was aware of 

conduct or conditions constituting the alleged violation; such evidence is already

necessary to establish any violation .... A willful violation is differentiated by a 

heightened awareness of the illegality of the conduct or conditions and by a state 

of mind of conscious disregard or plain indifference. 

Hern Iron Works, 16 BNA OSHC 1206, 1214 (No. 89-433, 1993). 

 The Secretary has not established that Reybold’s violation of 29 C.F.R. § 1926.501(b)(13) 

was willful. Although [redacted]’s fall was unfortunate and could likely have been avoided if the 

balcony had been guarded, it was more the result of a confluence of factors that made for a 

perfect storm. 

 The Secretary makes compelling arguments that Reybold’s knowledge of the cited standard 

along with the findings of an inspection conducted by its insurer in November 2012, referencing 

the fall hazard(s) created by the unguarded balconies put Reybold on notice and should have 

created a “heightened awareness” of these conditions. Sec’y Br. 21-22. However, to establish 

the willful characterization, the Secretary must show that, at the time of the violative act, the 

employer was either actually aware that the act was unlawful or “that it possessed a state of mind 

such that if it were informed of the standard, it would not care.” Propellex Corp., 18 BNA OSHC 

1677, 1684 (No. 96-0265, 1999). Such is not the case here.

 It is established that [redacted]’s immediate supervisor was not working on the day of the 

accident. As a result, the responsibility for giving him a work assignment fell on the Project 

Manager, Greg DaPron. Mr. DaPron wasn’t at the worksite when he received notification that 

[redacted] showed up for work and needed an assignment. Yet, he took the time to travel to the 

worksite to give [redacted] and Keenan Benson a work assignment which was to clean up the 
21 

third floor unit(s). Ironically, the permanent railings for the third floor balconies where Mr. 

DaPron assigned [redacted] to work on the day of the accident had already been installed. Tr. 

65-66, CX-9 at 1-4, 6, 8-10. Mr. DaPron testified that he had never seen [redacted] working on a 

balcony nor had he seen any Reybold employee working on a balcony without fall protection. 

Tr. 390. Also, Mr. DaPron testified that his instruction to Site Superintendent Lloyd Baker was

that “all the balconies were to be protected at all times, which in this [sic] phase of the 

construction meant that either the doors were screwed shut or there was a two by four across the 

door.” Tr. 408. Therefore, Mr. DaPron had no way of knowing that either [redacted] or Keenan 

Benson would be exposed to a fall hazard on that day. In hindsight, even Mr. DaPron conceded 

that, given [redacted]’s need for constant supervision, it would have been a better decision to 

send [redacted] home on the day of the accident. Tr. 399. Nevertheless, his failure to do so can 

be characterized as negligent or a lack of diligence at best. See, Beta Constr. Co., 16 BNA 

OSHC 1435, 1444 (No. 91-102, 1993) (holding that it is not enough to show that Reybold was 

merely careless or displayed a lack of diligence.). 

 In reaching the conclusion that Reybold’s violation of 29 C.F.R. §1926.501(b)(13) was not 

willful, the undersigned also considered the company’s overall attitude toward safety. The 

record reveals that Reybold had a full-time Safety Officer (Frank Bailey) employed at the time of 

the accident Tr. 127. Also, Reybold had a written safety policy on fall protection at the time of 

the accident which had also been provided to [redacted] prior to the accident. CX-10. 

Additionally, Reybold had a Safety Committee in place at the time of the accident and the 

Committee attempted to address issues related to workplace safety prior to the accident. Tr. 336, 

356; RX-34, 35. In sum, the weight of the evidence does not support a finding of “willful”. 

Accordingly, Citation 2, Item 1 is modified from “willful” to “serious”.
22 

Penalty Determination

 The Commission, as the final arbiter of penalties, must give due consideration to the gravity 

of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co., 15 

BNA OSHC at 2213-14 . These factors are not necessarily accorded equal weight, and gravity is 

generally the most important factor. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-

2691, 1992). The gravity of a violation depends upon such matters as the number of employees 

exposed, duration of exposure, precautions taken against injury, and the likelihood that an injury 

would result. J.A. Jones, 15 BNA OSHC at 2213-14. 

 In this case, counsel for Reybold stipulated to the proposed penalties based on the 

undersigned’s findings regarding classification. Tr. 172, 311. Accordingly, the proposed 

penalty of $7,000 for Citation 1, Item 1 is undisputed. Likewise, the modified penalty of $7,000 

for Citation 2, Item 1 is undisputed. This modified penalty is based on a finding that Citation 2, 

Item 1 is properly classified as “serious” rather than “willful” as originally classified by the 

Secretary.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

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

ORDER

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

1. Citation 1, Item 1 alleging a violation of 29 C.F.R. § 1926.503(a)(1) is AFFIRMED as 

issued and a penalty in the amount of $7,000 is imposed.
23 

2. Citation 2, Item 1 alleging a violation of 29 C.F.R. §1926.501(b)(13) is AFFIRMED as 

modified (from “willful” to “serious”) and a penalty in the amount of $7,000 is imposed.

 /s/Keith E. Bell

Keith E. Bell

 Judge, OSHRC 

Dated: April 11, 2017

Washington, D.C.