United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104 

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 16-0097

Camarata Masonry Systems, LTD, 

 Respondent.

Appearances: 

 

Felix R. Marquez, Esquire, U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

For the Secretary

Keith E. Coulter, Esquire, Esquire, Coulter, P.C., Houston, Texas

 For the Respondent

BEFORE: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

Camarata Masonry Systems, LTD was responsible for installing stone for the Two Shell 

Plaza project in downtown Houston. On July 27, 2015, one of its employees was injured while 

unloading a damaged crate, weighing nearly 3,000 pounds, containing marble slabs. The 

employee was hospitalized as a result of his injuries. The Occupational Safety and Health 

Administration conducted an investigation of Camarata’s worksite at 777 Walker Street, 

Houston, Texas, on July 29, 2015. As a result of that investigation the Secretary issued a 

Citation and Notification of Penalty to Camarata on December 4, 2015. 

Item 1 of the Citation alleges a serious violation of 29 C.F.R. § 1926.21(b)(2), for failing 

to instruct employees in the recognition and avoidance of unsafe conditions and the regulations 

applicable to the work environment to control or eliminate hazards. The Secretary proposes a 

penalty of $1,600.00 for this Citation. Camarata timely contested the Citation.

The Court held a hearing in this matter on February 8, 2017, in Houston, Texas. The 

parties filed briefs on April 10, 2017. 
2

For the reasons that follow, the Court finds 29 C.F.R. § 1926.21(b)(2) was not violated. 

Therefore the Court VACATES Citation 1, Item 1. No penalty is assessed.

JURISDICTION AND COVERAGE

The parties stipulate the Commission has jurisdiction over this action and that Camarata 

is a covered employer under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-

678 (Act) (Tr. 18, 19). Based on the parties' stipulations and the record evidence, the Court finds 

the Commission has jurisdiction over this proceeding under § 10(c) of the Act and Camarata is a 

covered employer under § 3(5) of the Act.

DISCUSSION

Background 

Camarata is a masonry construction contractor owned since its inception in 2004 by 

Kevin Camarata,

1 president and general partner, and chief executive officer (Tr. 171-172). It 

consists of a masonry division and a tile and terrazzo division with offices in Houston, Texas, 

and Coconut Creek, Florida (Tr. 173-174). Camarata typically works on large institutional 

projects such as museums and performing arts facilities, or high-rise construction (Tr. 174-175). 

On July 27, 2015, it was engaged in remodeling the outside fascsade2 of an existing building in 

downtown Houston on a project known as the Two Shell Plaza Project (Exh. C-1). Camarata 

was responsible for installing stone and the exterior columns of the buildings, the exterior 

sidewalk floor, and the interior walls for the project (Tr. 229). It also received the stone and 

placed it on the jobsite (Tr. 229). Approximately 20 to 25 employees of Camarata were engaged 

in stone setting and other activities on the jobsite (Tr. 229-230). On the evening of July 27, 

2015, Camarata unloaded crates containing marble slabs from a flatbed semi and placed the 

crates of marble slabs on the jobsite (Tr. 50). The Camarata employees working that evening, in 

 

1 Kevin Camarata formerly was vice president and general manager of Lucia Constructors, a wholly owned 

subsidiary of Linebeck Corp. Lucia is no longer in business and most of its employees migrated over to Camarata 

and that division of Linebeck Corp was dissolved (Tr. 172, 177).

2 CSHO Baez’s inspection narrative (Exh. C-1) provides that Camarata was remodeling the outside fascia. The 

Court concludes that from the context of the evidence “fascia” should be “façade.”
3

or near the area where the unloading of crates was occurring, included Foreman Roger Wagner,3

a helper, and a marble setter/forklift operator4 (operator) (Tr. 88-89, 207; Exh. C-2). 

The flatbed contained eight crates of marble slabs which weighed 350 to 400 pounds 

each. Each crate weighed approximately 3,000 pounds and contained six to seven slabs 

positioned in the crates in an upright position (Tr. 48-49, 50). All except one of the crates was in 

an A-frame configuration. The dissimilar crate was smaller, shaped like a rectangular box and 

was damaged all around the bottom which was loose (Tr. 143, 231). The damaged crate came 

from Camarata’s warehouse and contained the type of slabs Camarata had used on a prior jobsite 

known as the Exxon Mobil Campus Project. The crates were removed from the flatbed with a 

telehandler, 5 a type of forklift which moves laterally, up and down rather than vertically, and can 

tilt the load (Tr. 50-51). The operator was responsible for operating the telehandler to remove 

crates from the semi, place them on the jobsite and distribute the stones (slabs) in various places 

on the jobsite (Tr. 120). 

Once the flatbed containing the crates pulled up to the worksite, Wagner observed that 

one of the crates was damaged (Tr. 230, 232). The operator also noticed the damage and told 

Wagner the crate was broken or chipped. Wagner discussed the damaged crate with the operator 

and how they were going to handle the situation (Tr. 124, 156, 221, 233, 244, 245). The 

operator testified Wagner told him how to unload the broken crate and provided him instructions 

specifically how to unload it (Tr. 127-128). They discussed putting a strap6 around the broken 

crate when removing it from the semi (Tr. 232). Wagner also knew that an A-frame was going 

to be built for the crate that was damaged and testified there was nothing different about building 

an A-frame for this crate than for any other (Tr. 234). He discussed with the operator that a 

bracing system (A-frame) would have to be built for the damaged crate (Tr. 233). After 

providing instructions to the operator, Wagner left the work area to assist in another area on the 

jobsite. Only the operator and a helper were left in proximity of the semi and crates. 

 

3 Roger Wagner has been employed for 6 1⁄2 years as a foreman for Camarata. Prior to that he worked as a foreman 

for Lucia (Tr. 216)

4 The marble setter/forklift operator was the injured employee.

5 “Telehander” and “forklift” were used interchangeably during hearing, despite the differences in how they 

operated. 

6 “Strap” and “sling” were used interchangeably during the hearing. It was used to tie down and secure the load (Tr. 

51-52). 
4

After approximately two hours on the jobsite, apparently without incident, the operator 

had removed all crates except the damaged one, which was chained to another crate. It was left 

for last because it was damaged. After the damaged crate was unchained, the operator placed the 

forklift under the crate and then placed the strap around the crate so it would not fall while he 

unloaded it (Tr. 123-124). The strap was hooked around the sides or edges of the forklift 

carriage, not extending completely around it (Tr. 124-125, 147). After placing the strap around 

the crate, the operator took it down from the truck, with the crate sitting on top of the telehandler 

(Tr. 126-127). 

Once the damaged crate was removed from the flatbed, the operator tilted the forks of the 

telehandler and began removing the sling so he could place 2 x 4’s to build an A-frame to 

stabilize the crate when it was on the ground so it would not fall (Tr. 128). The forks of the 

telehandler were tilted back so that the forks were up when he removed the strap (Tr. 158). The 

operator testified the load was unstable at this point and was still unstable while he took 

measurements for the footings7 (Tr. 130). He had completed measurements for the footings on 

one side and was preparing to measure the second side when the crate fell (Tr. 131). The bottom 

of the crate broke loose and fell over (Tr. 242). When it fell it remained on the forklift (Tr. 126-

127). It fell on the operator, breaking his right foot and left knee (Tr. 132). Wagner testified he 

did not know the kickers were off the crate, and if he had, he would have told the operator to 

make sure it was stable and keep the forks back (Tr. 236). The operator testified he tilted the 

forks, but he did not know why the crate fell (Tr. 158-59, 164). 

No one other than the operator was in the immediate area when the crate fell. The helper 

was located 30 to 40 feet away and Wagner was in an entirely different area 60 to 80 feet away, 

his view blocked by equipment (Tr. 131, 238). After the accident, the helper reached the 

operator first and tried to render assistance. Wagner arrived next and immediately moved the 

forklift because he thought the crate was on top of the operator (Tr. 239). It was not, it only hit 

his leg (Tr. 240). The operator was taken to the hospital where he was treated for a broken right 

tibia and dislocated left knee (Tr. 132-133; Exh. C-1).8

 

 

7 The operator used the term “footers” to identify what the foreman described as “kickers.” The foreman testified the 

footers were already installed and that the kickers, which are usually located on the sides of the crate, were missing 

(Tr. 236). The footers and kickers form the base of the brace (Tr. 128-129, 143, 236).

8 CSHO Baez’s testified the injury was a broken tibia and fractured hip (Tr. 64). 
5

At the time of the accident, the operator had worked with Wagner for 7 years, beginning 

a year after he began working at Lucia. When they first started working together Wagner 

provided him instructions on how to build crates9 (Tr. 138, 144). Wagner taught him the 

importance of using the forks to position the load so it should not fall (Tr. 156). He also told the 

operator to use a strap for stabilizing and explained that if the crate is not strapped, then it could 

become uneven and fall—breaking the stone or perhaps injuring the operator. The operator 

confirmed this when he testified Wagner talked to him about the need to keep the straps on until 

you were convinced the load was stable (Tr. 149-150). At safety meetings, Wagner also talked 

to the operator about the importance of keeping the forks tilted so the load would be stable when 

unstrapped (Tr. 150). 

According to Wagner, the operator had often removed crates from trucks with slings (Tr. 

233). Wagner testified he discussed with the operator the reason for the strap was that some 

loads are unstable and the operator needs to be sure that nothing tips over and either breaks or 

hurts him or another worker (Tr. 233). Wagner also testified he had previously talked to the 

operator about the importance of waiting to remove the strap until he was sure the load was 

stabilized by tilting the fork. However, he did not have that discussion with him on the day of 

the accident (Tr. 235).

On July 27, 2015, Wagner completed a Pre Task Plan (PTP) which reflects he had talked 

to employees about setting stone and distributing stone, proper lifting techniques and watching 

out for pinch, crush and crush points, keeping body parts away from those areas, struck by 

hazards, electrical and respiratory hazards (Tr. 220-221; Exh. R-16.1). Wagner testified he also 

does a weekly Job Safety Analysis (JSA) and conducts Safety meetings, where he provides more 

specific instruction than what is on the JSA and PTP (Tr. 223).

In addition to the instructions received from Wagner, the operator had taken forklift 

training which covered weight and distance, keeping the load balanced so it would not fall off 

and keeping the forks back, (tilting them). He is a certified forklift operator (Tr. 153, 237, 238). 

The operator also received certification for a crane and rigging class in 2011 when he worked for 

Lucia (Tr. 150, 152). 

 

9 From the context of the testimony and questioning, the Court concludes that Respondent’s counsel was referring to 

“frames or bracing systems” when he used the word “crates.” 
6

 The operator testified that on the day of the accident he and Wagner talked about the 

plan to strap the crate and build a brace for it, and that there was a hazard of the stones tipping 

over if they were not adequately tilted or strapped (Tr. 156). He had not talked to Wagner that 

day about when to take the strap off, but had done so in the past (Tr. 156-157). According to the 

operator, he had not previously dealt with a broken crate like the one at issue, which was broken 

on one side only. He also testified that the training they received was not specific for unloading 

broken crates because it was very unusual for a crate to arrive broken (Tr. 128, 133). 

As a result of the accident on July 27, 2015, OSHA Compliance Safety and Health 

Officer (CSHO) Ricardo Baez10 conducted an investigation. He arrived at the Camarata 

worksite two days after the accident, on July 29, 2015, and initiated the investigation. Based on 

CSHO Baez’s investigation, the Secretary issued to Camarata on December 4, 2015, the Citation 

at issue.

CITATION NO. 1

Item 1: Alleged Serious Violation of § 1926.21(b)(2)

In Item 1 of the Citation the Secretary alleges a serious violation of 29 C.F.R. § 

1926.21(b)(2) asserting that “On July 27, 2015 at the job site the employer did not provide 

hazard recognition training for employees performing activities such as, but not limited to, 

rigging.” The Secretary contends employees were exposed to a struck-by hazard as a result of 

improperly rigged crates (Secretary’s brief, pp. 5-7; Tr. 55).

The cited standard § 1926.21(b)(2) provides:

The employer shall instruct each employee in the recognition and avoidance of 

unsafe conditions and the regulations applicable to his work environment to 

control or eliminate any hazards or other exposure to illness. 

The Secretary’s Burden of Proof

The Secretary has the burden of establishing the employer violated the cited standard. 

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

preponderance of the evidence that (1) the cited standard applies; (2) the employer 

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

the violative condition; and (4) the cited employer either knew or could have 

known with the exercise of reasonable diligence of the violative condition.

 

10 CSHO Baez has been employed by OSHA for 7 1⁄2 years. He holds a B.A. Degree in Science and Civil 

Engineering (Tr. 34).
7

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Applicability of the Cited Standard

Section 1926.21(b)(2) is found in Subpart C - General Safety and Health Provisions

of the Construction Standards. The general requirements for training of employees engaged in 

construction work activities are set forth in Subpart C. Camarata was engaged in construction 

work activities involving the installation of stone for the remodeling of Two Shell Plaza. Section 

1926.21(b)(2) applies to the construction activity Camarata was engaged in on July 27, 2015. 

The cited standard therefore is applicable.

 Noncompliance with Terms of the Standard

In determining noncompliance with the terms of the standard found at § 1926.21(b)(2) 

the Commission considers what instructions a reasonably prudent employer would have given: 

Section 1926.21(b)(2) requires the Secretary to “establish that the cited employer 

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

given in the same circumstances.” El Paso Crane & Rigging Co., 16 BNA OSHC 

1419, 1424, 1993-1995 CCH OSHD ¶ 30,231, p. 41,620 (No. 90-1106); see also

Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015, 1991-1993 CCH 

OSHD ¶29,902, p. 40,810 (No. 90-2668, 1992) (holding § 1926.21(b)(2) requires 

that “an employer must instruct its employees in the recognition and avoidance of 

those hazards of which a reasonably prudent employer would have been aware”); 

A. P. Horo Co., 14 BNA OSHC 2004, 2009, 1991-1993 CCH OSHD ¶ 29,223, p. 

39,130 (No. 85-369, 1991) (“Section 1926.21(b)(2) requires employers to instruct 

employees concerning ‘safety hazards which would be known to a reasonably 

prudent employer or which are addressed by specific OSHA regulations’” 

(citation omitted)). In considering whether an employer has met its obligation

under this general standard, “the Commission has specifically considered whether 

a reasonable person, examining the generalized standard in light of a particular set 

of circumstances can determine what is required, or if the particular employer was 

actually aware of the existence of the hazard or a means to abate it.” W. G. 

Fairfield, 19 BNA OSHC 1233, 1235, 2000 CCH OSHD ¶ 32,216, p. 48,865 (No. 

99-0344, 2000)(citation and internal quotation marks omitted), aff’d 285 F.3d 499 

(6th Cir. 2002). Thus, the obligation to train “is dependent upon the specific 

conditions [at the worksite], whether those conditions create a hazard, and 

whether the employer or its industry has recognized the hazard.” W. G. Fairfield, 

19 BNA OSHC at 1236, 200 CCH OSHD at p. 48,865.

Compass Environmental, Inc., 23 BNA OSHC 1132, 1134 (No. 06-1036, 2010). The reasonably 

prudent employer requirement was reaffirmed more recently by the Commission in Bardav, Inc. 

d/b/a Martha’s Vineyard Mobile Home Park, 24 BNA OSHC 2105, 2111 (No. 10-1055, 2014), 
8

citing El Paso Crane & Rigging, supra, where the Commission stated “to establish 

noncompliance, the Secretary must establish that the cited employer failed to provide the 

instructions that a reasonably prudent employer would have given[.]”(emphasis in original)

Therefore, in consideration of this well-settled Commission precedent, the Court must 

determine whether Camarata provided instructions that a reasonably prudent person would have 

given in the same circumstances. Camarata asserts it did. It contends there were no instructions 

beyond those already given to the injured employee that a reasonably prudent employer would 

have known to give to enable the injured employee to better recognize or avoid the hazard 

(Camarata brief, p. 2). The Secretary contends Camarata did not provide instructions regarding 

rigging broken crates and the associated hazards (Secretary’s brief, pp. 5-7). CSHO Baez 

specifically described the hazard as a struck-by hazard for the helper and operator (Tr. 55, 62).

The evidence does not support the Secretary’s contention that Camarata failed to instruct 

the operator in the recognition and avoidance of unsafe conditions in his work environment. The 

operator was a seasoned marble setter and forklift operator, with at least fourteen years of 

experience, four years with Camarata doing the same type of work (Tr. 137-138).11 His job was 

to remove crates from the trucks when they arrived and to place and brace the crates in various 

locations on the jobsite (Tr. 120, 138). He testified to having built thousands of bracing systems

(Tr. 139). In addition to his work experience, the operator had been trained on forklifts and 

cranes and received certifications for such training. The foreman testified the operator handled 

crates all of the time (Tr. 246). The foreman and the operator testified consistently about the 

instructions the foreman provided regarding loading and placing crates both prior to and on July 

27, 2015.12 Their testimony was not disputed. 

At the hearing, the operator appeared nervous. However, he testified confidently 

regarding his training and the events on July 27, 2015. The Court finds his testimony credible. 

The operator testified:

 

11 Wagner testified that the operator had been a forklift operator for him for 15 years (Tr. 246).

12 The operator’s testimony regarding the frequency of working with broken crates differed from the foreman’s. The 

operator initially responded “No” when asked on direct examination if he had handled broken crates (Tr. 133). He 

also testified that crates rarely arrived broken and that he had minimal frequency of handling broken crates (Tr. 133-

134). The Court credits the operator’s testimony regarding his having handled broken crates because it is 

corroborated by the foreman in that respect.
9

Q. And what is the reason why - - well, let me - - who told you to start - - who 

told you to use a strap when the crates need stabilizing?

A. Always talk to the foreman.

Q. And that’s Roger Wagner?

A. Yes.

Q. And had he explained to you that if the crate isn’t strapped, then it could 

become uneven and fall - - breaking the stone or perhaps injuring you?

A. Yes.

Q. And did you and he talk about the need to keep the straps on until you were 

convinced the load was stable?

A. Yes.

Q. And did he talk with you about the importance of keeping the forks tilted so 

that the load would be stable when unstrapped?

... 

A. Yes.

Q. And have you talked about those things at the safety meetings that you have 

every day?

A. It’s always talked about. 

(Tr. 149-150). 

Foreman Wagner testified:

Q. And so there would have been a JSA meeting about - - the first line on here 

says - - it cautions workers about material dropping and balancing overload. And 

the far-right column says to tilt the forks up, right?

A. Yes, that’s what you would do.

Q. And then there’s also a reference to how to use the 2 – by- 4 studs to place 

supports on end of crates so that stone does not fall forward, correct?

A. Yes.

Q. And so even though you may not have discussed these things every day or 

may not even have discussed them on the day that [the operator][ had his 

accident, these are instructions that were provided to the workers on a fairly 

regular basis, is that correct?
10

A. Yes. 

(Tr. 222-223; Exh. R-16.1). 

Q. And did you discuss with him that the reason for the strap was that some 

loads are unstable and you need to make sure that nothing tips over and either 

breaks or hurts him or another worker?

A. Yes.

Q. And did you also discuss that a bracing system would be built for this one 

because it didn’t have one yet?

A. Yes.

(Tr. 233). Wagner testified confidently and without hesitation. He was forthright about what 

instructions he gave and did not give on July 27, 2015. He projected a confident demeanor. 

Accordingly, the Court finds him to be a credible witness. 

The operator’s training and experience must be taken into consideration in assessing 

what instructions a reasonably prudent employer in the same circumstances would give. The 

operator was not a novice employee unfamiliar with the hazards associated with the work he was 

performing. He had a minimum of fourteen years (four with Camarata) of training and 

experience which involved using a forklift to remove and place stones. In addition, the work 

being performed on July 27, 2015, was the same type of work he had performed on Camarata’s 

Exxon Mobil Campus Project and during the ten years he worked at Lucia. When determining 

the adequacy of instructions given to an employee, the Commission considers how effectively 

the information is communicated in light of the employee’s training. S. J. Louis Construction of 

Texas, 25 BNA OSHC 1892, 1895-97 (No. 12-1045, 2016); See also LJC Dismantling Corp.,

24 BNA OSHC 1478, 1481-82 (No. 08-1318, 2014) (finding adequacy of employee’s prior 

training relevant to assessing sufficiency of employer’s instructions).

The uncontroverted evidence shows that on July 27, 2015, once the flatbed with the 

crates arrived, Wagner instructed the operator to use a sling to remove the broken crate. Using a 

sling was not something the operator was unfamiliar with. Wagner testified the operator had 

done this many times before (Tr. 233). When the crates arrived, Wagner also instructed the 

operator to brace the crate (build an A-frame) and tilt the forks of the telehandler to stabilize the 
11

crate. The operator had tilted the forks and was in the process of measuring for putting the 

kickers on the A-frame when the accident occurred (Tr. 130, 158). The operator testified that on 

the day of the accident he and Wagner discussed the plan to strap the crate and build a brace for 

it, and that there was a hazard of the stones tipping over if the crate was not adequately tilted or 

strapped (Tr. 156). CSHO Baez13 testified it was his understanding that the operator and 

foreman did not discuss the importance of tilting the forks when the straps were taken off (Tr. 

94). The CSHO’s testimony on this issue is outweighed by a preponderance of the evidence 

disputing his understanding. Based on the instructions on the day of and prior to the accident, 

the operator was made aware of the hazards and what he needed to do to avoid them. 

Nonetheless, the Secretary contends Camarata failed to provide instructions regarding the 

hazards of broken crates. In support, the Secretary relies on the operator’s testimony that he had 

not handled a crate which was broken on one side like the damaged crate. This reliance is 

misplaced. On the evening of July 27, 2015, the foreman told the operator to put a sling around 

the crate because of its damaged condition, and specifically told him how to remove the crate. 

This is undisputed. The Secretary adduced no evidence as to how these instructions were 

deficient, or regarding additional instructions which should have been provided under the 

circumstances. It is the Secretary’s burden to show how the standard was violated. 

In addition, the Secretary argues, assuming Camarata provided instructions, they were 

ineffective because they were provided in English rather than Spanish. The Court is not 

persuaded by this argument. The operator testified his instructions were in English, however, the 

helper testified instructions were provided in Spanish and that the foreman’s training was 

translated to Spanish by co-workers who speak Spanish (Tr. 165-166, 211, 212). Further, Mr. 

Camarata testified most of the company’s training was done in two languages (Tr. 190). The 

Court credits this testimony over that of the operator. In addition, the record shows the operator 

speaks and understands English. Although he testified with the assistance of a translator at the 

hearing, it was clear to the Court the operator understood at least some of the questions when he 

responded in English rather than waiting for the interpreter to translate. More importantly, even 

if his understanding of English is limited, his testimony shows he understood the safety measures 

 

13 CSHO Baez’s investigative documents and testimony showed some inconsistencies and conclusions which were 

refuted by a preponderance of the evidence, thereby challenging the reliability of his investigation findings. 

Therefore, his investigation findings will only be accorded weight when corroborated by other evidence. 
12

taught to him by Wagner, and as a result of the programs he attended from which he received 

various certifications. Other than the instant incident, the record is devoid of any evidence the 

operator lacked an understanding of how to perform his job according to the training and 

instructions he had received from the company. Even if the court were to credit the operator’s 

testimony that the instructions were all in English, the record does not show they were 

ineffective.

To further support his position, the Secretary argues the operator was not trained to undo 

the straps on the load (Secretary’s brief, p. 6). This argument also fails. Although Wagner 

admits he had not told the operator on July 27, 2015, when to remove the sling, he previously 

had explained to the operator to not remove a sling until the crate was stable (Tr. 149-150). The 

operator testified he was so instructed. Even so, he appears to have disregarded those 

instructions. He did not ensure the crate was stable before removing the sling, despite knowing 

the crate was unstable when he removed the sling to conduct his measurements for the 2 x 4’s 

(Tr. 130). His testimony confirms he was fully aware of the hazard and knew that tilting the 

forks of the telehandler was a way to keep the load from falling. 

Finally, the Secretary does not specifically argue Camarata failed to provide instructions 

regarding the kickers. However, the Court finds the evidence shows Wagner did not know the 

crate was missing the kickers. Wagner testified he would have given additional instructions to 

the operator, to make sure the crate was stable and to keep the forks back, had he known (Tr. 

236-237). Camarata’s foreman instructed the operator regarding the hazards he was aware were 

present at the jobsite. The Commission considers whether an employer was actually aware of the 

hazard in assessing what a reasonably prudent employer would do in the circumstances. W. G. 

Fairfield, supra. The Secretary also has not established that Wagner should have known the 

kicker was missing. 

The Secretary has failed to show that Camarata failed to provide instructions to its 

employee that a reasonably prudent employer would have given under the same circumstances. 

Accordingly, Citation No. 1, Item 1 is VACATED.

Unpreventable Employee Misconduct Defense

Unpreventable employee misconduct is an affirmative defense that must be proven by the 

employer. American Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2097 n.4 (No. 10-0359, 2012). 
13

To prove this defense, “an employer must show that it established a work rule to prevent the 

violation; adequately communicated the rule to its employees, including supervisors; took 

reasonable steps to discover violations of the rule; and effectively enforced the rule.” SchulerHaas Electric Corp., 21 BNA OSHC 1489, 1494 (No. 03-0322, 2006) (citations omitted). An 

employer may rebut the Secretary’s prima facie showing with evidence that it took reasonable 

measures to prevent the occurrence of the violation. In addition, the employer has the burden of 

showing “that the violative conduct of the employee was idiosyncratic and unforeseeable.” L. E. 

Myers Co., 16 BNA OSHC 1037, 1040 (No. 90-945, 1993) (L.E. Myers).

Camarata raised the defense of unpreventable employee misconduct in its Answer and 

made references in its brief to suggest it had not completely abandoned the defense. Since the 

Court finds the Secretary has failed to establish a prima facie case regarding the cited standard 

found at § 1926.21(b)(2), it is not necessary for the Court to address Camarata’s unpreventable 

employee misconduct defense. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

accordance with Fed. R. Civ. P. 52(a).

ORDER

Based on the foregoing decision, it is hereby ORDERED: 

Item 1 of Citation No. 1, alleging a violation of § 1926.21(b)(2), is VACATED and no 

penalty is assessed.

SO ORDERED.

/s/ 

 ______________________

Date: May 26, 2017 SHARON D. CALHOUN

 Administrative Law Judge 

Atlanta, Georgia