UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

DECISION AND ORDER

Appearances:

Megan J. Harris, Amy Tai, Attorneys, Office of the Solicitor, U.S. Department of Labor, New York, NY, for Complainant

Jeremy K. Fisher, Attorneys, Amy Conley, Jackson Lewis, P.C., Atlanta, GA, for Respondent

BEFORE: John B. Gatto, United States Administrative Law Judge

I. INTRODUCTION

II. BACKGROUND

As Irwin and Calderon waited for their meal, Calderon noticed someone on the roof of the Sonic restaurant across the street. (Tr. 22). She testified that initially she noticed two men on the roof who left the roof soon thereafter. (Tr. 23, 36). About fifteen minutes later, Calderon saw that one man, later identified as Heim, had returned to the roof, and appeared to be working. (Tr. 24, 25, 30, 37, 44). Calderon stated that from her perspective, she could not see the worker’s legs below the knee. (Tr. 27, 39). Calderon testified that she did not believe Heim was attached to a fall protection system because she could not see a fall restraint rope attached to  Heim. (Tr. 26, 28, 39-40).

Irwin also saw someone wearing a fall protection harness around walking around and looking at the roof’s surface as if he were inspecting the roof. (Tr. 57-58). Because they appeared to be inspecting the roof and not performing work, Irwin and Calderon concluded fall protection was not required. (Tr. 23-24, 36). About fifteen minutes later, as their meal arrived at their table, Irwin noticed that a person on the roof, later identified as Heim, was kneeling, and appeared to be working on an antenna that was several feet away from the roof’s edge. (Tr. 24-25, 48, 58-59).

At this point, Irwin determined that Heim was not just inspecting the roof but was actively engaged in work and took twelve photographs from her position inside the restaurant. (Tr. 59, 85-88; Ex. P-1, pp. 1-12). The sky in the background of these photographs is overcast and greyish blue. (Ex. P-1, pp. 1-12). Irwin testified she watched from the restaurant and could see there was no fall restraint rope attached to the D-ring on the back of Heim’s fall restraint harness. (Tr. 74, 78, 88; Ex. P-1, p. 10). Specifically, Irwin testified, “when I looked across the way when we had been taking photos, Heim had been twisted in a manner that we could see his D-ring and I could see that there was nothing attached to it at the time when I took the photos.” (Tr. 74).

Yet, the photographs show a front or side view of Heim, not the middle of his back where the D-ring is located. (Ex. P-1, pp. 1-12). Despite Irwin’s testimony that she could see the D-ring on Heim’s back, the D-ring is not visible in the photographs. (Tr. 186-87). Irwin also testified that while she was at the restaurant, she believed she saw a parapet wall around the roof but later learned that what she believed was a parapet wall was instead just a short curb a few inches high. (Tr. 71, 186-87; Ex. P-1, p. 8). Irwin’s testimony regarding the parapet demonstrates the difficulty in accurately assessing the worksite conditions from a restaurant across the street.

During the trial, Heim reviewed the twelve photographs Irwin had taken from the restaurant and opined it was unlikely one would be able to see whether he was tied off to the fall restraint rope due to the significant distance and limited clarity of the photographs—and further, he opined it was even difficult to see the two-to-three-inch-wide yellow straps of the fall harness he wore.  (Tr. 205-07; Ex. P-1, pp. 1-12).

Worksite

The job at the worksite was a day-long assignment that included installing a DISH antenna on the roof, running the connection cable, and aligning the antenna­. (Tr. 194-95, 267). The connection cable ran from the antenna on the roof, through a small pipe, into an interior office below. (Tr. 195, 340). Most DISH installations were done by one person; however, because it was a roof-top installation, Barrett assisted Heim in getting the equipment and materials onto the roof. (Tr. 256, 337-38).

 That morning, before going to the worksite, Barrett loaded Heim’s work truck with the required fall restraint kit (personal fall arrest system) and other equipment needed for the roof-top installation. (Tr. 238, 305, 326). Heim arrived at the worksite before Barrett and conducted a walk-around (site survey) to determine where the DISH equipment would need to be located, assess the area where the installation would take place, and coordinate with the customer. (Tr. 262-63, 307-08, 311). As part of the site survey, Heim also evaluated the interior office to determine how the cable would be fed through the roof, via a pipe, into the office below. (Tr. 195-96, 262, 340).  

The antenna was a square box mounted on a pole that was about five feet tall and was installed about six to seven feet from the roof’s edge on the front side of the Sonic building. (Tr. 194-95, 202, 250-51, 264). The pole was on a rubber mat, which was secured to the roof using concrete blocks. (Tr. 212-13). The pipe where the cable was fed into the interior office was about ten feet away from the antenna and the roof’s edge. (Tr. 252, 264, 286; Ex. P-1, p. 17).

During the installation, Barrett worked from the office inside and Heim worked from the roof’s surface. (Tr. 195-96, 262). Before heading into the office inside, Barrett climbed the ladder to observe Heim. (Tr. 309-10, 325-26). Heim lifted the fall restraint rope to demonstrate to Barrett that he was attached and anchored to the HVAC unit. (Tr. 309-10, 325-26). Because Barrett could not see Heim while he was inside the office assisting Heim in feeding the cable through the roof into the interior, they used phones to communicate with each other. (Tr. 310, 360). Heim clipped and unclipped several times that morning as he returned to the work van for additional tools and equipment. (Tr. 203, 205-06, 228, 239, 241).

OSHA Inspection

When she was a few feet from the building, Irwin called up to Heim and asked him to come down from the roof. (Tr. 61, 72-73, 89). At that time Heim was on the phone with Barrett and he informed Barrett that someone had asked him to come down from the roof. (Tr. 203-04; Ex. P-1, pp. 13-16, 61, 203). As Irwin walked around the building toward the ladder, Barrett came from inside the building and introduced himself to Irwin as the supervisor at the site. (Tr. 61).

Irwin introduced herself and told Barrett that she had “stopped to do an inspection because [she] noticed that the employee on the roof was not connected” to fall protection. (Tr. 61). Irwin asked Barrett to explain why the employee was not connected. (Tr. 62, 73-74, 78). Irwin testified that Barrett responded with “a couple of short statements, something along the lines -- and I don’t have it memorized, so I’m going to kind of estimate, but along the lines of ‘[w]e have a restraint harness. It’s up on the roof.’” (Tr. 62). Irwin testified that when she asked Barrett why it wasn’t being used, “the statement was, ‘[w]e didn’t take the time to move it’ or somewhere along that line. That’s not verbatim from my notes, without looking at them.” (Ibid.)  Heim had not yet come down from the roof when Barrett responded to Irwin’s question. (Tr. 63).

Irwin’s contemporaneous field notes state that she heard Barrett say: “restraint harness up on roof,” “tie-off too far” and “didn’t take time to move.”  (Tr. 92, 164; Ex. P-2). Irwin testified that Barrett said the anchor point was somewhere in the middle of the roof. (Tr. 77). However, Barrett did not recall providing information about the location of the anchor point on the roof to Irwin. (Tr. 318, 324).

When Heim came down from the roof, Irwin asked him for his name and contact information, but never interviewed him and never asked him where the anchor point was located on the roof and never asked him whether he had worked on the roof without fall protection. (Tr. 63-65, 73-74, 178, 265-66). She simply obtained Heim’s name and contact information. (Tr. 63-65, 178, 265, 324). Irwin admitted she never attempted to interview Heim or get a written statement from either Heim or Barrett. (Tr. 75-76). Irwin also admitted she never asked Barrett if he knew whether or not Heim was tied off. (Tr. 78). And Barrett testified that Heim never told him he had worked without using fall protection. (Tr. 315).

Heim testified he had the harness on the entire time, that he had a fall restraint rope with him on the roof, which was attached to air conditioner. (Tr. 196). Although at both Heim’s deposition and at trial, he could not confirm that he was clipped to a rope in any one of the photos, Heim explained, “I had to take the rope off 20 to 30 times as I was going up and down, moving stuff, setting up equipment.” (Tr. 205). “You know, I think at some point we were feeding cable through the hole and the cable broke, and I had to go back to the van.” (Ibid.) “It was quite the process.” (Ibid.) This testimony is also corroborated by his testimony that a couple months after the job, he was on a conference call and at that time was told that he had attached the rope wrong, “there was a -- I forgot the name of the device, but it has a big strap on it and a hookable kind of thing that you put the rope through that won’t let it go back the other way.” (Tr. 200).

Heim asked if he could return to the roof to work, and Irwin said that he could as long he used fall protection. (Tr. 65, 178). Heim returned to the roof, attached to the anchor point and walked over to the area near the antenna. (Tr. 67, 245, 354). Irwin asked Heim to pose for two photographs (“abatement photographs”) to demonstrate that he was tied-off. (Tr. 67, 89-90, 157, 244-45, 313; Ex. P-1, pp. 1-2, 17-18).

 In the abatement photographs, Heim is standing near the mounted antenna, about ten feet from the roof’s edge and facing the camera with his right hand resting on the antenna. (Tr. 89-90, 205-06; 250-51; Ex. P-1, pp. 17-18). Barrett testified Heim walked as far as possible from the attachment point to ensure the rope would be visibly taut for the abatement photographs. (Tr. 354). However, Heim is facing the camera, so again, the D-ring located on the back of his fall protection harness is not visible in the photographs. (Tr. 67, 89-90; Ex. P-1, pp. 17-18).

In reviewing the abatement photographs at trial Irwin testified she saw an outstretched rope or line that seemed to extend away from Heim’s back to an unseen anchor point, which appeared to her to be a dark or black rope, about one inch in diameter, the type typically used in fall protection systems. (Tr. 67, 75, 89-90). Irwin did not explain how she determined the details of the rope from her position on the ground. (Tr. 75). Irwin conceded that the abatement photographs show Heim in a different position and posture than the photographs she had taken from the restaurant— in the photographs taken from the restaurant, Heim was “kneeling, kind of leaned forward, working on the equipment”— in the abatement photographs taken at the worksite Heim is standing near the antenna and facing the camera. (Tr. 108). After the photographs were taken, Irwin left the worksite. (Tr. 69-70). Even though she could not see the anchor point or the D-ring on Heim’s back, Irwin believed the two photographs were evidence of abatement—compliance with fall protection requirements—because she saw a rope coming away from Heim’s body. Irwin assumed the rope she saw was attached to the D-ring on Heim’s back and to an anchor point. (Tr. 67-68, 74-75, 89-90).

III. ANALYSIS

“To implement the Act’s legislative scheme, Congress imposed two duties on employers.” New York State Elec. & Gas Corp. v. Sec’y of Lab., 88 F.3d 98, 104 (2d Cir. 1996). “First, an employer has a general duty to ‘furnish ... employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.’” Ibid. (quoting 29 U.S.C. § 654(a)(1)). “Second, an employer has a duty to comply with the more specific safety and health standards promulgated under the Act.” Ibid. (citing 29 U.S.C. § 654(a)(2)).

Further, “Congress provided for the promulgation and enforcement of workplace standards through a comprehensive regulatory scheme. Regulatory responsibilities under the Act are divided between two administrative entities.” Id. at 103. “The Secretary of Labor exercises rulemaking and enforcement powers, establishing the standards, investigating employers to discover non-complying conduct, issuing citations, and assessing monetary penalties.” Ibid. (citing 29 U.S.C. §§ 655, 657–59). “The Commission exercises adjudicative powers and serves as the ‘neutral arbiter’ between the government regulatory body and an employer.” Ibid. (quoting Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam)). Therefore, Congress vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.” CF&I, 499 U.S. at 151.

To establish a prima facie violation of applicable occupational safety and health standards, the Secretary must show by a preponderance of the evidence that “(a) the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access to the violative conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions).  Jake’s Fireworks Inc. v. Sec’y of Labor, 893 F.3d 1248, 1256 (10th Cir. 2018) (citing Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994)). See also, Walsh v. Walmart, Inc., 49 F.4th 821, 827, 2022 WL 4842041 (2d Cir. 2022).

Alleged Violation

Applicability of Standard

DISH “does not dispute that, based upon the work being performed, the cited standard would apply to the worksite conditions.” (Resp’t’s Br. ¶IV(a) at 14). The antenna was installed on a flat roof with an unprotected edge that was fourteen feet above the next lower level. Therefore, the Court concludes the Secretary has established the cited standard applies to the cited condition.

Employee Exposure

        Heim worked approximately six to seven feet from the roof’s edge to install the antenna. Heim was exposed to the fall hazard. See Daniel Int’l Corp. v. Sec’y of Labor, 705 F.2d 382, 388 (10th Cir. 1983) (“the Commission has determined that the Secretary need show only the existence of the hazardous condition and its accessibility to employees in order to satisfy the burden of proving exposure). The Court concludes the Secretary has established employee exposure.

Whether DISH Violated Standard

 The Secretary’s proof that Heim was not tied off to an anchor point rests heavily on the photographs taken by Irwin. The Court finds these photographs are not sufficient to demonstrate by a preponderance of the evidence that Heim was not using the fall protection equipment at the worksite. Binding Circuit court and Commission precedent dictate against solely relying on photographs as proof of a violation.18 Here, twelve photographs in evidence were taken from 175-200 feet away from the worksite when Irwin was across the street in a restaurant, against a cloudy overcast sky, which lack the detail to determine whether a one-inch grey rope is present. None of the twelve photographs show the back of Heim’s fall protection harness.

Towever, the Court concludes these photographs show that neither Irwin nor Calderon could accurately determine whether a fall restraint rope was anchored and attached to the D-ring on Heim’s fall arrest harness from their position in the restaurant. Although both Irwin and Calderon believed Heim was not tied off because they could not see a fall restraint rope attached to him from their vantage point across the street, none of the photographs taken from that distance show Heim’s back where the D-ring on the fall protection harness is located. The inability to see a one-inch rope from that distance (175-200 feet) does not prove Heim was not using the fall restraint system. Given the distance from the restaurant to the worksite, the Court does not credit Calderon’s statement since there was no evidence she even saw the D-ring on the back of Heim’s harness, and she never went to the worksite. (Tr. 37).

The Court also does not credit Irwin’s testimony. Although Irwin took four photographs from a closer vantage point when she entered the worksite, in these photographs Heim is kneeling on the roof and his back is not visible where the restraint rope attaches. None of the photographs support Irwin’s testimony that the fall restraint rope was not attached to the D-ring on Heim’s back or to the anchor point. And even though Irwin did visit the worksite, she never went up the ladder to personally observe whether Heim was tied off and never bothered asked Heim if he was tied off. The Court also does not credit Irwin’s testimony because she testified that she could see the D-ring on Heim’s back from her vantage point inside the restaurant, even though the D-ring is not visible in the photographs she took from that same vantage point inside the restaurant.

On the other hand, the Court found both Barret and Heim to be credible witnesses. The Court credits Barrett’s testimony that he climbed the ladder to observe Heim, and that Heim lifted the fall restraint rope to show Barrett that he was attached and anchored to the HVAC unit. The Court also credits Barrett’s testimony that Heim never told him he had worked without using fall protection. The Court also credits Heim’s testimony. Although at both his deposition and at trial, he could not confirm that he was clipped to a rope in any one of the photos, he explained that he had to take the rope off 20 to 30 times, “as I was going up and down, moving stuff, setting up equipment.” (Tr. 205). “You know, I think at some point we were feeding cable through the hole and the cable broke, and I had to go back to the van.” (Ibid.) “It was quite the process.” (Ibid.) This testimony is also corroborated by his testimony that a couple months after the job, he was on a conference call and at that time was told that he had attached the rope wrong. (Tr. 200). The Court concludes the preponderance shows that Heim was attached to the fall restraint system. Therefore, the Secretary has failed to prove the standard was violated.

Whether DISH Had Knowledge

“The Secretary has the burden of showing that the employer knew or, with the exercise of reasonable diligence, could have known of the likelihood of the noncomplying condition or practice.”  Austin Bldg. Co. v. Sec’y of Labor, 647 F.2d 1063, 1067-68 (10th Cir. 1981) (Austin Bldg.) (citations omitted); see also, New York State Elec. & Gas Corp. (NYSEG) v. Sec’y of Labor, 88 F.3d 98, 105 (2d Cir.1996) (knowledge under the Act includes all knowledge that “with the exercise of reasonable diligence, [the employer] could have known”).  The employer’s knowledge is directed to the physical condition that constitutes a violation. Phoenix, 17 BNA OSHC at 1079-1080 (citations omitted) aff’d, 79 F.3d 1146 (5th Cir. 1996). Actual or constructive knowledge may be imputed to the employer through its supervisory employee. NYSEG, 88 F.3d at 105.

Here, it is undisputed that Barrett was at the worksite and that Barrett was Heim’s supervisor. Thus, knowledge to DISH may be imputed through Barrett. The Secretary asserts there is actual knowledge because, according to Irwin, during the inspection, Barrett admitted that Heim worked without fall protection equipment. (Sec’y’s Br. 24). DISH asserts there is no evidence that Barrett had actual knowledge. (Resp’t’s Br. 24-25). DISH contends that Barrett did not admit to Irwin during the inspection that Heim was working on the roof without the use of fall protection equipment. (Resp’t’s Br. 25). And DISH argues Barrett could not have seen from the building’s interior whether Heim was attached to the fall restraint rope. (Resp’t’s Br. 26-27). The Court finds actual knowledge is not proved.

At the beginning of the workday, Barrett observed, from the ladder, that Heim was attached to the fall restraint rope. (Tr. 310, 325-26). Heim lifted the rope to show Barrett that it was attached to the fall protection harness. (Tr. 310, 325-26). After that, Barrett worked from the interior of the building where he assisted with feeding the antenna’s cable from the roof to the interior. (Tr. 308). Barrett did not observe Heim working on the roof without the use of fall protection equipment. Further, both Heim and Barrett testified that at no time did Heim tell Barrett that he was not using his fall protection equipment. (Tr. 263, 313-14).

Reasonable diligence did not require DISH to continuously verify Heim was following its safety policy. See  NYSEG, 88 F.3d at 109  (“[i]nsisting that each employee be under continual supervisor surveillance is a patently unworkable burden on employers”); see also, Capital Elec. Line Builders of Kan., Inc. v. Sec’y, 678 F.2d 128, 131 (10th Cir. 1982) (“The Commission concedes that the supervisor is not required to actually accompany the employees in the aerial bucket or to oversee their work from below, and indeed such a requirement would be unreasonable.”), and Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 1995) (“where the employer maintains an appropriate monitoring or inspection program, the burden is on the Secretary to demonstrate that the employer's failure to discover the violative conditions was nevertheless due to a lack of reasonable diligence”).

The Secretary also argues that Prestressed Systems, Inc., 9 BNA OSHC 1864, 1869-70 (No. 16147, 1981) supports his assertion that Barrett should have done more on a continuous basis to verify Heim was using the fall protection equipment, such as observing Heim from outside or from the top of the ladder. (Sec’y’s Br. 26). This is an inapt comparison. In Prestressed, the hazard was a hidden defect in the formwork and the cited standards included a requirement to inspect the formwork. Prestressed, 9 BNA OSHC at 1869-70. And the Commission found constructive knowledge based on the admission by a company representative that the violative condition could have been caught during an inspection and that no inspection had been conducted. Ibid. This is not comparable to the instant case.

The Court concludes the Secretary did not prove a lack of reasonable diligence and thus did not prove constructive knowledge. See Austin Bldg., 647 F.2d at 1068 (“employer justifiably relied on its employees to comply with the applicable safety rules and that violations of these safety policies were not foreseeable or preventable” where safety policies were effectively communicated and enforced). Thus, actual, and constructive knowledge were not proved. And even if it was, the Court concludes the conduct was not foreseeable.

For all the foregoing reasons, the Court concludes the Secretary has failed to establish all the elements of his prima facie case because he failed to prove the cited standard was violated and failed to prove DISH had knowledge of the violative condition. Accordingly,

VI. ORDER

IT IS HEREBY ORDERED THAT the citation is VACATED.

SO ORDERED.

                                                /s/                               

                                                JOHN B. GATTO, Judge

Dated: March 18, 2025

Atlanta, GA