The key issues in dispute are whether the Secretary established by the preponderance of the evidence that 29 C.F.R. § 1926.501(b)(13) applied to the facts of this case and whether Respondent did not comply with 29 C.F.R. § 1926.501(b)(13) on October 4, 2022.

For the reasons set forth below Citation 1 Item 1 is VACATED. Any argument set forth by the parties that is not specifically addressed below has been considered and determined to have no merit.

JURISDICTION

Based on the record, the undersigned finds Respondent, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5). (J-1 ¶¶ (c)(1), (c)(2), (d)(1), (d)(2)). The undersigned finds the Commission has jurisdiction over the parties and subject matter of this case.

FINDINGS OF FACT

The Company & Project

Trinity installs solar panels on residences, and operates in New Jersey, Maryland, Pennsylvania, New York, Connecticut, Massachusetts, Rhode Island, and Florida. (Tr. 637-638; J-1 ¶¶ (c)(1), (3)). Over 30 years, Trinity has grown from a five-employee heating and air conditioning company serving commercial and residential customers to a residential-only solar panel installation company employing 3,236 workers. (Tr. 637-638; J-1 ¶ (c)(3)). Trinty’s revenue exceeded $10 million dollars in 2022. (J-1 ¶ (c)(4)). Trinity averages 40-70 jobsites on a given day. (Tr. 435).

In October 2022, Trinity was engaged in solar panel installation on a two-story single-family home in South Orange, New Jersey. See, e.g., Ex. C-1, C-3 (photographs of the worksite); (Tr. 65, 80). As relevant to this case, the multi-day project entailed installing solar panels on two separate roofs of the residence – the upper roof which was at 22 feet height and the lower roof which was at 12 feet height. (Tr. 66, 72, 603, 798).

Four workers worked on the upper roof – two on one side of the ridge line (as shown on pictures of the roof at issue) and two on the opposite side of the ridge line (not shown on pictures of the roof at issue). (Tr. 233-234, 238-240; Ex. C-1 at 21A). Two workers worked on the lower roof. (Tr. 80; Ex. C-3). The workers accessed each roof using two designated ladders – one “large” ladder to the upper roof and another ladder to the lower roof. (Tr. 252). While working on the roofs, Trinity workers all wore personal fall arrest systems (PFAS) for fall protection. (Tr. 688-689).

The most critical aspect of the PFAS is that it must be connected to an anchor on the roof to provide protection from falling. See Ex. R-3 at 18 (“The ABCs of Personal Fall Arrest Systems: Anchorage, Body Harness, Connector”). On the first day of the South Orange project, in accordance with Trinity’s fall protection policy, Camacho “and another person” installed anchors on the upper roof and lower roof for use by Trinity workers for their PFASs. (Tr. 80-81). Per Trinity policy, and as relevant in this case, the anchors on each roof were not moved or removed until the entire project was finished (about a week and half after the incident). (Tr. 44, 135, 251, 363, 788).

Q: If they come to a job site they had been working on, on a previous day, their ropes would still be on the roof, correct?

A: Normally, no, because, normally, at the end of the day, they still remove the lifelines even though the job is not done. They don't normally leave them hanging there. They take them down at the end of each day. That's what I was trying to explain . . .  about yesterday, because the incident that we were talking about, it was roped off with a police rope, we weren't allowed to go there. We were shut down, so the ropes were left there.

Q: Okay. So, under Trinity practice, if workers are coming to an existing job site they haven't been on, they would change out the ropes for their own ropes. Let me then go back to that situation. And that's correct?

A: Yeah. The anchors would be there, but there would be no ropes there. They would be using their own personal issued ropes.

Q: Okay. And so, they would do that by going on the roof and changing out their rope lines?

A: You keep saying changing out the rope lines. The rope lines are taken down at the end of the day. If they came back to a job that they were never at, in most cases, the anchors are up there, but their ropes are not because the employees that were there previously took their ropes down at the end of the job that day.

(Tr. 780-781).

The Incident

OSHA Inspection

Respondent’s Safety Program

Trinity is no stranger to OSHA fall protection regulatory requirements. Respondent has a fall protection safety program, including training and a robust self-audit monitoring program of worksites. Exs. C-8, C-10, C-11, C-12, R-3, R-4, R-5, R-18, R-19, R-22 at 1, R-22 at 8, R-34 to R-43, R-45. Trinity also has two prior Commission final orders of fall protection violations of the cited standard, section 1926.501(b)(13) – one from September 2019 and the other from August 2022. (Sec’y Br. 36; Resp’t Br. 25-26; Ex. C-13; Tr. 557). The record supports a finding that Trinity was aware of fall protection requirements on its worksites and provided training and PPE to its workers and communicated fall protection safety rules and monitored its jobsites, to facilitate a safe working environment.

[A] fall arrester protects the employee in the event he or she should fall, helps absorb the impact of the fall… A work-positioning device prevents the employee from falling. It does not allow them to fall. It holds them in position while working. They can only move left and right. They can't move up and down.

(Tr. 774).

Notably, Rucki testified that sometimes workers switch from fall arresters to a work positioning device while they are on the roof.

Looking at [the picture of the upper roof], what it looks like, again, I don’t know because I wasn’t there. But in a lot of cases, what they do is the worker starts off with the positioning device first. Once they get the rails and they feed it and they’re ready to start moving around the rails to prep the panels, they then switch to the fall arrest, and they take that and toss it to the side.

(Tr. 665-666 referring to Ex. C-1 at 22B). Rucki explained that the work positioning device is also known as a “Y-lanyard” and the “fall arrester” is also known as a “shock pack,” and that both are used “in the ordinary course of its installation,” including at the South Orange worksite. (Tr. 617, 692-695; Ex. C-1 at 22B; Ex. R-3 at 17-18).

CITATIONS

To prove a violation of an OSHA standard, the Secretary must establish by the preponderance of the evidence: (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the employer knew or could have known of the condition with the exercise of reasonable diligence.  Donahue Indus., Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 1994); Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

Citation 1, Item 1

Citation 1, Item 1 alleges a repeat-serious violation of 29 C.F.R. § 1926.501(b)(13), which provides that:

Residential construction. Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.

29 C.F.R. § 1926.501(b)(13). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.501(b)(13) when:

1. a.[South Orange, NJ] 

Employees working on a residential roof, 22-feet above the ground and 12-feet above the ground, did not utilize any means of fall protection during the process of entry upon and exit from the roof. Violation occurred 10/04/2022.

(First Amended Complaint ¶ V). The Secretary proposed an $85,938 penalty for this alleged repeat-serious citation item.

Applicability

The undersigned finds that OSHA’s construction standards generally apply to Respondent’s worksite. The project in South Orange, New Jersey entailed installing solar panels to a residential rooftop. This task fits into the plain definition of construction work as defined by OSHA. See 29 C.F.R. § 1910.12(a) (construction industry standards prescribed in Part 1926 apply to “every employment and place of employment of every employee engaged in construction work.”); 29 C.F.R. § 1910.12(b) (“construction work” as used in section 1910.12(a) “means work for construction, alteration, and/or repair, including painting and decorating.”)  Respondent also does not claim that OSHA’s residential construction standards do not generally apply to its worksite for this citation item.

Facts Surrounding the Decedent’s Fall

The Secretary argues that the preponderance of the evidence establishes that the decedent “fell while stepping onto the roof,” rendering the standard applicable. (Sec’y Br. 5-6). The Secretary claims that the pictures from before and after the incident establish that the decedent “caused a dent in the gutter during his fall.”  (Sec’y Br. 5, 13-14). The Secretary also claims that it is “more likely than not” that the decedent fell from the roof than the ladder based on previous incident reports held by Respondent. (Sec’y Br. 6, 14-15). Respondent argues the record does not establish that the decedent was accessing the roof or on the roof at the time of the fall. (Resp’t Br. 9). The undersigned agrees with Respondent.

The Secretary relies on an alleged statement taken from a Trinity post-accident interview of Werling Calderon, one of the four workers on the South Orange worksite who worked on the upper roof. (Sec’y Br. 5, 13-14; Tr. 79). According to the Secretary, Calderon told Trinity that he saw the decedent fall from “up around the gutter area of the roof.”  (Tr. 578-579). Calderon’s vague statement does not answer the fact question regarding where the decedent was at the time he fell, whether it was from the ladder, while entering the rooftop, or from the rooftop itself.

Additionally, this statement involves several layers of hearsay. (Tr. 763-769). Rucki testified regarding an out of court statement made to him by an employee. Calderon was on both parties’ witness lists and attended the hearing. (Tr. 12). He was not called by either party to testify. This statement is therefore given little weight – and – alone does not resolve the fact issue. Even with this statement, it is possible that the decedent was around the gutter area – and – on the ladder. The Secretary also relies on previous Trinity injury records to show “the generally accepted view that falls are less likely while ascending a ladder.”  (Sec’y Br. 14). The undersigned rejects this attempt at buttressing the Secretary’s speculative argument that “it is more likely than not that [the decedent] was on the roof or stepping onto the roof at the time of his fall[.]” (Sec’y Br. 15).

Furthermore, the photographs cited by the Secretary in her brief are taken from different vantage points – the status photograph from the rooftop, the inspection photo from the ground 22 feet below. They do not clearly show a changed / damaged gutter. The anticipated change to a rooftop gutter from the fall weight of an adult male is not depicted. Furthermore, the suggestion of the photographs depicting a change is introduced into the record via leading questions to workers, testifying through two levels of Spanish/English translation - translation at a deposition, which deposition testimony was again translated at the hearing. (Tr. 134, 152-155, 161-162, 322-323).

The Secretary notes that Respondent did not make a damage report of a damaged gutter regarding this job site. (Sec’y Br. 6, 13-14). As the record reveals Respondent’s practice of noting damage to the home worksite during installation projects, the absence of a damage report here supports the finding that the gutter does not reveal gutter damage – or a change in the gutter’s appearance – based on this worksite solar installation or the work or conduct of the installers during this job.  This is consistent with the photographs that do not reveal a notable change in the appearance of the gutter.

Therefore, the facts surrounding the decedent’s fall do not establish applicability in this matter.

Facts Surrounding the Practices on the Worksite

Other facts in the record, however, establish applicability of this standard. On the South Orange worksite, on October 4, 2022, four workers worked on the upper roof and two workers worked on the lower roof before lunch. The locations of their work were photographed and marked by witnesses during the hearing. All those workers were entering and exiting the rooftops from two ladders. As Juarez testified, “[t]he employee goes up the ladder, he reaches a certain point, and then he takes the point of the connector to connect himself.”  (Tr. 346). The undersigned finds that the cited residential fall protection standard applies to Respondent’s general practice of ascending a ladder, accessing a roof, and working from a residential rooftop at 22-feet and 12-feet, all of which occurred on October 4, 2022.

The cited standard applies.

Non-Compliance 

 There is no evidence that Trinity employees worked on the rooftop on October 4, 2022, without fall protection on the South Orange worksite. The decedent’s fatal fall alone does not establish noncompliance with the cited standard. If the decedent fell from the ladder, the cited standard did not apply and could not be violated. As found above, the record evidence does not establish the location from which the decedent fell and so therefore, the undersigned finds that the Secretary did not establish noncompliance with the cited standard based on the facts surrounding the decedent’s fatal fall.

The rest of the Secretary’s case is built on the photographs that CSHO Ajayi took after the fatal fall. The Secretary argues that Respondent must have violated the cited standard because “[t]he placement of the rope lines shows [the decedent] and other employees were not tied off when entering and exiting the upper and lower roof.”  (Sec’y Br. 16). The Secretary claims that the rope lines connected to the anchors that workers were supposed to reach from the ladder to connect to their PFAS before leaving the ladder to get onto the roof were too far away and therefore Respondent’s workers must have been climbing onto the roofs from the ladder without being protected by a PFAS.  (Sec’y Br. 16-23). Respondent claims that the record establishes no such thing – all witnesses testified that the rope lines were reachable from the ladder, the pictures taken by CSHO Ajayi do not reflect an accurate view of the worksite during the installation, and CSHO Ajayi took no measurements to determine the distances that the Secretary sought to establish.  The undersigned agrees with Respondent.

The Lower Roof

The Upper Roof: Was the standard violated when one employee entered the rooftop from the ladder?

The Secretary claims that the rope lines on October 4, 2022, were too far away from Trinity’s workers for them to connect without leaving the ladder and therefore they must have been accessing the upper roof and lower roof without being connected and therefore unprotected from a fall hazard. (Sec’y Br. 18-20, 22). The Secretary bases her argument on an alleged rule that Trinity follows – that a connector to a rope line must be 12 inches or less away from a ladder. (Sec’y Br. 6). The Secretary claims:

A rope line located more than one foot away from an access ladder is too far to be reached from the ladder, thus exposing an employee to a fall hazard to reach the rope. Tr. 54:21-24, 55:18-22 (Camacho); Tr. 280:18-281:2 (Juarez) (a rope line located more than six inches away from a ladder is too far to be reached); see also Tr. 280:7-17 (Juarez) (one foot away would not comply with Trinity policy because it could not be reached safely at that distance); see also Tr. 522:15-19, 520:22-25 (Rucki) (a rope line must be “within hand’s reach of the access ladder,” which is “right here at your hands to where you’re not extending your arm to get it” and “right in front of you.”)

(Sec’y Br. 6-7).

Q And if any installer were on either of the two ladders, if the lines were in reach, would that have satisfied Trinity's policy?

A Yes.

Q And would that have satisfied OSHA's requirements?

A Yes.

(Tr. 749-750). The questioning itself – through two levels of translation and via leading questions – of the crew leads during the hearing led to attempted impeachment by deposition for each witness who ultimately maintained that rope lines must be “reachable” by the worker from the ladder. See, e.g., Tr. 54 – 56 (Camacho), 279-281 (Juarez). For these reasons, on balance, the testimony regarding whether violating the alleged “12 inches” rule is potentially unsafe is assigned lesser weight.

Second, the consistent thread within the testimony is that each witness stated that the rope lines must be “reachable” by the worker from the ladder to comply with Trinity’s safety policy. (Tr. 56, 271, 749-750). The Secretary does not address the multiple instances in the record that establish that the South Orange workers could in fact reach the rope lines during the installation process from the ladder. Camacho, Juarez, and Rucki all testified that the rope line connectors on the South Orange worksite as depicted in the post-accident photographs in the record were “reachable” to Trinity workers such that they could hook their harnesses to the rope lines before leaving the ladder on October 4, 2022. (Tr. 205 (upper roof), 213 (lower roof), 358-59 (lower roof), 361-62 (upper roof), 671 (upper roof), 676-77 (upper roof), 682-683 (lower roof)). This testimony rebuts the claim in the alleged violation description within the Citation stating that Trinity “did not utilize any means of fall protection during the process of entry upon and exit from the roof.”  (First Amended Complaint ¶ V). For these reasons, this testimony regarding whether the rope lines were “reachable” from the ladder by Trinity workers is assigned greater weight.

The preponderance of credible and persuasive evidence establishes that an anchored rope line was reachable by a Trinity worker from the ladder before he began entering the roof. Therefore, the Secretary’s claim – that the rope lines on October 4, 2022, were too far away from Trinity’s workers for them to connect without leaving the ladder and therefore they must have been accessing the upper roof without being connected and therefore unprotected from a fall hazard – fails. The Secretary did not carry her burden to establish non-compliance with the cited standard when one employee entered the rooftop from the ladder or exited the rooftop to the ladder.

The Upper Roof: Was the standard violated when the subsequent employee entered the rooftop from the ladder?

even if the rope line to the left of the solar panels was accessible from the ladder, the evidence still establishes that at least one employee working on the upper roof – the employee using the rope line to the right of the solar panels – entered and exited the roof without being tied off.

(Sec’y Br. 21) (emphasis added).

But the Secretary fails to address the possibility that one worker ascends onto the roof using one anchored rope line and then switches over to another anchored rope line on the roof, leaving the initial anchored rope line available for the next worker. Juarez testified to the following:

Q: And you’d agree that the rope line that’s connected to Y-3 is way too far to be safely reached from the ladder?

A: (Through Interpreter) Yes, because, when they’re like this, the last one who’s there, he’s going to have to change to – the change is up there so he can come back down.  They change their rope.

(Tr. 295).  Rucki explained:

If they’re changing, they’re required to hook. So, for example, like I was explaining to the Judge, they have their work-positioning device on. That device stays on while they take the secondary rope, which is the fall arrest, hook to the dorsal D ring, adjust the slack, and then they disconnect the other rope and put it off to the side, the other rope, which is the work-positioning device. But they're not allowed to be up there disconnected. They have to connect to the other one before disconnecting the positioning device.

The Secretary has failed to establish non-compliance with the cited standard. This citation item is vacated. As the Secretary has failed to meet her burden of proof regarding noncompliance with the standard, the remaining elements of the Secretary’s burden of proof – exposure, knowledge, classification, and penalty – and Respondent’s affirmative defense of unpreventable employee misconduct are not addressed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

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

SO ORDERED.

                                                                /s/ Carol A. Baumerich

                                                                Carol A. Baumerich

                                                                Judge, OSHRC

DATE: December 26, 2024

        Washington, D.C.       

1 The repeat characterization of the Citation is based on an August 8, 2022 final order and a September 6, 2019 final order for violations of 29 C.F.R. § 1926.501(b)(13) in New York (2022) and Massachusetts (2019). (Ex. C-13).

2 The undersigned granted the Secretary’s opposed Motion to Amend Complaint and Citation on April 19, 2024. See Order Granting The Secretary’s Motion To Amend Complaint And Citation (Apr. 19, 2024) (order with summary analysis); see also Order Granting The Secretary’s Motion To Amend Complaint And Citation, With Analysis (Apr. 24, 2024) (order with in depth analysis).

3 The parties stipulated to facts and principles of law as set forth in J-1. These will be referenced through this Decision as J-1 ¶# for the stipulation.

4 At Trinity, a crew lead is the same thing as a foreman. (Tr. 435). The crew lead is in charge of the crew, runs the job from start to finish, gives everybody their work orders, supervises the other crew members, makes sure the crew members are following safety rules, stops work if safety rules are not being followed, and reports to management if someone is refusing to follow orders.  (Tr. 435-436).

5 Angel Camacho has worked for Trinity for approximately nine or ten years. (Tr. 167, 235). During that time, Camacho was promoted from helper to installer to crew lead. (Tr. 167, 235-237). As he moved up in the ranks, Camacho attended multiple safety classes, including fall protection, and testified that he had been retrained in safety “all the time,” and that the training and training manuals are provided in Spanish to those who only speak Spanish. (Tr. 169-172).

6 Jose Juarez began working for Trinity in 2009. (Tr. 328). During his time at Trinity, he was promoted from helper to installer to crew leader. (Tr. 328). As of the time of the hearing, Juarez had been a crew lead for six years. (Tr. 247). Juarez testified to the multiple training classes he took and that those classes were provided in Spanish. (Tr. 329-330, 333, 337, 340-341).

7 These terms seemed to be used interchangeably in this case. (Tr. 519, 584, 693-694, 771; Ex. R-3 at 18). Based on the evidence in the record, the undersigned finds that terms “lifeline, “rope-line” and “lanyard” all indicate the connecting length of rope between the harness and the anchor.

8 As relevant in this case, the term clip is the same thing as the term connector. (Tr. 773).

9 Two types of lanyards are relevant in this case. According to Safety Director Rucki, “You have the Y-lanyard (a work positioning device) and then you also have the shock absorbing lanyard which would be on the dorsal D-ring.”  (Tr. 693-694). The Y-lanyard is attached to the front of the body harness, at the waist, whereas the dorsal D-ring is attached to the back of the body harness. (Tr. 660-662; 772-75; Ex. R-22 at 1). On the South Orange job, it was necessary to use both the D-ring lanyard and the Y-lanyard. (Tr. 361; 661-62, 772-75).

10 Rucki testified that each worker had their own PFAS, which included their own personal rope line with which they were comfortable. (Tr. 582).

11 The “first man up technique” is a process used by Trinity to install the anchoring aspect for the PFASs of the workers on the project. (Tr. 343-344; Ex. R-22 at 1). “The first person that’s up is the one in charge of putting down all the anchors and connect all the lines so the other employees could go up.”  (Tr. 344, 467-468, 659). As the first man up, Camacho also hooked each worker’s personal lifeline to an anchor on the roof. (Tr. 582, 785-789). Safety Director Rucki’s testimony suggests that Camacho may not have been protected by a PFAS when he installed the first anchor on the roof, two days prior to the incident, and connected the lifelines on the subsequent mornings. “Unless they’re the first man up for the start of the job, Your Honor, they’re the first person to go up the roof, the roof is not equipped with anchors and lifelines there. So, the first person has to go up there and install those anchors.”   (Tr. 468, 659). However, Rucki also testified that Trinity employs a “Ridge Pro” device designed to protect the first-man up on a roof with a greater than 26.5 slope, or a “ball and line” approach to protect the first-man up. (Tr. 659-660; Ex. R-22 at 1). Camacho agreed that the upper roof was a “high-pitched” roof. (Tr. 79). The Secretary has not developed the record regarding Camacho’s accessing the roof in the morning to place the lifelines onto the anchor as the “first man up” on the morning of October 4, 2022. Rather, the Secretary has instead focused this case on Trinity’s other workers accessing the roof using the lifelines that had already been attached to the anchors. The undersigned also notes that Camacho installed these anchors two days prior to the incident and the Secretary has not alleged in any way whether Camacho’s installation of the anchors was a violation of OSHA’s standard.

12 A third anchor on the upper roof is noteworthy.  This anchor is located up near the ridge line of the upper roof near the chimney.  See Photographs marked R3 on Ex. C-1 at 21A (Camacho); marked Y3 on Ex. C-1 at 22A (Juarez) .  This anchor held a rope line that was located too far to be “reachable” from a worker on the ladder.  (Tr. 89, 295).  However, as noted later, Juarez and Rucki testified that the practice of changing/switching/trading rope lines while workers were on the rooftop was implemented by Trinity.  (Tr. 295, 784).

13 Safety Director Rucki was not present at the inspected worksite. At the hearing, Rucki reviewed the worksite photos taken by the CSHO. Based on his photo review, Rucki testified that two fall arresting device clips / connectors are shown to the left of the upper roof ladder (marked G1 and G3 on Ex. C-1 at 22B; Tr. 759-63, 772-78). Worksite Crew Leaders Camacho and Juarez identified one anchored lanyard clip / connector to the left of the upper roof ladder (marked C1 on Ex. C-1 at 21A, Tr. 102,113-15, 120-21 (Camacho), and marked X1 on Ex. C1 at 22A, Tr. 288, 295-98, 301, 361-62 (Juarez). Greater weight is given to the worksite crew leaders regarding the number of upper roof anchored lanyard clips / connectors to the left of the ladder.

14 Camacho testified that the decedent had worked for Trinity for six years. (Tr. 173). Camacho was asked, “When he was on your crew, would he be on your crew for every job that you were assigned to?” Camacho agreed. (Tr. 173). During those jobs, Camacho never saw the decedent without proper safety equipment and always saw him with his fall protection harness on. (Tr. 174).

15 CSHO Ajayi is a Safety Engineer and has worked for OSHA for six to seven years. (Tr. 796).

16 While relevant to the knowledge element of an alleged violation analysis, and the unpreventable employee misconduct defense to an established violation, this evidence does not help the Secretary establish whether the cited standard was applicable or violated in this case.

17 Austin Tyler has been with Trinity since April 2021. (Tr. 382). He is currently a senior installer but previously worked as a crew lead. (Tr. 380-381). During his time as a crew lead, members of Tyler’s crew at times worked without fall protection and were not “terminated,” although Tyler was disciplined by Trinity by removing his title as a result of those safety infractions. (Tr. 282, 390-391, 398, 401, 403, 412.)

18 Kenneth Rucki has been employed by Trinity for 30 years and has been the Director of Safety since May 2021. (Tr. 433). As the Safety Director, Rucki reports to Trinity’s vice president of operations and, “from time to time,” the company owners. (Tr. 434). Rucki’s staff consists of Trinity’s safety officers and safety administrators who cover all of Trinity’s operations across eight states. (Tr. 434).

19 29 C.F.R. § 1910.5(c)(1) provides: “If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.”  

20 Other pictures in the record depict the worksite before the accident occurred. These pictures were taken for the purpose of establishing progress of the project. (Exs. C-2, C-5; C-6; Tr. 127-128, 154-157, 626-627).

21 The Secretary’s Post-Hearing Brief contains many misconceptions of the matter at hand. See, e.g., Sec’y Br.  23, n.15.  For example, the Secretary first mistakenly states that the ladder was moved “immediately before the fall.”  This is a misunderstanding of the testimony. (Tr. 206-10, 352-55). Second, the Secretary relies on alleged facts outside the citation timeframe – it is irrelevant in this matter what Respondent’s workers did a week and half after the incident because the Citation alleges that the violation occurred only on the day of the incident, October 4, 2022. Finally, the Secretary claims that the alleged fact that the ladder was moved is inconsistent with Camacho’s and Juarez’s testimony that ladders are not typically moved during the project. (Tr. 45). The decedent’s fall, however, was not a typical event of a project, so the undersigned does not find that the fact the ladder was moved after the fall is inconsistent with such testimony.

22 Although Rucki was not on the worksite on October 4, 2022, his testimony is corroborative because he is familiar with Trinity’s fall protection safety program, and he reviewed the inspection photographs during his testimony.

23 Rucki explained that “arm’s reach” is:

if you’re standing on the ladder and you're reaching out to the left, lean over, extend your arm and reach. So, depending on the person's height, that reach could be anywhere from 36 inches to 30 inches. Depending on the size of the person, it could be 28 inches. So, it's within their arm's length to be able to reach it without stepping on the ladder. It's within arm’s reach. It could be either left or right.

(Tr. 520).

24 This end point of “the edge of the gutter” seems arbitrary since the Secretary compares it to testimony in the record referring to the relevant distance as between the anchored clip and the “ladder.”  (Sec’y Br. 17).

25 The Secretary points out that Rucki’s testimony stating that there were four available anchored rope lines on the upper roof is inconsistent with Camacho’s testimony stating that there were only three available anchored rope lines on the upper roof. (Sec’y Br. 18 n.7 comparing Tr. 673-674 with 109-113).

26 Camacho and Juarez testified that there was only one anchored rope line immediately to the left of the ladder to the upper roof, but Rucki testified that there were actually two anchored rope lines immediately to the left of the ladder, and the one extra anchored rope line was connected to an anchor on the rear of the house (not pictured).  (Tr. 759-63, 772-78; marked G1 and G3 on Ex. C-1 at 22B). Rucki, however, was not speaking from personal experience of having been on the South Orange worksite. See note 13 above.

27 Camacho testified:

Q And, Mr. Camacho, the rope lines have to -- excuse me. Both rope lines have to be able to reach the ladder because you don't want the workers having to switch lines every time one goes up and down?

A (Through Interpreter) Can you please repeat again?

MR. COHEN: Could the court reporter read that back, please?

(Whereupon, the question was read back.)

THE INTERPRETER: The court interpreter wants clarification.

THE WITNESS: (Through Interpreter) Yes.

(Tr. 59).

28 Juarez testified:

Q Under Trinity policy, if there are two employees working on the same side of the roof, each of the rope lines have to reach the ladder, is that correct?

A (Through Interpreter) Yes.

Q If one rope reached the ladder and the other did not, you'd have to have the workers changing ropes all the time to get onto the roof, is that correct?

A (Through Interpreter) Yes.

Q You’d have to constantly switch between the ropes when someone’s getting on the roof, is that correct?

A (Through Interpreter) Not constantly because sometimes there’s only two working in the roof.

Q So, if two employees are working on the same side of the roof and each of the rope lines don't reach the ladder, you’d have to switch between the rope lines when someone’s getting onto the roof, correct?

Q Yes.

A (Through Interpreter) And Trinity doesn’t do that, is that correct?

A (Through Interpreter) What, like interchangeable, change them?

Q I’ll move on[.]

(Tr. 281-82).

29 As noted earlier, four employees worked on the upper roof, two on the side of the upper roof that is depicted in the photographs marked by the witnesses (Ex. C-1 at 21A, 22A, and 22B), and two on the other side of the upper roof that is not depicted in any photograph marked by the witnesses.  While the record is somewhat developed with regard to the  two workers who worked on the side of the upper roof in the photographs marked by the witnesses, the record is underdeveloped with regard to the  two employees who worked on the upper roof that is not depicted in the photographs (i.e., on the opposite side of the roof over the ridge line).  It is unknown how, when and even whether those two workers accessed and traversed the upper roof on October 4, 2022.  In her Post-Hearing Brief, the Secretary does not even specifically allege that those two particular workers were unprotected, instead focusing on the two employees who worked on the pictured portion of the upper roof.  (Sec’y Br. 20-21).