EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of Airco Mechanical, Inc. - DAR

An employee fell from a 2nd story deck when the guard cable, which was re-fastened with only a single clip by another contractor who had taken the cable down, gave way. A general violation of section 1621(a) was upheld. The Division's failure to make a multi-employer worksite determination of culpability required by section 336.11 does not prevent the Board from finding a violation. A section 336.11 failure can be asserted as an affirmative defense. Employer must prove that all the criteria have been met and then the effect on the outcome will be decided by the Board on a case-by-case basis. Lack of Employer knowledge of a violation goes to the classification of the violation and doesn't bar the finding of a general violation.

AIRCO MECHANICAL, INC. 99-3140 DAR 4/25/02