EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Kingston Constructors, Inc. - DAR


The Division issued Employer a citation alleging a serious violation of section 3648(o) [employee in aerial lift not secured by safety belt/lanyard]. At the time the violation was observed by the Division inspector, the general foreman, who was working across the street on the ground 100 feet away, within sight of the aerial device, failed to notice that the employee, working in an elevated bucket immediately above power lines, had not secured himself with a lanyard. The ALJ found that the Division established the violation and Employer could not avail itself of the independent employee action defense because Employer did not prove that it effectively enforced its safety program, the third element of the defense. Employer argued on reconsideration that a single mistake or act of inadvertence does not support a finding that it does not enforce its safety program. The Board disagrees and finds where a foreman is at the site, that foreman is responsible for enforcing Employer’s safety program, and in this instance, the foreman failed to enforce the safety program at a critical time for this violation. The Board affirms the Decision of the ALJ.

KINGSTON CONSTRUCTORS, INC.  95-R1D1-1098
September 15, 1999