Fall hazard citation against Montana builder affirmed

An administrative law judge of the Occupational Safety and Health Review Commission affirmed a citation against a Montana employer for failing to ensure the use of fall protection by its employees and assessed a $22,000 fine.

In April 2016, the U.S. Occupational Safety and Health Administration inspected the Billings, Montana, worksite after two compliance safety and health officers observed four employees engaged in residential roofing activity without the use of fall protection, according to review commission documents in Secretary of Labor v. Terrance McKitrrick, doing business as Great White Construction. A single-item citation alleging failure to use adequate fall protection was issued in September 2016, along with a proposed penalty of $27,436.

The company had been issued four previous citations for violating the same standard, one of which was dismissed while the other three were adjudicated and became final orders of the review commission prior to the April 2016 inspection.

The law judge affirmed the serious repeat citation after finding that the agency proved that the company violated the standard, that the citation was properly characterized as a repeat and serious violation, and that the company failed to meet its burden of proving the elements of its unpreventable employee misconduct affirmative defense. The employer had a work rule that clearly indicated employees were to use fall protection while working on any roof, which would have prevented injury if it was followed, but the law judge found that the rule had not been clearly communicated or adequately enforced.

However, the law judge lowered the proposed fine after finding the agency’s assessment of the roof pitch to be excessive and adjusting the probability of injury accordingly.

The law judge’s decision became a final order of the review commission on Thursday.

An attorney for the company could not be immediately reached for comment.