United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 06-1542
THOMAS INDUSTRIAL COATINGS, INC.
Respondent.

ON BRIEFS:

Kristen M. Lindberg, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor; Deborah Greenfield, Acting Deputy Solicitor; U.S. Department of Labor, Washington, DC

For the Complainant

John F. Cowling, Esq. and Julie O’Keefe, Esq.; Armstrong Teasdale, L.L.P., St. Louis, MO

For the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

Thomas Industrial Coatings, Inc. (“TIC”) is an industrial painting company that contracted with the St. Louis Bridge Construction Company to sandblast and paint the Jefferson Barracks (“J.B.”) Bridge in St. Louis, Missouri. On February 17, 2006, while TIC was erecting a suspended scaffold beneath the bridge, a cable supporting the scaffold snapped, causing four employees to fall, one of whom died as a result. The Occupational Safety and Health Administration (“OSHA”) commenced an inspection of the worksite that day and, on August 9, 2006, issued TIC two citations—one serious and one willful—alleging violations of the Occupational Safety and Health Act of 1970 (“Act” or “OSH Act”), 29 U.S.C. §§ 651-678. Under the serious citation, the Secretary alleged two violations of construction fall protection standards and proposed a penalty of $4,200 for each citation item. Under the willful citation, the Secretary alleged one violation of a construction standard involving the availability of lifesaving skiffs, and proposed a penalty of $56,000 for this citation item. Following a hearing, Administrative Law Judge Ken S. Welsch issued a decision affirming one of the two alleged fall protection violations and assessing the proposed penalty of $4,200. The judge also affirmed the alleged lifesaving skiff violation, but he recharacterized it as serious and assessed a penalty of $7,000.

On review before the Commission are the merits of both alleged fall protection violations, as well as the merits and characterization of the alleged lifesaving skiff violation. For the reasons that follow, we vacate both of the citation items alleging the fall protection violations, affirm the citation item alleging the lifesaving skiff violation, characterize that violation as willful, and assess a penalty of $56,000.

BACKGROUND

On the morning of February 17, 2006, TIC employees were laying “spans” or “sheets” to construct a suspended scaffold, also known as a “Safe Span,” in preparation for sandblasting and painting the J.B. Bridge, which consists of two parallel bridges crossing the Mississippi River. The three employees at issue in the fall protection citation items worked on a nine-person crew that was erecting the Safe Span underneath the arched portion of the two bridges, which were connected by two permanent crosswalks, about 100 feet above the water. These three employees worked on the northernmost bridge along with another laborer and the crew foreman. The other four crew members, one of whom was a “foreman-in-training,” worked on the southernmost bridge.

Late that morning, the foreman-in-training contacted Don Thomas—TIC’s president and owner who served as project manager for the bridge project—to inform him that the scaffold at the J.B. Bridge had collapsed. He told Thomas that one employee had fallen into the river and three other employees were dangling from vertical lifelines. TIC responded immediately by setting up a rigging system in order to retrieve the three employees attached to vertical lifelines. With assistance from a group of firefighters who had responded to the accident, TIC rescued these three employees. The employee who had fallen into the river was not rescued and died as a result of the accident.

DISCUSSION

I. Serious Citation 1, Items 1 and 2 (Fall Protection)

Under the first citation item, the Secretary alleges that TIC violated 29 C.F.R. § 1926.451(g)(1)(i),^{^[1]} because “a fall protection system was not utilized by one [member of the work] crew erecting the temporary work platform,” resulting in this employee falling “approximately . . . one hundred feet down into the river.” Under the second citation item, the Secretary alleges that TIC violated 29 C.F.R. § 1926.502(d)(10)(i),^{^[2]} because “employees working from a suspended work platform did not have independent lifelines, with separate anchorage points capable of supporting at least 5,000 pounds . . . per employee attached for a complete personal fall arrest system.”

The judge found that the deceased employee had failed to use a personal fall arrest system but vacated the alleged violation of § 1926.451(g)(1)(i) (“fall arrest item”) on the grounds that TIC had neither actual nor constructive knowledge of that failure. However, he affirmed the alleged violation of § 1926.502(d)(10)(i) (“vertical lifeline item”), crediting the testimony of witnesses who testified that two TIC employees had shared a single vertical lifeline, and finding constructive knowledge based on the foreman-in-training’s ability to have observed the violative condition. The judge also rejected TIC’s affirmative defense of unpreventable employee misconduct with regard to this item, concluding that TIC had neither adequately monitored its employees’ compliance with fall protection rules nor “universally administered” discipline to those employees who violated such rules.

As the judge found, the record shows that TIC failed to comply with both of the cited fall protection standards.^{^[3]} On review, the parties dispute the judge’s knowledge findings with regard to these items: the Secretary challenges the judge’s conclusion that she failed to establish TIC’s knowledge of the violative condition alleged under the fall arrest item, and TIC challenges the judge’s finding that it had knowledge of the violative condition alleged under the vertical lifeline item. Based on our review of the record, we conclude that the Secretary has failed to establish TIC’s knowledge of the violative conditions alleged in both citation items.

Fall arrest item

To establish knowledge, the Secretary must prove “that the ‘employer knew or could have known with the exercise of reasonable diligence of the conditions constituting the violation.’ ” Contour Erection & Siding Sys., Inc., 22 BNA OSHC 1072, 1073, 2004-09 CCH OSHD ¶ 32,943, p. 53,787 (No. 06-0792, 2007) (citation omitted). “In assessing reasonable diligence, the Commission has considered ‘several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.’ ” Gen. Motors Corp., 22 BNA OSHC 1019, 1030, 2004-09 CCH OSHD ¶ 32,928, pp. 53,611-12 (No. 91-2834E, 2007) (consolidated) (citation omitted). Here, the Secretary claims that she established TIC’s knowledge of the alleged fall arrest violation by showing that (1) the foreman-in-training observed the violative condition just prior to the accident, and (2) the crew foreman could have observed this condition “had he been paying attention.” Contour Erection & Siding Sys., Inc., 22 BNA OSHC at 1073, 2004-09 CCH OSHD at p. 53,787 (noting that “actual or constructive knowledge of a supervisor or foreman” can generally be imputed to employer). We find that the record does not support these claims.

On the morning of the accident, the crew foreman observed the deceased employee handing sheets and clips to another crew member as he stood on the Safe Span. At the time, the deceased employee was wearing a harness with a lanyard and rope grab that was attached to a vertical lifeline, which was anchored overhead to a bridge beam. The foreman testified that he never saw the deceased employee without fall protection at any time that morning and, before their last communication, he observed that the deceased employee was tied off. The foreman then climbed up the ladder from the Safe Span to the bridge deck. At some point thereafter, the deceased employee looked up at the foreman from underneath the outside structural bridge beam—they were able to communicate with and observe one another through a two- to three-foot wide gap between the beam and parapet wall—and told him to raise the cable. The foreman testified that he could not see the deceased employee’s fall protection because the deceased employee merely stuck his head and maybe one shoulder under the beam during this communication. After receiving the deceased employee’s instruction, the foreman turned away from him and raised the cable. Seconds later the cable snapped, causing the platform occupied by the deceased employee and his three co-workers to fall.

Moments before the cable snapped, the foreman-in-training was working on the southernmost bridge, closely watching how the employees working with the crew foreman on the northernmost bridge were connecting two runways to a crosswalk. During his observation, the foreman-in-training saw that the deceased employee had walked underneath a beam to the other side of the northernmost bridge, but then lost sight of the deceased employee until he came back to the middle of the bridge. According to the foreman-in-training, he saw the deceased employee return to the middle of the bridge five or six seconds before the cable snapped and thought at the time that this was “a far distance for [the deceased employee] to go if he was properly tied off.” But the foreman-in-training consistently stated in his testimony that he was unable to observe what fall protection equipment the deceased employee was wearing and, thus, could not have known whether the deceased employee was in fact tied off.

Based on this testimony, we find that the deceased employee’s movements in the moments before the accident caused the foreman-in-training only to question whether the deceased employee was “properly tied off,” not determine that he was not tied off. We find, therefore, that the record does not show that the foreman-in-training had actual knowledge of the violative condition. Additionally, although the record supports the Secretary’s assertion that the crew foreman was working near the violative condition, we find that under the circumstances here, his proximity does not show that he had either actual or constructive knowledge of the deceased employee’s failure to use fall protection. The foreman’s view of the deceased employee at the time of the accident was restricted by the small gap through which the employee was visible, and the last time he saw the deceased employee’s lanyard—just before their last communication—it was attached to a vertical lifeline. The Secretary asserts that the foreman did not detect the violative condition because “he was too busy to adequately monitor employees and took no steps to actively discover infractions.” But for the reasons discussed below in the section addressing TIC’s safety program, we find the record does not show that the foreman’s duties hindered his ability to effectively monitor for safety violations, or that TIC’s implementation of its safety program was inadequate. See Gen. Motors Corp., 22 BNA OSHC at 1030, 2004-09 CCH OSHD at pp. 53,611-12 (discussing reasonable diligence).

Additionally, as the Secretary concedes in her review brief, “[i]t is unclear, from the testimony as a whole, just how long [the deceased employee] was working without his lifeline.” The accident occurred after the entire crew had returned from a work break, and there is no evidence in the record contradicting the foreman’s assertion that, earlier in the morning before the accident, he had observed that the deceased employee was tied off. Absent evidence showing how long the violative condition existed, we are unable to evaluate whether a reasonably diligent inspection by the foreman, the foreman-in-training, or any other TIC supervisor would have informed TIC of the deceased employee’s failure to tie off. See, e.g., Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2196-97, 2000 CCH OSHD ¶ 32,134, p. 48,422 (No. 90-2775, 2000) (concluding that “in the absence of any evidence indicating how long the violative conditions had been in existence, we are unable to evaluate whether [the employer] could have known of them even if it had been reasonably diligent in inspecting its equipment”), aff’d, 268 F.3d 1123 (D.C. Cir. 2001); Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940, 1999 CCH OSHD ¶ 31,932, p. 47,373 (No. 97-1676, 1999) (concluding that constructive knowledge was not shown where lack of evidence of violation’s duration precluded Commission from determining whether employer could have known of conditions with exercise of reasonable diligence). Accordingly, under the circumstances here, we find that the evidence showing what TIC’s supervisors saw, or could have seen with the exercise of due diligence, does not establish that TIC had knowledge of the alleged fall arrest violation.

Vertical lifeline item

TIC argues that the record fails to support a finding of knowledge of this alleged violation because there is no evidence that the foreman-in-training knew, or could have known, of the violative condition, given his distance from the two employees at issue and the uncertainty regarding the length of time that these employees allegedly shared a single vertical lifeline. For the following reasons, we agree that the record does not establish knowledge on the part of the foreman-in-training.

From his position on the southernmost bridge, approximately 50 to 70 feet away from the two employees on the northernmost bridge, the foreman-in-training observed that the two men were “as far as 30, 40, 50 feet away from each other and then next to each other” during the course of their work. He affirmed that there were no barricades to block his view of them and acknowledged that he was able to observe their backs “the whole time” they were working across from him.[4] While this evidence shows that the foreman-in-training could probably have seen the two employees clearly enough to determine that they were attached to the same vertical lifeline, there is no evidence in the record showing how long the two employees shared the lifeline before the accident occurred or that the foreman-in-training actually saw them during that time.

Only the firefighters testified to observing these employees attached to a single vertical lifeline, and their observations were made following the accident. No evidence shows that the two employees in question were attached to the same lifeline before the crew left the platform for its work break, and no evidence indicates that more than a short period of time passed between the resumption of work and the occurrence of the accident. Based on these facts, we are unable to evaluate whether a reasonably diligent inspection by the foreman-in-training, the foreman, or any other TIC supervisor would have informed TIC that the two employees shared a single vertical lifeline. See, e.g., Kaspar Wire Works, Inc., 18 BNA OSHC at 2196-97, 2000 CCH OSHD at p. 48,422; Ragnar Benson, Inc., 18 BNA OSHC at 1940, 1999 CCH OSHD at p. 47,373. Accordingly, as with the fall arrest item, we find that the evidence showing what TIC’s supervisors saw, or could have seen with the exercise of due diligence, does not establish that TIC had knowledge of the alleged vertical lifeline violation.

TIC’s safety program

Finally, the Secretary claims that TIC had constructive knowledge of the violative conditions alleged in the fall arrest and vertical lifeline items, because the work TIC performed was inherently dangerous, its employees’ failure to use fall protection was foreseeable, and both the monitoring and enforcement of its safety program was inadequate. See Omaha Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 785 (8th Cir. 2002) (concluding employer had knowledge of lockout/tagout violation where employer knew that machinery was inherently dangerous and that one of three employees was inexperienced and untrained, and employer reasonably could have known that employees were entering machinery to clear jams). TIC’s superintendent of the J.B. Bridge project affirmed that it was “completely foreseeable” that employees would, at times, not tie off, and the dangers associated with the employees’ work underneath the bridge are self-evident. However, we find that the Secretary has not established that TIC’s monitoring and enforcement of its safety program was inadequate and, therefore, has not shown that TIC had constructive knowledge of the violative conditions. Gen. Motors Corp., 22 BNA OSHC at 1030, 2004-09 CCH OSHD at pp. 53,611-12 (discussing reasonable diligence).

The record shows that the fall protection requirements at issue here were included as rules in TIC’s safety program and that these rules were repeatedly communicated to TIC employees, including the employees who were the subject of the fall protection citation items. See id. (listing adequacy of work rules and training programs as factors relevant to assessing employer’s reasonable diligence). Specifically, both Thomas and TIC’s safety and environmental manager (“safety manager”) testified that TIC held a company-wide all-day safety meeting in September 2005, during which specific changes to TIC’s safety program were communicated to employees. A “large portion” of this meeting was spent on fall protection, and TIC’s 100-percent tie-off and vertical lifeline rules were specifically emphasized to employees. The attendance sheet for the meeting includes the signatures and printed names for the three employees at issue in the two fall protection citation items, as well as the crew foreman and superintendent.

Further, all three employees received fall protection training from TIC during either an employee orientation or a comparable refresher course, at which time the safety manager provided a copy of TIC’s safety handbook to each employee, and used “hands-on” training and discussion to teach employees the fall protection requirements set forth in the handbook, including the 100-percent tie-off and vertical lifeline rules. Information concerning fall protection was also provided during weekly toolbox meetings: the painting crew on the J.B. Bridge project received fall protection instruction from the superintendent and foreman during such meetings at the worksite, including on February 6 and 13, 2006, just days before the February 17, 2006 accident. And on other TIC projects, the deceased employee and crew foreman participated in toolbox meetings on five different occasions between December 2004 and December 2005, during which fall protection was specifically designated as a “Tool Box Talk Topic.”

Contrary to the Secretary’s claim, the record does not show that TIC’s efforts to monitor its employees for compliance with these fall protection rules were inadequate. See id. (listing adequacy of supervision as one of several factors relevant to assessing employer’s reasonable diligence); Stahl Roofing, Inc., 19 BNA OSHC 2179, 2182, 2002-04 CCH OSHD ¶ 32,646, p. 51,219 (No. 00-1268, 2003) (consolidated) (rejecting Secretary’s argument that employer should have provided more supervision where “she failed to specify how much more would be necessary to assure compliance, what additional measures [employer] should have taken, or how [employer’s] supervision was insufficient”). Rather, the evidence shows that a number of safety checks were, as a matter of course, performed by TIC: (1) an insurance company safety consultant conducted nine safety audits at TIC worksites in the St. Louis area over a two-year period, though he had not inspected the J.B. Bridge worksite; and (2) TIC’s safety manager or other TIC personnel performed unannounced inspections at various TIC worksites. And, with respect to the J.B. Bridge project, the evidence shows that the safety manager had not visited the worksite before the accident occurred, but owner Thomas did so periodically and inquired about “everything,” including safety. Moreover, TIC’s superintendent, who worked only at the J.B. Bridge during the project, “walked the job” on a weekly basis and completed a form titled, “Supervisor’s Weekly Site Safety Checklist and Record Keeping Requirements.” The checklist contained a list of recordkeeping and safety issues—including ones pertaining to fall protection—that the superintendent was required to evaluate.

Further, the crew foreman, who worked alongside half of the crew, provided direct, day-to-day supervision of the employees at issue. Contrary to the judge, we find that the record does not show his duties as a working foreman and supervisor of eight fellow crew members hindered his ability to effectively monitor for safety violations. In addition to supervising the crew, he was responsible for ensuring that employees had their equipment and for maintaining his field foreman’s notebook. But the foreman’s group, which included the three employees at issue in the fall protection citation items, consisted entirely of experienced laborers who had never previously been disciplined for a violation of any fall protection rule. And the other group received instruction from the foreman-in-training, as he worked directly with them. Taken together, this evidence undermines both the Secretary’s position and the judge’s finding that TIC’s monitoring of its employees’ compliance with fall protection requirements was inadequate. See Stahl Roofing, Inc., 19 BNA OSHC at 2182, 2002-04 CCH OSHD at p. 51,219 (finding supervision adequate where supervisors visited each work site at least once a day, safety manager visited ten to fifteen sites a week, and company president made unannounced visits to worksites); N.Y. State Elec. & Gas Corp., 19 BNA OSHC 1227, 1228-31, 2000 CCH OSHD ¶ 32,217, pp. 48,871-74 (No. 91-2897, 2000) (finding supervision adequate where, in addition to supervisory surprise audits, foreman inspected each site for safety compliance twice a day and spent thirty to forty minutes at each visit).

Additionally, we conclude that any shortcomings in TIC’s enforcement of its disciplinary procedures are insufficient to establish that TIC had constructive knowledge of the violative conditions alleged here. See Lake Erie Constr. Co., 21 BNA OSHC 1285, 1288-89, 2004-09 CCH OSHD ¶ 32,857, p. 52,992 (No. 02-0520, 2005) (finding constructive knowledge based in part on employer’s failure to utilize disciplinary program for inadequate fall protection). The judge concluded that “discipline was not universally administered” by TIC based solely on its failure to discipline any of the employees at issue under the fall protection citation items for the violations alleged therein. The Secretary also points out in her review brief that the foreman was likewise not disciplined for the “multiple violations of the OSH Act that occurred on February 17, 2006.”

We find that these circumstances alone do not establish that TIC’s disciplinary program was insufficient. The record shows that TIC had instituted a new disciplinary procedure, effective in August 2005, which was discussed at the company-wide safety meeting held the following month. Under this procedure, Thomas or the superintendent could send “the entire crew,” including the foreman, “home without pay for a week if one member of the crew [was] caught not wearing [fall protection equipment] or abiding by fall protection requirements.” The company’s disciplinary and accident reports show that it had disciplined laborers and supervisors, sometimes using this procedure, for violations of its safety program, including those requirements relating to fall protection, and that much of this discipline was meted out in 2005, months before the accident at issue here occurred. But these reports show that neither the deceased employee nor the two employees involved in the alleged vertical lifeline violation had ever been written up for violating a fall protection rule.[5] Moreover, other than the alleged violations before us, neither the judge nor the Secretary points to another instance where a TIC supervisor failed to discipline an employee for violating a rule in TIC’s safety program. Given the record as a whole, we find that TIC’s decision to forgo discipline for these particular employees in this one instance does not support a finding that it failed to exercise reasonable diligence and had constructive knowledge of the conditions alleged in the fall protection items. See Precast Serv., Inc., 17 BNA OSHC 1454, 1456, 1995-97 CCH OSHD ¶ 30,910, p. 43,036 (No. 93-2971, 1995) (evaluating employer’s disciplinary measures in context of unpreventable employee misconduct defense, and noting that “Commission precedent does not rule out consideration of post-inspection discipline, provided that it is viewed in conjunction with pre-inspection discipline”), aff’d per curiam, 106 F.3d 401 (6th Cir. 1997) (unpublished table decision).

Accordingly, we conclude that the Secretary has not established that TIC had constructive knowledge of the conditions alleged in the fall protection items. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p. 48,003 (No. 96-1719, 2000) (noting that Secretary bears burden of proof to establish all elements of alleged violation). We therefore vacate Citation 1, Items 1 and 2 for lack of knowledge.

II. Willful Citation 2, Item 1 (Lifesaving Skiff)

Under this item, the Secretary alleges a willful violation of 29 C.F.R. § 1926.106(d)^{^[6]} because “a lifesaving skiff or the equivalent was not made readily available for [TIC] employees working from a temporary, suspended, working platform beneath the [J.B.] Bridge.” Thomas claims that weeks before TIC’s work on the J.B. Bridge commenced, he met with personnel from four businesses operating along the Mississippi River to inform them of TIC’s work project and to discuss the availability of rescue boats in the event of an emergency. TIC argued to the judge that the arrangements Thomas made with these businesses complied with the requirements of the cited standard.

The judge rejected TIC’s argument and affirmed the alleged violation, but he recharacterized it as serious based on TIC’s contention that the company had reasonably relied on these arrangements in lieu of placing its own skiff directly underneath the J.B. Bridge. On review, TIC challenges the judge’s determination that it was not in compliance with the requirements of § 1926.106(d), and the Secretary challenges the judge’s recharacterization of the alleged violation as serious. Based on our review of the record, we conclude the Secretary has established that TIC willfully violated § 1926.106(d).

Merits

The judge concluded that TIC’s arrangements with the businesses along the river were insufficient because the businesses made no guarantees that a rescue boat would be available and accessible at all times, and TIC personnel made no attempt to immediately contact these businesses when the need for rescue services arose on the day the scaffold collapsed. We agree with the judge.

TIC maintains that § 1926.106(d), which requires that a lifesaving skiff “be immediately available at locations where employees are working over . . . water,” is a performance-oriented standard and that, by making arrangements with these businesses, TIC “acted reasonably in the unique circumstances of this project.” But the record shows that TIC’s efforts in this regard clearly fell short of compliance with the cited standard. Although Thomas claims to have contacted personnel at all four businesses about one month before the accident to discuss the availability of a rescue boat in the event of an emergency at the bridge, personnel from only two of those businesses confirmed that they actually met with Thomas, and they testified that no guarantees were made that a rescue boat would be available to TIC at all times. The owner of Limited Leasing Company (“LLC”) told Thomas that LLC would help out “in any way possible” if needed, but the owner also admitted that the pilot of his boat would not stay on the boat “vigilant and ready to respond.” As he put it, “there were never any guarantees made that [LLC] would be there . . . every day just for [TIC].” And the president of Bussen Quarries (“BQ”) admitted to speaking with Thomas, but only about permitting TIC to locate a rescue boat at another operator’s site or at BQ’s sand dock. BQ had no boats of its own to provide TIC with rescue services. Even if we assume that Thomas did, in fact, speak with personnel from the other two businesses he identified at the hearing, J.B. Marine and Louisiana Dock Company (“LDC”), Thomas himself admitted that neither one of these businesses had a boat or rescue service “manned . . . each and every day,” or available to TIC “on standby,” in the event of an emergency.

Additionally, on the day of the February 17, 2006 accident, TIC’s alleged arrangements with these businesses were not implemented. Thomas testified that when he met with the personnel from each business, he received their permission to place their names and telephone numbers on an “emergency action list.” The day after his meetings, Thomas informed TIC’s safety manager and superintendent that the emergency action list would serve as TIC’s “marine safety process.” The record shows that all three men programmed the telephone numbers for personnel from at least three of the four businesses into their cell phones. The safety manager then created the emergency action list using the telephone numbers that Thomas provided, and the superintendent posted the list in the worksite office trailer, which was accessible from the bridge deck in about two minutes by car. In the event of an emergency, it was the superintendent’s responsibility to contact any or all of the businesses on the list. Nonetheless, immediately after the superintendent was notified by the foreman of the accident, he called 911 and TIC’s safety manager, but never attempted to call any of the businesses on TIC’s emergency action list, even though he was aware of his responsibility to do so and had their telephone numbers programmed into his cell phone.^{^[7]}

With no guarantee that a rescue boat, a skiff, or any other boat would always be available and could respond immediately in the event of an emergency, and the superintendent’s failure even to attempt to implement the deficient arrangements allegedly in place or contact other boat operators using TIC’s marine radio,[8] we find that TIC failed to comply with the cited standard. RGM Constr. Co., 17 BNA OSHC 1229, 1236, 1993-95 CCH OSHD ¶ 30,754, p. 42,731 (No. 91-2107, 1995) (finding violation of § 1926.106(d) where employer’s skiffs were not located at worksite and, thus, not “immediately available”). We also find that TIC had actual knowledge of the violative condition here, because Thomas knew none of the businesses he claims to have contacted had guaranteed an immediate response in the event of an emergency, and the superintendent knew he failed to satisfy his responsibility to contact the businesses on the emergency action list following the deceased employee’s fall into the river. Contour Erection & Siding Sys., Inc., 22 BNA OSHC at 1073, 2004-09 CCH OSHD at p. 53,787 (noting that “actual or constructive knowledge of a supervisor or foreman” can generally be imputed to employer); Conie Constr., Inc., 16 BNA OSHC 1870, 1872, 1993-95 CCH OSHD ¶ 30,474, p. 42,090 (No. 92-0264, 1994) (imputing owner’s knowledge to corporation), aff’d, 73 F.3d 382 (D.C. Cir. 1995). We thus conclude that the Secretary has established a violation of § 1926.106(d).

Willful characterization

The judge affirmed the violation as serious rather than willful based on TIC’s claim that it reasonably relied on businesses along the river to provide emergency services because it had been advised that placing a skiff directly underneath the J.B. Bridge would be unsafe. The judge cited the testimony of several witnesses who stated that under certain conditions, such as when the river is at or near flood stage, a skiff located underneath the bridge could have presented a danger to those operating it. In light of these reservations about operating the skiff, he found that the Secretary failed to show TIC’s “state of mind at the time manifested plain indifference to employee safety.” The judge noted that the Secretary “[came] closer to showing [that owner] Thomas knowingly disregarded the requirements of the Act,” but concluded that “[Thomas] regarded the requirements of the Act to the extent he met with the various business owners to discuss rescue services and listed the telephone numbers for supervisors.” We disagree with the judge’s determination.

“The hallmark of a willful violation is the employer’s state of mind at the time of the violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . . plain indifference to employee safety.’ ” Kaspar Wire Works, Inc., 18 BNA OSHC at 2181, 2000 CCH OSHD at p. 48,406 (citation omitted).

[I]t is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation . . . . A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference . . . .

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, pp. 41,256-57 (No. 89-433, 1993). This state of mind is evident where “ ‘the employer was actually aware, at the time of the violative act, that the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care.’ ” AJP Constr. Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004) (emphasis and citation omitted). Based on our review of the record, we conclude that TIC had a heightened awareness that the conditions at the worksite were not in compliance with the specific requirements of § 1926.106(d), but made a conscious decision to disregard those requirements. Hern Iron Works, Inc., 16 BNA OSHC at 1214, 1993-95 CCH OSHD at p. 41,257.

The record shows that Thomas and several of TIC’s supervisors had a heightened awareness of § 1926.106(d) and its specific requirements prior to the February 17, 2006 accident. See Branham Sign Co., 18 BNA OSHC 2132, 2134, 2000 CCH OSHD ¶ 32,106, p. 48,263 (No. 98-752, 2000) (“The state of mind of a supervisory employee, his or her knowledge and conduct, may be imputed to the employer for purposes of finding that the violation was willful.”). First, Thomas testified that, since 1994, he has known that a rescue boat must be available when working over water. He claimed that on previous projects, TIC had either used its own boat and personnel for this purpose, paid others to occupy rescue boats for TIC, or arranged for nearby businesses to provide rescue services free of charge. Thomas also testified that he was “shocked” by a suggestion from BQ’s president that TIC not use its small boat on the river because doing so may be dangerous, and told BQ’s president “this is what’s required.”

Second, TIC’s safety manager told the OSHA Compliance Officer that he discussed the lifesaving skiff requirement with TIC employees during safety meetings. Also, the safety manager testified that two years before the accident, he received an email from an insurance company safety consultant that included an OSHA interpretative bulletin setting forth the requirements of § 1926.106, and that he had read the email and trusted the consultant, with whom he had a longstanding relationship, to give him correct information. The safety manager further testified that during a prior project, TIC had stationed a skiff, manned at least part of the time, in the St. Louis Harbor, and that TIC had located skiffs at other projects as well.

Third, TIC’s superintendent admitted that on a prior project, he had “read the OSHA rules and [he had] read in there that you may need a skiff on the job.” He also admitted that the safety manager had told him “that.” Indeed, the foreman of the crew involved in the February 17, 2006 accident confirmed that the superintendent knew of the skiff requirement. The foreman testified that during another bridge painting project in mid-2005 on the Missouri River, this same superintendent assigned him the task of manning a rescue boat over a two- to three-month period. Finally, this foreman testified that he was aware of the lifesaving skiff requirement based on classes and safety meetings he attended prior to February 17, 2006, and he affirmed that TIC has its own rule that “says a lifesaving skiff will be immediately available.”

Despite this heightened awareness of § 1926.106(d) and its specific requirements, TIC made a conscious decision not to comply with the cited standard on the J.B. Bridge project. As noted above, TIC knew through Thomas that there was no guarantee that any of the nearby businesses Thomas contacted would be able to respond immediately with a rescue boat in the event of an emergency. Additionally, TIC’s superintendent did not contact any of these businesses on the day of the accident even though he knew it was his responsibility to do so and he had ready access to TIC’s emergency action call numbers on his cell phone. We find, therefore, that TIC had a heightened awareness of the illegality of its failure to comply with the cited standard, and acted with conscious disregard of the standard’s requirements and employee safety. See CBI Servs. Inc., 19 BNA OSHC 1591, 1605-07, 2001 CCH OSHD ¶ 32,473, pp. 50,237-39 (No. 95-0489, 2001) (concluding employer acted with conscious disregard where supervisor knew of cited standard and had heightened awareness of illegality of cited conditions), aff'd per curiam, 53 F. App’x 122 (D.C. Cir. 2002) (unpublished); L.E. Myers Co., 16 BNA OSHC 1037, 1047-48, 1993-95 CCH OSHD ¶ 30,016, p. 41,134 (No. 90-945, 1993) (finding conscious disregard for employee safety where employer insulated lines only when “no question” existed that failure to insulate would present “a grave risk,” but otherwise “gambled” that proper clearance could be maintained without insulating lines). Indeed, the fact that TIC had recently used its boat as a rescue skiff on another bridge project, and continuously manned the boat over a period of months, shows that TIC understood what was required to comply with § 1926.106(d) but deliberately chose not to take the same steps in this case.

Under Commission precedent, “willfulness will be obviated by a good faith, albeit mistaken, belief that particular conduct is permissible.” Froedtert Mem’l Lutheran Hosp., Inc., 20 BNA OSHC 1500, 1510, 2004-09 CCH OSHD ¶ 32,730, p. 51,911 (No. 97-1839, 2004). Here, TIC argues that any noncompliance with the skiff requirement cannot be willful because the company had a good faith belief its arrangements for emergency assistance constituted compliance with the requirements of § 1926.106(d). We find the record does not support TIC’s position. As the judge found, there is some evidence supporting TIC’s claim that it could be dangerous for a small boat to be in the river during flood or near-flood conditions. But the record shows that the river was in neither of these conditions on the day of the accident and, according to the Missouri water patrolman who investigated the accident, nothing about the river’s conditions that day would have precluded TIC from placing a rescue boat underneath the bridge. In fact, TIC’s foreman testified that the company should have had a rescue boat underneath the bridge on the day of the accident, and it should have been the boat that he had manned for two to three months while TIC worked over the Missouri River.

Moreover, TIC admits that one of its motives for disregarding the cited standard’s requirements on the J.B. Bridge project was the cost of maintaining a manned skiff, and the record also shows that its employees disliked the task. Specifically, Thomas testified that in bidding for this project, TIC included the placement of a manned boat underneath the bridge in its cost estimate. Yet, according to TIC’s safety manager, one reason TIC decided not to place a boat there was its concern that any such boat could be stolen or damaged, and TIC did not want to pay someone to “drive a boat down to the J.B. Bridge and back every day.” See E. Smalis Painting Co., 22 BNA OSHC 1553, 1577, 2009 CCH OSHD ¶ 33,030, p. 54,366 (No. 94-1979, 2009) (finding that employer would not have complied with standard “even had it known of its obligations” because of owner’s “economic concerns” and “emphasis on productivity over employee safety”). The safety manager further testified that employees viewed manning the skiff as “boring,” and that TIC was having problems “fulfilling the assignment of” this task. In any event, regardless of TIC’s reasons for not using its own boat as a lifesaving skiff, Thomas’s purported arrangements with the various businesses along the river cannot be considered a good faith attempt at compliance because they were voluntary, subject to availability, and provided no guarantee of reliable rescue services. And based on TIC’s familiarity and prior compliance with the requirements of the cited standard, TIC could not have believed that its arrangements here were adequate. See Conie Constr., Inc., 16 BNA OSHC at 1872-73, 1993-95 CCH OSHD at p. 42,090 (noting that where “approach was different than that plainly required by the standard,” employer could not have acted in good faith); see also Caterpillar, Inc., 17 BNA OSHC 1731, 1733, 1995-97 CCH OSHD ¶ 31,134, pp. 43,483-84 (No. 93-373, 1996) (holding willfulness was not obviated by patently inadequate abatement measures), aff’d, 122 F.3d 437 (7th Cir. 1997). We therefore reject TIC’s assertion that it attempted in good faith to comply with the requirements of § 1926.106(d) and affirm the violation alleged in Citation 2, Item 1 as willful.

Penalty

Under section 17(j) of the OSH Act, 29 U.S.C. § 666(j), the Commission must give “due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.” The principal factor in a penalty determination is gravity, which “is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201, 2004-09 CCH OSHD ¶ 32,880, p. 53,231 (No. 00-1052, 2005).

The judge assessed the maximum penalty allowable under the OSH Act for a serious violation, finding that the gravity of the violation was “extremely high” because TIC’s noncompliance with the standard may have contributed to its employee’s death. The Secretary argues on review that we should assess her proposed penalty of $56,000. According to the Secretary, her proposed assessment “was based on the high probability and severity of harm that could result from the violation.” The Secretary’s proposal also included a twenty-percent reduction for business size. TIC makes no argument concerning penalty.

We agree that the gravity of the violation here is high because, regardless whether TIC’s employee could have been rescued in this case, its failure to make a lifesaving skiff immediately available risked the lives of all TIC employees who worked over the river. We have factored into our penalty assessment the size of TIC’s business, accord no good-faith credit based on our finding that TIC did not make a good faith effort to comply with the cited standard, and accord no history-based penalty reduction because TIC has a history of prior violations. Based on our review of the record and the statutory penalty factors, we assess a penalty of $56,000.

ORDER

We vacate Citation 1, Items 1 and 2. Also, we affirm Citation 2, Item 1 as willful, and assess a penalty of $56,000.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

/s/

Cynthia L. Attwood

Dated: February 28, 2012 Commissioner

[1] Section 1926.451(g)(1)(i), as relevant here, states as follows:

(g) Fall protection. (1) Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level. . . . (i) Each employee on a boatswains’ chair, catenary scaffold, float scaffold, needle beam scaffold, or ladder jack scaffold shall be protected by a personal fall arrest system[.]

[2] With one exception not applicable here, § 1926.502(d)(10)(i) requires that “when vertical lifelines are used, each employee shall be attached to a separate lifeline.”

[3] TIC does not dispute that the deceased employee was on a scaffold “more than 10 feet . . . above a lower level” without being “protected by a personal fall arrest system.” 29 C.F.R. § 1926.451(g)(1)(i). However, TIC challenges the judge’s factual finding that two TIC employees shared a vertical lifeline. 29 C.F.R. § 1926.502(d)(10)(i). After making extensive credibility determinations, the judge relied on the testimony of several firefighters who witnessed the violative condition and discounted the conflicting testimony of TIC’s employee witnesses. We accept the judge’s credibility determinations, particularly those pertaining to the demeanor of the witnesses, and therefore find that two TIC employees did, in fact, share a single vertical lifeline. Valdak Corp., 17 BNA OSHC 1135, 1137 n.3, 1993-95 CCH OSHD ¶ 30,759, p. 42,741 n.3 (No. 93-0239, 1995) (articulating Commission’s reluctance to reject judge’s credibility findings based on first hand observation of witnesses’ demeanor), aff'd, 73 F.3d 1466 (8th Cir. 1996).

[4] In contrast with the deceased employee, who worked “facing” the foreman-in-training on the upriver side of the northernmost bridge, the two employees at issue in the vertical lifeline item worked closer to the foreman-in-training with their backs to him on the downriver side of the northernmost bridge.

[5] We note that the only disciplinary action documented for these employees involved the crew foreman and the deceased employee, who were both suspended for a week without pay while working on a different project in August 2005. Their suspensions, however, were instituted under TIC’s new disciplinary procedure, and the deceased employee was punished based solely on the failure of another crew member to wear a reflective safety vest.

[6] Section 1926.106(d) states that “[a]t least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.”

[7] After being informed of the accident, TIC’s safety manager, who was attending a training class in St. Louis at the time, left to retrieve a boat that TIC had previously docked with LDC. Upon reaching the dock, the safety manager was told by a boat operator there that LDC’s own boat was more accessible and could reach the bridge in less time than TIC’s boat. The safety manager and the boat operator therefore went downriver in LDC’s boat but did not succeed in locating TIC’s employee. The record shows that no one was manning TIC’s boat at the time of the accident and it would have taken at least twelve to sixteen minutes for a TIC employee to reach the facility where the boat was docked. Moreover, TIC’s superintendent acknowledged that “the primary source of emergency action” was TIC’s arrangements with the businesses along the river rather than its own boat.

[8] The record shows that Channel 16 on a marine radio, typically monitored by boat operators, is used to transmit distress calls. The superintendent testified that he kept a marine radio on his desk in the worksite office trailer, but that he did not use it on the day of the accident.

[9] The Secretary issued citations to TIC in two other fatality cases which occurred in 2006 (Docket Nos. 06-1974 and 06-1975). The two fatalities happened on a bridge repainting project in Kansas City, Missouri on May 10, 2006, and July 5, 2006. The pleadings and evidence adduced in these later proceedings which were heard in June and July 2009, were not considered in the instant case and did not influence any determination made in this decision.

[10] However the television news reports presented the rescue, the fire fighters at the hearing did not claim to have rescued Pulido and Pasillas. Captain TenBroek, Thomas Daniels, and Kevin Reis each stated the TIC employees were already underway with a rescue plan when they arrived, and they stood on the platform behind them and assisted. Captain TenBroek wrote his report within a day or two of the rescue mission, stating he determined their plan was viable and he and his men offered their assistance. Referring to the TIC employees, Daniels stated, They were good. These guys werethey knew what they were doing (Tr. 189).

[11]Section 6(a) provides:

Without regard to chapter 5 of title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

[12] Although this line of defense was raised at the hearing, TIC does not rely on it in its post-hearing brief. Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).