WILLIAMS ENTERPRISES, INC.
OSHRC Docket No. 12100
Occupational Safety and Health Review Commission
August 29, 1977
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Before BARNAKO, Chairman; CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Harold J. Engel, Asst. Counsel for Regional Litigation, USDOL
James Brent Clarke, Jr., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On February 5, 1976, Administrative Law Judge David H. Harris issued his decision in this case, vacating a citation issued to respondent Williams Enterprises, Inc. The citation alleged that respondent was in "serious" violation of section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"] by failing to comply with the safety standards published at 29 CFR § 1926.105(a) n2 and § 1926.500(d)(2). n3
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n1 The citation originally alleged a violation of section 5(a)(1) of the Act. Before the hearing the Secretary amended the citation to allege a failure to comply with the standards at § 1926.105(a) and § 1926.500(d)(2).
n2 § 1926.105 Safety nets.
(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
n3 § 1926.500 Guardrails, handrails, and covers.
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(d) Guarding of open-sided floors, platforms, and runways.
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(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or move above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.
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Pursuant to section 12(j) of the Act, I granted the Secretary's petition for discretionary review n4 which raised the sole issue of:
Whether the Administrative Law Judge erred in concluding that the Secretary failed to establish that respondent knew or should have known of the opening in the planking as shown in Exhibit C-4?
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n4 Before the Secretary filed his petition for discretionary review, former Commissioner Moran issued a direction for review which did not specify any issues.
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Respondent was engaged as the steel erection subcontractor for the construction of a highway bridge over a railroad track in Washington, D.C. One-half of the bridge was already open to traffic, and respondent was installing and welding cross-braces between the girders on the unfinished portion of the structure. This work required that employees walk and perform the bracing operation on girders which were more than 25 feet above the ground.
During an OSHA [*3] safety inspection the compliance officer observed that respondent's employees were not wearing safety belts. Carpenters, who were employed by the general contractor, had installed plank decking between the steel girders. According to the general contractor's project safety engineer, the planks were installed to protect employees from falling and to catch debris. The planks rested on the lower flanges of the girders, a distance of four feet from the top of the girders. Respondent's foreman, Robert Black, was observed and photographed crouching on one of the steel girders (Exhibit C-3). That photograph and photographic Exhibit C-4, in conjunction with uncontroverted testimony by the compliance officer that the same girder was represented in each photograph, establish that the area directly behind the foreman was not planked.
Two of respondent's employees testified that all areas between the girders had been covered with plank decking for several days before the inspection. Furthermore, the employees were unaware of the open area in the planking that existed at the time of the inspection. When shown Exhibit C-3 both employees testified that, had the foreman fallen backwards, [*4] he would have landed on the planking four feet below. Obviously, Exhibit C-4 is to the contrary.
In his decision, Judge Harris found that "a portion of the area" behind the crouching foreman n5 was not protected by planking or decking. But he found the testimony of two of respondent's employees that decking had been installed in that area to be more reliable than contrary testimony by the compliance officer and the general contractor's project safety engineer. The Judge accordingly credited respondent's witnesses. We defer to this credibility determination. See Evansville Materials, Inc., 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). The Judge also inferred from the presence of a carpenter on the planking near the opening that the carpenter was working in the area. The Judge vacated the citation on the basis of complainant's failure "to establish that the opening in the planking in Exhibit C-4 had existed for a long enough period of time to have put respondent on notice of the danger presented by its existence or that its existence had been called to respondent's attention."
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n5 The foreman was unavailable to testify at the hearing.
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In its brief on review, respondent argues that the Judge's decision should be affirmed. According to respondent, as part of the Secretary's burden of proof in establishing a violation of the Act, he is required to show that an employer had knowledge of the hazardous condition. Respondent argues that the Secretary failed to carry his burden and that the Judge properly reconciled conflicting evidence in finding that a carpenter who was located behind the foreman had been working in connection with the planking.
The Secretary, in his petition for discretionary review, contends that the Judge erred in vacating the citation. It is the Secretary's position that even if the foreman did not have actual knowledge of the opening beneath him, a casual inspection of the area would have revealed the hazard.
To establish a "serious" violation of the Act a divided Commission has held that the Secretary must show that respondent knew or with the exercise of reasonable diligence could have known of the violative condition. D.R. Johnson Lumber [*6] Co., 75 OSAHRC 54/A2, 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, 1975). We agree with the Judge that the Secretary has failed to show that the foreman knew or should have known of the opening between the girders. The area from which the planking was assertedly removed was directly behind and four feet below the foreman. Clearly, the area in question was not readily visible to the foreman unless he turned 180 degrees on the narrow girder. Exhibit C-3 indicates that there was much activity at the time. The exhibit also reveals that a carpenter employed by the general contractor was working immediately adjacent to the opening. The carpenter's duties included installing planking. Moreover, as previously stated, respondent's employees believed that the area behind the foreman was covered with planking. Viewing this evidence together with the undisputed fact that at the time of the inspection the area between the girders was unguarded, we infer that the planking was removed by the carpenters without the knowledge of respondent's foreman, while he was crouched on the steel girder. Under these circumstances we conclude that the Secretary has not shown that respondent [*7] knew or with the exercise of reasonable diligence could have known of the violative condition. n7 Accordingly, a "serious" violation has not been established. n8
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n7 The Judge also rejected the Secretary's contention that respondent failed to comply with the cited standard by allowing its employees to be exposed to the hazard of falling off the outer edge of the span without providing any fall protection. The Judge failed to find any evidence which would establish an absence of catch platforms, scaffolds, or temporary flooring along the outer edge of the bridge. The Secretary has not excepted to those findings and, accordingly, they are not before us. See e.g. Robert T. Winzinger, Inc., 76 OSAHRC 88/D13, 4 BNA OSHC 1475, 1976-77 CCH OSHD para. 20,929 (No. 6790, 1976); Boise Cascade Corp. Composite Can Div., 77 OSAHRC 43/A2, 5 BNA OSHC 1242, 1977-78 CCH OSHD para. 21,714 (No. 802, 1977) petition for review docketed, No. 77-2201, 9th Cir., May 31, 1977.
n8 We note that a divided Commission has held that knowledge, either actual or constructive, is an element of any violation of the Act, whether it be serious or nonserious. See, e.g., Green Constr. and Massman Constr. Co., A Joint Venture, 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD para. 21,235 (No. 5356, 1976). For my own part I would add that the Commission should re-examine both D. R. Johnson Lumber Co., supra, and Green and Massman Constr. Co., supra, but should wait until a third member is appointed to the Commission in order to assure that majority action is possible in the event of a divided vote. Cf. Shaw Constr. v. O.S.H.R.C. and Usery, 534 F.2d 1183 (5th Cir. 1976).
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Accordingly, the Judge's decision is AFFIRMED.