BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 2384

Occupational Safety and Health Review Commission

April 3, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioner

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The issue in this case is whether Judge Ben D. Worcester erred in vacating a citation issued to Respondent (Bethlehem) pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). By this citation, Complainant (Labor) charged that Bethlehem had repeatedly violated n1 the occupational safety and health standard at 29 C.F.R. 1910.28(a)(1). In its complaint, Labor sought to amend the citation to allege that 29 C.F.R. 1910.132(a) was also violated. Judge Worcester refused to permit the amendment. He also held that Labor had failed to prove a violation of 29 C.F.R. 1910.28(a)(1). We have reviewed the record, and we affirm the judge's disposition for the reasons stated below.

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n1 Section 17(a) of the Act states:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[*2]

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The citation was based on an incident in which Bethlehem's employee Robinson fell to his death while performing maintenance work on an overhead crane. At the time he fell, Robinson was standing on a 12 inch wide plank high above the floor of the plant. n2 He was not wearing a safety belt.

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n2 The parties stipulated that Robinson had been standing on an electrical cabinet. Testimony, however, indicated he had been standing on the plank, and the parties now agree that this was indeed the case.

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The violation was alleged to be repeated based on a previous citation which Bethlehem had received, also alleging that 29 C.F.R. 1910.28(a)(1) n3 was violated. This citation was not contested, and the parties entered into a compliance agreement by which Bethlehem agreed that, when employees performing maintenance work on overhead cranes were not working from platforms or scaffolds, they would be tied off with safety belts and lifelines [*3] to protect them against falling.

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n3 This standard states:

Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction . . . .

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Labor essentially argues that the facts surrounding Robinson's death establish a violation of this agreement by Bethlehem, and that a repeated violation is therefore established. The threshhold question, however, is whether the evidence of record establishes a violation of 29 C.F.R. 1910.28(a)(1) with respect to the incident giving rise to the second citation.

By its terms, the cited standard mandates that work be performed from scaffolds n4 when it cannot be safely performed from the ground or solid construction. It also mandates that scaffolds be erected in accordance "with this standard," but it does not by its terms proscribe construction specifications for scaffolds. Accordingly, when cited alone it can only require that work be performed from scaffolds if it is not safe [*4] to work from the ground or solid construction. If, on the other hand, the gravamen of the Secretary's complaint is that provided scaffold has been improperly constructed, he must at least cite an employer for a violation of one of the scaffold specification standards constained in section 1910.28.

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n4 The word "scaffold" is defined at 29 C.F.R. 1910.21(f)(27) as:

Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

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In this case his brief is replete with statements that Bethlehem failed to provide Robinson with an adequate scaffold. Thus, he agrees that a scaffold was provided. It follows that the gravamen of his complaint is with respect to the construction of the scaffold. Since he did not cite for a violation of a scaffold specification standard and because of our reading of the cited standard, we agree with the judge's conclusion that the Secretary has failed to prove a violation.

We now turn to the allegation that 29 C.F.R. 1910.132(a) n5 [*5] was violated by Robinson's failure to wear a safety belt. The Judge denied Labor's motion to amend the citation to allege this standard. The motion to amend was timely and did not change the factual allegations of the citation. Accordingly, Bethlehem would not have been prejudiced by the amendment, and it should have been allowed. Lovell Clay Products, Inc., 10 OSAHRC 237, BNA 2 O.S.H.C. 1121, CCH E.S.H.G. para. 18, 327 (1974).

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n5 This standard states:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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Bethlehem argues [*6] that the term "personal protective equipment" as used in the standard does not encompass safety belts. Labor claims that, in arriving at the compliance agreement with respect to the first citation, Bethlehem conceded the applicability of the standard. We cannot accept Labor's argument. Bethlehem agreed to use safety belts under certain circumstances, but this does not establish that it believed its prior failure to do so was in violation of any particular standard or indeed even of the Act itself. Neither the prior citation nor the compliance agreement mentioned 29 C.F.R. 1910.132(a). Bethlehem cannot, therefore, be said to have admitted to a violation of this standard.

It follows that there is no basis for a finding that 29 C.F.R. 1910.132(a) was "repeatedly" violated. Additionally, we note that the compliance agreement specified only that safety belts were to be used when scaffolds were not provided. As Robinson was indeed working on a scaffold, as the Secretary's brief shows, the condition precedent to finding a violation under Labor's theory has not been satisfied. n6 We conclude that no safety belt violation has been proven. It is therefore unnecessary to consider [*7] Bethlehem's argument that 29 C.F.R. 1910.132(a) does not require the use of safety belts.

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n6 We note that the scaffolding standards require that safety belts be used on certain specific types of scaffolds. See, e.g., 29 C.F.R. 1910.28(g)(9). There is, however, no general requirement that safety belts be used on all scaffolds.

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Accordingly, the Judge's order vacating the citation is affirmed. It is so ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I must respectfully dissent from the decision of my colleagues.

On January 18, 1973, George Robinson, an employee of Bethlehem at its Sparrows Point, Maryland facility, fell to his death. His fall of about 60 feet was from an electrical cabinet (junction box) located on an overhead crane structure. Robinson, an electrical rigger, was engaged as a crane signalman during the course of gear repairs to Overhead Crane No. 3 in Mold Yard No. 4.

Investigation by compliance officers of the Department of Labor's Occupational Safety and Health Administration, revealed [*8] that Robinson had been one of a crew of men working on top of the crane. In addition to Robinson, there was another electrical rigger, a millwright and two foremen. The gear box that was to be repaired, was located on top of the trolley part of the crane. The top of the trolley was about 10 feet by 10 feet in area. On the crane structure, but at an unspecified distance from the trolley was the junction box. The area between the trolley and junction box was bridged by a 12-inch wide board of undetermined length.

Following the investigation on February 9, 1973, a citation for repeated serious violation of 29 CFR 1910.28(a)(1) n7 was issued to Bethlehem. Just one year earlier, on February 9, 1972. Bethlehem was issued a citation that also alleged its violation of 29 CFR 1910.28(a)(1).

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n7 The relevant portion of 29 CFR 1910.28(a)(1) is set out in the majority opinion at footnote 3.

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Bethlehem did not file a notice of contest to the February 9, 1972, citation. Rather, it worked out a settlement [*9] agreement with the Secretary of Labor that modified the abatement requirements of the citation. This citation is now the final order of this Commission. 29 U.S.C. 659(a) (1970).

On March 6, 1973, Bethlehem filed its notice of contest to the February 9, 1973, citation. Thereafter, the Secretary filed his complaint wherein he amended his citation to allege Bethlehem's additional violation of 29 CFR 1910.132(a) Respondent, Bethlehem, filed its answer and the case was heard before Administrative Law Judge Ben D. Worcester on August 7, 1973.

Judge Worcester dismissed that part of the complaint that alleged violation of 29 CFR 1910.132(a), correctly noting that the standard is limited in its application to the general requirements for protecting the eyes, face, head, and extremities from injury or impairment of function as the result of absorption, inhalation, or physical contact. The judge then, among other things, held that the Secretary failed to carry his burden of proof that there was a violation of the Act by Bethlehem. The only question of relevance on this review is that of the Secretary's alleged failure to carry his burden of proof.

Based on the facts set out above, [*10] I would hold that the action of the Judge in dismissing that part of the complaint alleging Bethlehem's repeated serious violation of 29 CFR 1910.28(a)(1) was error.

On January 18, 1973, one of Bethlehem's employees fell to his death while working 60 feet in the air on an overhead crane. The standard at 29 CFR 1910.28(a)(1) requires the use of scaffolding when work cannot be done safely from the ground or from solid construction. The provision is not a hortatory "broad general statement." It is a substantive requirement, the intent of which is clear. The standard describes when scaffolds must be used. Succeeding subdivisions of 29 CFR 1910.28 describe how particular scaffolds are to be constructed once it is determined that scaffolding is required.

Bethlehem violated 29 CFR 1910.28(a)(1) by failing to provide any scaffolding for its employees working on Overhead Crane No. 3 in Mold Yard No. 4. As 12-inch wide board suspended between trolley and junction box is not a scaffold. That is obviously the reason why Bethlehem was not cited for any of the other subparts of 29 CFR 1910.28. A citation may not be issued for failure to construct properly [*11] a particular scaffold when no scaffold at all has been constructed. Hence, there is a necessity for a standard requiring scaffolding to be constructed in the first instance; i.e., 29 CFR 1910.28(a)(1). Cf. Daniel Constr. Co., No. 970 (August 5, 1974). Cf. Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

The fact that an accident has occurred does not in every instance equate with a violation of the Act. National Realty & Constr. Co., Inv. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). In this case, however, the standard was designed to protect against the precise type of accident that occurred. The accident was preventable. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1579 & 74-1568 (2d Cir., March 10, 1975). A man fell 60 feet from an overhead crane. It follows perforce that the work involved could not be done safely from solid construction as required by the standard. Under these circumstances, the standard requires scaffolding. It is undisputed that scaffolding was not provided. Respondent's failure to provide proper scaffolding is a violation of 29 CFR 1910.28(a)(1). A breach of a duty [*12] under the standard establishes a violation of section 5(a)(2) of the Act. n8

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n8 Because I would have found respondent in violation of the Act on the evidence admitted by the Judge, I would not consider his refusal to admit hearsay testimony offered by the Secretary under the declaration against interest exception to the hearsay rule.

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Bethlehem should be found in serious violation of section 5(a)(2) of the Act. Moreover, the facts surrounding that violation, in my opinion, require the finding of a repeated violation within the meaning of section 17(a) of the Act.

The undisputed testimony of complainant's officer established that the February 9, 1972, citation was issued because Bethlehem did not provide any scaffolding in some instances and did not provide proper scaffolding in other instances to men working on overhead cranes. Men doing maintenance work on overhead cranes were exposed to the hazard of falling.

The February 9, 1973, citation was issued for the same reason. I note that the cranes were [*13] in different areas of the plant, and in this case the men were working on top of the crane while the 1972 citation was issued because men were doing maintenance work beneath the cranes. These differences, however, do not alter the essential similarity of the citations. The facts of this case therefore establish a repeated violation within the meaning of section 17(a) and I would so hold. Todd Shipyards Corp., No. 1556 (January 31, 1975).

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises as a result of a notice of contest filed by the Bethlehem Steel Corporation on March 8, 1973, pursuant to the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 19 U.S.C. 651 et seq. ) hereinafter called the Act. The matter was heard in Baltimore, Maryland, on August 7, 1973.

The Respondent is a major steelmaker with its principle office in Bethlehem, Pennsylvania, and branches in other parts of the United States including Sparrows Point, Maryland, where the Secretary made an inspection on November 17, 1972. As a result of this inspection a Citation for violation of 29 CFR 1910.28(a)(1) was [*14] issued on February 9, 1972, alleging:

On inspection of 11-17-71, it was observed that proper scaffolding and platforms for changing collector shoes and working on trolleys are not used for #3 floor crane -- B.O.F. Plant, pit cranes -- B.O.F. Plant and #5 pit crane -- #1 open hearth. The few platforms and scaffolds observed in place were not adequate. Access to platforms was dangerous.

The Citation further provided that the alleged violation be abated forthwith by providing proper scaffolds, platforms and access to work areas. The record does not reveal what action was taken by the Respondent upon service of the Citation, but it does show that after an informal conference between the Respondent and the Secretary's office in Baltimore, Maryland, a modification of the methods to be utilized for abatement of the violation was approved. The details of the agreement were embodied in a letter from the Respondent to the Secretary's Baltimore office which was filed with the pleadings. The Respondent said:

With respect to the cranes which are the subject of Citation No. 3, this will confirm our understanding that this Citation is abated on the basis that when employees are [*15] performing repair and maintenance work on those cranes and are not working from platforms or scaffolds, they will be tied-off with safety belts and lines while working four feet or more above adjacent floor or ground level and that safe access will be provided to the point of tie-off.

The record does not reveal that, as required by Sections 6(d) and 10(c), that all affected parties were given an opportunity to be heard before what appears to be a variance was approved.

I

The evidence shows that on January 18, 1973, George Robinson, an electrical rigger employed in the Respondent's Sparrows Point, Maryland plant, while acting as a signalman on an overhead crane in the mould yard, was standing on a plank approximately 12 inches wide stretched across a 10 foot span from the crane trolley to a junction box.

John Woodson, a millwright, was on the same crane at the same time that Robinson fell to his death 60 feet below. However, neither Woodson nor any other witness explained what happened so that the cause of the fall is unknown. Robinson could have slipped, or jumped deliberately. He could have ventured forth into an unprotected space without first putting on a safety belt. It [*16] was stipulated that he had been issued a safety belt but was not wearing it at the time. The absence of testimony as to what if any connection the failure to wear a safety belt had to do with Robinson's fall leaves the question of the employer's responsibility unanswered. Woodson testified that Bethlehem had always erected scaffolding when asked and had supplied safety belts as long ago as 1964. He had used a belt on some occasions. On other occasions where performance of the assigned crane repair work was impeded by the wearing of a belt he had worked without it.

Another employee who was also present at the time Robinson fell (Holloman) testified that just before that occurred he had been ordered by a foreman, Linhard, to build up "bigger" scaffolding which shows that some scaffolding was installed before Robinson fell.

On February 9, 1973, the Secretary issued the following Citation:

Description of alleged violation -- Date on which alleged violation must be corrected

Failure to provide and use safe working platforms such as scaffolding or, where appropriate, other equivalent means such as safety belts and life lines where personnel were engaged in work that could [*17] not be done safely from the ground of from solid construction. For example: On January 18, 1973 men repairing Crane #3 in mould yard #4 were not provided with a safe scaffold and were not wearing safety belts and life lines in areas 40-60 feet above ground level. This was a repeated violation in that on 2-9-72 Bethlehem Steel Corp. received a Citation for Serious Violation for not providing proper scaffolds for men changing collector shoes and working on trolleys on cranes in the B.O.F. Plant and #1 open hearth area. (Copy of previous Citation attached) -- Immediately upon receipt of this Notice safe working surfaces such as proper scaffolds and/or appropriate life belts and life lines shall be provided and used when personnel are engaged in work that cannot be performed safely from the ground or from solid construction.

II

Before any evidence was adduced the Respondent moved to dismiss the Complaint, first on the ground that Section 28(a) is not a national consensus standard as defined in the Act and, second, that the Secretary had in effect abandoned the allegation that there was a violation of the standards for scaffolding as laid down in Section 28 and had alleged instead [*18] that there was a violation of Section 132(a) because employees were working on an overhead crane without wearing safety belts and a life line.

The Secretary was authorized by the Congress (See Section 6(a) of the Act) to promulgate as occupational safety and health standards any national consensus standard or any established Federal standard. In the event of conflict among any such standards the Secretary was authorized to promulgate the standards which assured the greatest protection of the safety and health of affected employees. The term "national consensus standard" is defined in Section 3(9) of the Act as any occupational safety and health standard which: (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedure whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary after consultation with appropriate federal agencies.

The Respondent [*19] asserts that no steelmaker participated in the adoption of the standards from which Section 28(a) was derived and that interested and affected employers had no opportunity to comment before the standard became effective and that, for those reasons, the pertinent section is not a national consensus standard.

On the 27th day of April 1971, the Secretary of Labor pursuant to the provisions of Section 6(a) and 8(g) of the Williams-Steiger Occupational Safety and Health Act of 1970 n1 promulgated Part 1910, Title 29, which appears to meet all of the three requirements of Section 3(a) of the Act. The preamble states that:

The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by the National Fire Protection Association (NFPA) under procedures whereby it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption. I have determined that those standards have been adopted and promulgated under such procedures. Accordingly, pursuant to this determination, after consultation with other appropriate [*20] Federal agencies, and in accordance with section 3(9) of the Act, I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association.

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n1 36 F.R. 10466, May 29, 1971.

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The preamble further provided that:

The effective date of the national consensus standards is delayed for 90 days with respect to every employer and employment subject to the Williams-Steiger Occupational Safety and Health Act of 1970

The purpose of the delay is to insure that affected employers and employees would be informed of the existence of the standards and of their terms, and to give such employers and employees an opportunity to familiarize themselves with the requirements of the standards before their application.

There is a presumption that the Secretary's finding that the ANSI standards were adopted and promulgated in full compliance with the procedures prescribed by statute [*21] is a valid conclusion in the absence of affirmative proof to the contrary. The Respondent and other steelmakers had 90 days within which to take exception to the standards if they desired to. They did not. Section 28(a) is a validly promulgated national consensus standard applicable to all industry in general although it may have been developed by the construction industry.

The Secretary's contention that Section 28 is an established Federal standard cannot be reconciled with the statement in the preamble to Part 1910 that other standards already in effect on April 28, 1971, such as the Contract Work Hours and Safety Standards Act, were adopted as "established Federal standards." These are in addition to those promulgated as Part 1910.

The Respondent's reliance upon Secretary of Labor v. Oberhelman Ritter Foundry, Inc., Docket No. 1572, is not helpful to its contention that Section 28 is not a national consensus standard. In that case the Secretary made a material change in the language of the ANSI standard by substituting a mandatory word "shall" for an advisory word "should."

As Judge Rubin said:

With the modification from an advisory to a mandatory requirement, [*22] the standards no longer meet the definition of a national consensus standard.

There was no such alteration in the ANSI standard when Section 28 was promulgated.

III

The Respondent attacks the allegation that there was a "repeated" violation by asserting that:

1. The 1972 Citation was void ab initio because it was not issued with reasonable promptness after inspection and,

2. That no employees were exposed to the hazard of an inadequate scaffold.

There is no evidence that the Respondent suffered any harm as a result of delay. There was jurisdiction of the subject matter. The Respondent submitted to jurisdiction of the person willingly and without objection until now. The Secretary's Citation of February 1972 became a final order more than a year ago under the provisions of the Act. Such a belated attack upon its validity is without merit. The February 1972 Citation is not void ab initio. It is obvious that employees working at a height of 60 feet must be protected against falling. Exposure to this hazard is a question of fact which must be determined after weighing the evidence.

IV

The Respondent also asserts that if the February 1972 Citation is [*23] held to be valid, that it still cannot serve as a basis for a "repeated serious" violation of 29 CFR 1910.28(a)(1) because the cranes involved in the 1972 Citation were located in the open hearth and the work being performed was underneath, whereas the crane involved in the 1973 Citation was located in the mould yard and the work was being performed on top. The Respondent apparently assumes that there can be no "repeated" violation unless the 1973 incident upon which the matter in issue is based occurred on the same crane in the same department of the Respondent's plant. To carry this argument to its logical conclusion it might be said that it also would be necessary to show that the affected employee in 1973 was of the job classification (rigger, millwright, etc) and performing the same task ad infinitum. This argument is unsound. It is clear that the Secretary in issuing both Citations had the same objective in mind, the enforcement of lawfully promulgated standards for the protection of the Respondent's crane maintenance employees, of whatever trade and in whatever part of its Sparrows Point plant, from falling from an overhead crane and being seriously injured [*24] or killed. This was not accomplished. The purpose of this inquiry is to find out why this irreversible tragedy occurred and if the Respondent can be held responsible under the provisions of the Act and the standards.

V

There is some question as to whether the Congress intended in the enactment of Section 17(a), to provide for two types of violations for which a maximum penalty of $10,000 could be assessed. The Secretary has concluded n2 that there are two types of violation of Section 17(a). n3 The legislative history throws little light on this question but a logical and reasonable interpretation of the meaning of it is that the Congress was speaking in the alternative and that whether an employer deliberately violated a standard or showed a lack of concern for the health and safety of his employees by repeatedly subjecting them to a hazard which he was aware of, that he could be assessed a penalty of as much as $10,000; for example, where there is a hazard from inadequate protection of maintenance employees working on overhead cranes. This is in contrast to paragraphs (b) and (c) of Section 17 where it was made clear that two separate and distinct types of violations with different [*25] penalty provisions were described, "serious" and "not . . . of a serious nature."

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n2 Chapter VII 4b. Compliance Operations Manual (January 1972).

n3 Footnote 2 supra.

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It is this Judge's finding and conclusion of law that only one type of violation exists under the provisions of Section 17(a). A willful violation would be established if there were one incident in which employees were exposed to danger by the conscious and intentional act of the employer. A repeated violation can be established only if there is proof of an incident which is factually identical to a previous episode involving the same employer. There is a difference in the proof required. Intent or presumed intent is not a necessary element of proof where there is an allegation of a repeated violation but there must be evidence showing that it is at least the second offense of the same kind. The maximum penalty in either case is $10,000.

VI

The Respondent, who allowed a charge of violation of 1910.28(a)(1) on November 17, 1971, [*26] to become a final order by failure to file a notice of contest, is now alleged to have committed a second violation of the same standard on January 18, 1973. This is a question of fact. Undisputed evidence that an employee was killed when he fell from a crane at Sparrows Point on January 18, 1973, does not prove that there was a violation. It only proves that an employee was killed. The proximate cause of the fall was never explained.

The Secretary, after the November 1971 inspection, apparently decided that there was a danger of serious injury or death to crane maintenance men if they were not protected by scaffolds when working on overhead cranes. A Citation for use of "scaffolds . . . which were not adequate" was served. There is some question as to whether a violation was specified with particularity here, but a final order bars reopening that issue. In any event, the Secretary had second thoughts about it and, after discussion with the employer's staff, approved the agreement which was embodied in the letter dated March 3, 1972 (supra).

On direct examination the Secretary's compliance officer, Hill, testified that he was present at a conference with persons from Bethlehem [*27] Steel when this understanding was reached on February 25, 1972. He was then asked if he remembered what the terms of the agreement were. He said:

A. Well, my recollection is that it boiled down to the fact that where scaffolds could be used and built, they would be supplied and built promptly, according to the standards.

The point was brought up that this was not always possible under all circumstances. The main thing that was in question was the fact that they had some scaffolds under trolleys in a few places like that that were inaccessible. And the way to them was not too safe.

This is where Mr. Daley broached the subject of maybe in lieu of proper ladders and so forth, getting down there, wherever it is impossible to supply scaffolding or proper stairs or ladders, tying off with a life line to protect anybody from falling would be appropriate.

Hill said that he had participated in both the 1971 and 1972 inspections. He was asked what similarities he had noted in the facts. He said:

A. The similarities were, No. 1, cranes both times were involved. No. 2, it was the lack of scaffolding or proper scaffolding that was apparent in both cases. Any precautions [*28] that would be taken in working around equipment at these heights.

Q. To the best of your knowledge, and from your knowledge of both cases, did you think that any different hazard was involved in 1973 than had been involved in 1972?

A. Well, only this -- there had been a specific accident in 1973. It was pointed out that the very thing we had agreed upon over a year and a half ago, that they would take these precautions of providing scaffolding, which was pointed out as lacking previously in their maintenance operations -- and back when I made the original investigation, it wasn't just one specific incident. It was the fact that this was a work practice that took place over many of the operations in the cranes, repairs.

Specifically, as to the original one, I was investigating particularly the scaffolding that was underneath trolleys, for the repair of trolleys, on at least two or three cranes. But in general the walkways and scaffolding that were provided for work on the cranes was practically lacking or inadequate.

This is what brought the conference about and the original citation.

On cross examination Hill testified that it was only after consultation with his superior [*29] that it was decided to charge the Respondent with a failure to require the use of safety belts in addition to violation of Section 1910.28(a)(1). Hill said that:

This was in addition to the other one, bringing out, let's say, the actual circumstances of the agreement. It is not part of the standard. It is just an observation.

Hill said that it was his opinion that the regulation pertaining to scaffolding was violated on both occasions and that this was the sole basis of his recommendation in February 1973 that an allegation of a repeated violation of Section 1910.28(a)(1) be issued.

The Complainant's procedure both before and after the January 18, 1973, inspection is of doubtful validity in several instances. The approval of an arrangement whereby safety belts could be used instead of scaffolds amounts to approval of a variance without an opportunity for a hearing as required by Sections 6(d) and 10(c) of the Act. It is clear from the testimony of Hill that although it was conceded that in some situations a scaffold was impractical and that safety belts and life lines would be more suitable, the similarity in what he saw in November 1971 to what he saw in January [*30] 1973 was inadequate scaffolding. Nevertheless, a Citation was issued which, although alleging a violation of Section 1910.28(a)(1), included an allegation of failure to use a safety belt without reference to a standard. This part of the Citation cannot be reconciled with Hill's testimony that he saw only a scaffolding violation.

The Complainant, thereafter in clear contravention of the provisions of Section 9(a) of the Act added to the Complaint an allegation of a violation of a standard not mentioned in the Citation, Section 1910.132(a). This section is limited in its application to the general requirements for protecting the eyes, face, head and extremities from injury or impairment of function as the result of absorption, inhalation or physical contact. Upon reconsideration of granting of the Respondent's motion at trial to vacate the allegation of a violation of 29 CFR 1910.132(a), it is hereby found and concluded that so much of the allegation as pertains to this standard was properly vacated.

VII

The Secretary sought to establish a pattern of persistent failure to require employees working on cranes to wear safety belts by asking his own witnesses to repeat an out-of-court [*31] declaration by two of the Respondent's foremen who were not present at the hearing. This testimony was excluded. The Secretary, in his brief, argues that this ruling was erroneous. Since the Secretary has consistently followed this practice it is appropriate that the reason such procedure must be disapproved needs to be spelled out even though the alleged failure to wear belts is not in issue.

The Complainant's reliance on the proposed Federal Rules of Evidence in support of the argument that the proffered evidence (which was classified as admissions against interest) by two of Respondent's foremen should have been admitted in without merit for two reasons: first, because the proposed rules have not yet become effective n4 and secondly, even if they were effective the proffered evidence would be inadmissable. Before the Administrative Procedure Act was enacted it was the rule in Federal Administrative Proceedings that mere uncorroborated bearsay or rumor is not substantial evidence. n5 Post APA it was held that hearsay may not be used as a basis for an order to support findings of an administrative agency and that findings cannot be based upon hearsay alone. The declarant [*32] of proffered admissions against interest must be available for cross examination. n6

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n4 Hearings before the Subcommittee on Criminal Justice, Committee on the Judiciary, 93d Cong. (October 10, 1973).

n5 Consolidated Edison Co. v. NLRB, 59 S.Ct. 206, 217 (1938).

n6 Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 691 (9th Cir. 1949).

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Hearsay evidence is admissable in a hearing subject to the Administrative Procedure Act but an Administrative Law Judge is empowered to exclude evidence which is not of the "kind on which responsible persons are accustomed to rely in serious affairs." n7 The ultimate test of admissibility must be whether the proffered evidence is reliable, probative and relevant. Senator McCarran explained on the floor of the Senate what this means. He said:

You may go outside and get what would be secondary evidence, or hearsay; . . . but when you write your decision it must be based upon probative evidence and nothing else. If in the formation of your decision you consider other [*33] than probative evidence, your decision will be subject to being set aside by a court of review. n8

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n7 Final Report of the Attorney General's Committee, page 50, Senate Document No. 8, 77th Cong. 1st sess. 1941; NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d Cir. 1938, cert. den. 304 U.S. 576, 585 (1938).

n8 Senate Document No. 248, 79th Cong., 2nd sess. 320 (1946).

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It was made clear to both parties at the pre-hearing conference that material facts could not be established by means of hearsay evidence in the absence of proof that the declarant was not available. The hearing was held in the area where the two foremen live and work. After all evidence was in the Secretary was again given an opportunity to present the testimony of these witnesses. They were neither presented nor was there any explanation for their absence offered. The weight and probative value of the proffered testimony depends upon the credibility of the out-of-court declarant. n9 That can only be determined if the witness is made [*34] available.

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n9 McCormick Evidence, 2d Ed. p. 584.

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Under the proposed Federal Rules of Evidence admissions by an agent of a party opponent are called statements which are not hearsay instead of being admitted under an exception to the hearsay rule; but the proposed Federal Rules of Evidence have not yet become effective, so that the proffered admissions are still a form of hearsay n10 which is admissable only as an exception to the rule. There is authority for the admission of hearsay even in a criminal case but only where the declarant is available for cross examination. n11 In the case at bar neither declarant was available for cross examination because the Complainant declined to submit them to it. The proffered testimony was properly excluded.

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n10 Morgan, Basic Problems of Evidence 265 (1962).

n11 United States v. Barbati, 284 F.Supp. 409 (E.D.N.Y. 1968).

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VIII

The inadequate performance of both the Secretary and Bethlehem of their dual responsibility to assure as far as possible every working man and woman safe and healthful working conditions n12 was demonstrated by the accidental death of an employee on January 18, 1973. The Secretary's enforcement has been marked by confusion and uncertainty. After the November 1971 inspection the Secretary concluded that scaffolds (of some unspecified type) would prevent an employee performing maintenance work on an overhead crane from falling, so a vague Citation referring only to scaffolds was issued. After consultation with the Respondent it was conceded that scaffolds alone would not be sufficient because there were times when certain functions could not be accomplished from a scaffold. The Respondent agreed that safety belts would be worn in those instances.

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n12 Section 2(b) Occupational Safety and Health Act of 1970.

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The Respondent issued safety belts to riggers 9 or 10 years ago, but Robinson [*36] was not wearing one at the time he fell. This suggests that the Respondent failed to comply with the promise made on February 25, 1972, that safety belts would be worn whenever a scaffold would not protect the employee from falling, but there is no proof that this is true.

The compliance officer who made the inspection thought the accident occurred because there was inadequate scaffolding. There is testimony from a rigger, Holloman, who was on the crane, that his foreman, Linhard, was on the crane also. He had been ordered to go down after lumber to enlarge the scaffolding which was already in place. This is the same Linhard whose alleged admission against interest was proffered through the Secretary's witness. If the Complainant had taken advantage of the opportunity to present Linhard as a witness, Linhard could have been asked on direct examination why Robinson was not wearing a safety belt, why all work was not halted until Holloman returned with lumber and the scaffold was enlarged and why he thought the scaffold needed enlargement.

IX

The Complainant's allegations of violation of the Act are not supported by sufficient evidence to sustain the burden of proof that there [*37] was a violation. In addition, the Citation and Complaint both failed to describ with particularity the nature of the alleged violation as required by Section 9(a) of the Act.

In Secretary of Labor v. Keibler Industries, Inc., Docket No. 1689, Judge Chalk said that a charge of violation of a standard is not legally sustainable where the subsection relied upon is general in nature and serves as an introduction to specific standards that follow in other subparts. Section 1910.28(a)(1) is a broad general statement which is followed by specific standards which inform employers as to what must be done. For example, subparagraph (a)(2) deals with footings. Subparagraph (a)(4) specifies load bearing requirements. The succeeding pages of tables and subparagraphs specify the different requirements for various types of scaffolds such as wood pole, tubular welder frame, outrigger and many others. A fair conclusion, upon consideration of the record in this case, is that the Secretary, after having decided that the January 18, 1973, accident occurred because of inadequate scaffolding, was unable to find any factual basis for charging the Respondent with violation of any [*38] of subparagraph (a)(2) through (v), 37 F.R. 202, October 18, 1972, pages 22121-22128, and this is why an allegation of violation of Section 1910.132(a) for failure to wear safety belts and lifelines was added.

ORDER

Upon consideration of the record as a whole, the Citation dated February 9, 1973, and the proposed penalty of $5,000.00 should be, and hereby are, VACATED. This proceeding should be, and hereby is, DISMISSED.