H.E. WIESE, INC., and INDUSTRIAL ELECTRICAL CONSTRUCTION COMPANY

OSHRC Docket Nos. 78-204; 78-205

Occupational Safety and Health Review Commission

March 31, 1982

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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.  

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

G. Michael Pharis, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge David G. Oringer is before the Commission under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   These cases were consolidated before the hearing on the joint motion of both Respondents, H.E. Wiese, Inc. ("Wiese") and Industrial Electrical Construction Company ("Industrial").   Judge Oringer affirmed a citation against each Respondent alleging a serious violation of section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), for failure to comply with the scaffold access safety standard at 29 C.F.R. §   1926.451(a)(13). n1 The judge also found Wiese in serious violation of the Act for failure to comply with the personal protective equipment standard at 29 C.F.R. §   1926.28(a), n2 based on the exposure of employees of Wiese who worked without safety belts and lanyards at an unguarded elevation.   The Secretary of Labor ("the Secretary") had alleged that the violation was repeated.

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n1 29 C.F.R. §   1926.451(a)(13) states:

§   1926.451 Scaffolding.

(a) General requirements.

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(13) An access ladder or equivalent safe access shall be provided.

n2 §   1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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The Secretary and both Respondents petitioned for discretionary review of the judge's decision.   I directed review on all of the issues raised by the petitions, including:

1.   Whether the judge erred in concluding that Wiese failed to comply with 29 C.F.R. §   1926.28(a), and that the failure to comply constituted a "serious", but not a "repeated" violation of section 5(a)(2) of the Act?

2.   Whether the judge erred in concluding that both respondents failed to comply with the standard at 29 C.F.R. §   1926.451(a)(13)?

The Commission [*3]   affirms the judge's finding against both Respondents on the section 1926.451(a)(13) charge.   However, the Commission reverses the judge's conclusion that Wiese violated the Act by failing to comply with section 1926.28(a) and we vacate the citation alleging that violation.

I

A

The citations now before us were issued as a result of an inspection conducted by compliance officer Don R. Welch of the Occupational Safety and Health Administration ("OSHA").   Both Respondents were engaged in the construction of a building at the inspected worksite for the Naptha Unit of Dow Chemical.   The citations alleging that Wiese and Industrial failed to comply with section 1926.451(a)(13) related to conditions located in the compressor deck area of the worksite.   In this area, an overhead bridge crane spanned the width of the building under construction.   Components of the crane included an elevated I-beam, a track (rails) on top of the beam, and a trolley (carriage) that moved back and forth along the track.   At the time of the inspection, a scaffold was located on top of the trolley. The I-beam was approximately 20 feet above the compressor deck and 42 feet above the ground.

Compliance officer [*4]   Welch testified that, as he returned from inspecting the electrical transformer that was the subject of an employee complaint, he observed two people working from the trolley scaffold installing lighting above the compressor deck. The only way to reach the scaffold was to climb a ladder that extended 20 feet from the deck to a 6-inch-wide sheet girder attached to a wall.   Industrial's supervisors told the compliance officer that, from this girder, employees stepped across an unguarded 2-foot gap to the I-beam supporting the track, then climbed up the side of the trolley and over the scaffold guardrails onto the scaffold. The two persons observed on the scaffold were employees of Industrial.   A third person, employed by another contractor (neither Industrial nor Wiese), told the compliance officer that he had been using the route described above on a regular basis to reach the scaffold, where he had worked as a mill-wright under Wiese's direction.   On this basis, Industrial and Wiese were cited for allegedly violating the requirement of 29 C.F.R. §   1926.451(a)(13) that "[a]n access ladder or equivalent safe access" to scaffolds be provided.   At the hearing, compliance officer Welch [*5]   gave opinion testimony that the method of access used was unsafe because the 2-foot gap exposed employees to a fall of 20 feet to the concrete compressor deck or 42 feet to the ground.   Welch further testified that the probable result of a fall through the gap would have been serious injury or death.

In addition the compliance officer testified that, in his opinion, a landing platform with guardrails could have been built and braced across the gap to provide safe access.   This testimony was disputed by supervisors and safety managers for both Respondents who testified to conditions which they believed would have made it hazardous to build and use the access platform described by the compliance officer.   One of the supports for this platform would necessarily have been the I-beam on which the bridge rail of the crane rested, and on which the crane's trolley and the scaffold traveled back and forth.   However, the lower flange of the I-beam was approximately 12 to 14 inches lower than the sheet girder, which would have supported the other side of the platform. Accordingly, B. B. Ouber, Wiese's assistant superintendent, rejected the compliance officer's suggestion on the ground that [*6]   the landing platform would be steeply slanted, thereby creating a greater risk of falling.   Two other methods of constructing a landing platform were suggested.   However, these were also rejected by Ouber because, although either method would result in a horizontal platform, both methods required welding. In Ouber's view, welding would weaken the crane and could result in the crane's collapse it it were operated at its full 55-ton capacity.   Ouber also suggested the possibility that welding could create an explosion hazard. In addition, another witness, a vice-president of Industrial, asserted that a landing platform should not have been installed because employees would have been endangered while they were welding the platform.

Other possible access methods, and Respondents' objections to them, are also set forth in the record.   For example, Ouber described an access route to the trolley temporarily used after the citations had been issued in these cases and after the trolley scaffold had been dismantled.   This involved (1) ascending to a platform built on girders, (2) ascending from the platform by means of a secured ladder to a catwalk, and (3) stepping directly through a hand [*7]   railing on the catwalk onto the trolley. Ouber also testified, without contradiction, that this method could not have been used at the time of the inspection because it would have precluded trolley movement, which was then necessary in order to complete the installation of lighting.   In addition, Ouber testified that prior to the inspection he considered the possibility of providing access by means of a moveable unsecured ladder rested against the catwalk.   He noted, however, that the crane could not have been moved, and thus the work could not have been performed, with the ladder in this position.   It therefore would have been necessary to remove the ladder after the employees had gained access to the scaffold. Accordingly, Ouber testified, this method of access was "disregarded" because employees would be left with "no way down" in the event of an injury or when they needed to get water or to use the bathroom.

B

Judge Oringer affirmed the alleged violation with respect to both Respondents.   After entering findings on the means of access used to reach the scaffold, the judge further found, citing to the opinion testimony of the compliance officer, that "[e]mployees ascending   [*8]   to gain access to the scaffold were exposed to an open span of approximately two feet and thus were exposed to a fall of twenty feet to the concrete compressor deck which could bring about broken bones, concussions, contusions and possible death." Because "the area to which access was needed contained a hazard," the judge concluded that noncompliance with the cited standard had been proved. n3 The judge also entered findings that two employees of Industrial and a third employee under Wiese's supervision had been exposed to the cited hazard.

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n3 In the course of his discussion, the judge stated that, in his opinion, "the access provided and the access ladder comprised a hazard and when the standard requires that an access ladder shall be provided, it means a safe access ladder." (Emphasis supplied by the judge.)

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With respect to the disputed issue of whether safe access could have been provided, the judge concluded that the testimony of the compliance officer was "logical." Based on this testimony, Judge Oringer found [*9]   that "[t]he hazard could have been abated by utilizing a landing platform which could have been built and braced between the sheet girder and the lower flange on the crane rail." He further found that the violation was abated after the inspection. In addition, the judge rejected Respondents' argument "that the crane could not have been used without such an access hazard being present." He stated, "After reviewing all of the evidence, I do not agree."

On review, the Respondents contend that the judge misconstrued the requirements of the standard.   They take exception to his statement that a "safe" access ladder must be provided, arguing that an access ladder was provided as required by the standard and therefore "[t]here was no need to consider an alternative equivalent safe access." They also assert that the ladder was the safest possible access to the scaffold. In addition, Respondents argue that the judge improperly interpreted the standard as requiring that an access ladder extend all the way to a scaffold. Alternatively, they suggest that, if the standard is given the meaning ascribed to it by the judge, then it is unenforceably vague because "[t]he only thing ascertainable [*10]   from the cited standard is that an access ladder is needed."

Respondents also argue that the judge erred in finding that the hazard could have been abated by erecting a landing platform as suggested by the compliance officer.   They assert that their witnesses established that there was no adequate method to secure a platform and that abatement after the inspection was only possible because there was no longer a need to have the crane move.   In their view, a landing platform at the time of the inspection would have prevented the necessary movement of the trolley.

The Secretary argues in support of the judge's disposition.

C

At the outset, Commissioner Cottine and I reject the contention of Respondents that they complied with section 1926.451(a)(13) by providing an access ladder, notwithstanding the fact that the ladder in itself did not provide complete access to the scaffold in question.   Respondents correctly argue that the standard does not require that an access ladder extend all the way to a scaffold. n4 Nevertheless, the plain meaning of the standard is that safe access must be provided at all points between the lower elevation and the scaffold, whether by a ladder, by equivalent [*11]   means, or by a combination of a ladder and other means.   Here, Judge Oringer based his conclusion that Respondents failed to comply with section 1926.451(a)(13) on his finding that employees were exposed to a hazard at a point in their access route between the compressor deck and the scaffold. In arriving at this determination, the judge correctly interpreted the standard's requirements. n5

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n4 Respondents misconstrue the judge's decision as setting forth a contrary holding.   We find no indication that the judge held that a ladder must extend all the way to the scaffold.

n5 Although the judge stated that the standard contains a requirement that any access ladder that is provided must be "safe," it is clear that his finding of noncompliance is based not on any defect in the existing ladder but on the hazard that was present between the top of the ladder and the scaffold. Because Respondents did not provide an access ladder between the 6-inch-wide sheet girder (the top of the existing ladder) and the scaffold, they were required to provide "equivalent safe access" through this last segment of the access route.   This they did not do.

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The Commission recently upheld application of the same rationale to an alleged violation of the standard at section 1926.450(a)(1), requiring ladders or equivalent safe access to all elevations.   In Steel Erectors, Inc., 81 OSAHRC 18/F1, 9 BNA OSHC 1399, 1981 CCH OSHD P25,228 (No. 77-1118, 1981), the Commission agreed with the judge's determination that the employer failed to prove its access methods provided safe access equivalent to the protection that would have been afforded by use of ladders. The employer in that case provided a stair tower to the elevation in question but employees were nevertheless exposed to a hazard when they crossed unguarded planks to reach the area where they performed their work.   The facts in the case now before us are similar to those in Steel Erectors, Inc., and here, as in that case, the employer's defense was correctly rejected by the judge.

Respondents' argument that 29 C.F.R. §   1926.451(a)(13) is unenforceably vague has been rejected previously by the Commission in Ringland-Johnson, Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1346 n.11 [7], 1976-77 CCH OSHD [*13]   P20,801 at p. 24,947 n.11 (No. 3028, 1976), aff'd, 551 F.2d 1117 (8th Cir. 1977), because in both "common and industry understanding, the words 'ladder' and 'equivalent' are not ambiguous and fairly apprise employers of the conduct required of them." See also, Deering Milliken, In., Unity Plant v. OSHRC & Marshall, 630 F.2d 1094, 1103 (5th Cir. 1980), quoting Ryder Truck Lines v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974) ("So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass . . . muster.") Neither is the phrase "safe access" unclear as it is used in the standard.   An access route that includes one or more hazardous areas is not safe because employees will confront the hazard on their way to the scaffold's work surface.   The fall hazard posed in these cases by the gap between girder and crane makes the access unsafe.   Because neither a ladder nor its equivalent bridged this gap, the standard was contravened.

Respondents further object to the judge's finding that they could have abated the hazard by installing a landing platform. They cite testimony that, in their view,   [*14]   establishes that installation of the suggested platform, as well as the other alternatives considered at the hearing, was impossible.   Specifically, they rely on testimony that welding the platform in place might weaken the structure and testimony that a ladder providing direct access to the work area would preclude operation of the crane trolley, particularly under the circumstances that existed on the day of the inspection.

An employer proves an affirmative defense of impossibility when it shows that (1) either compliance is physically impossible or it would preclude the performance of necessary work, and (2) there are no alternative ways to protect exposed employees.   M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979 CCH OSHD P23,330 at p. 28,227 (No. 15094, 1979).   We conclude that the Respondents have failed to sustain their burden of proof in these cases.

The judge rested his feasibility finding on testimony by the compliance officer that a landing platform could have been anchored to the girder and the crane's I-beam. n6 Ouber, whose testimony is the basis of Respondents' challenge to the installation of a landing platform, conceded that it was possible [*15]   to install a platform. In addition, there is no evidence that a landing platform would have prevented the movement of the crane trolley and thus the completion of the work in progress at the time of the inspection.

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n6 We conclude that, although the judge found that the hazard was abated after the inspection, his finding that compliance was possible at the time of the inspection was based on the opinion testimony of the compliance officer and not on the fact of post-inspection abatement.   We note that the method of abatement found feasible by the judge was the landing platform recommended by the compliance officer and not the method used after the inspection. Thus, we need not address the question of whether the post-inspection abatement method could have been used prior to the inspection.

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Similarly, Ouber conceded that employees could have reached the trolley directly by a ladder to the catwalk, so long as the ladder was not secured.   If the ladder was removed whenever it was necessary to move the crane, it would [*16]   not have interfered with the work.   While it may have been inconvenient to remove and replace the ladder whenever employees needed access to or from the scaffold, mere difficulty or inconvenience of compliance is not a defense.

The testimony in opposition to the alternative of installing a landing platform was treated by the parties and the judge as raising the impossibility defense.   However, the testimony of the witnesses as to their differing assessments of the relative safety of the various proposed methods of access squarely raises the issue in these cases as to whether abatement of the fall hazard by means of a landing platform or other suggested alternatives would have created an even greater hazard to employee safety.

To establish the greater hazard affirmative defense, the employer must show that: (1) compliance with a standard would create a hazard greater than that created by noncompliance, (2) alternative means of protecting the employees were either not evailable or used, and (3) an application for a variance would be inappropriate.   Roofing Systems Consultants, 80 OSAHRC 51/C13, 8 BNA OSHC 1446, 1980 CCH OSHD P24,504 (No. 76-592, 1980); S & H Riggers & Erectors,   [*17]    Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd on other grounds, 659 F.2d 1273 (5th Cir. 1981). We conclude that Respondents have also failed to meet this burden and therefore they have not established a greater hazard defense.

In our view, Respondents have not proved that any of three suggested alternatives would have created a hazard greater than that existing at the time of the inspection. We are not persuaded by Ouber's objection to the landing platform suggested by the compliance officer.   Even if we agreed with his opinion that a slanted landing platform would have been more hazardous than the open gap, we nevertheless conclude that the platform would have been less hazardous than the cited conditions because of the protection that the guardrails on the platform would have provided.   Similarly, we conclude that Respondents have not established their assertion that a welded horizontal platform would have created a greater hazard. n7 The opinion testimony of Ouber and of Industrial's vice-president as to the hazards that welding would create must be deemed speculative and unsupported.   In particular, there is no explanation of the [*18]   suggested explosion hazard or the asserted hazard to employees engaged in welding. Finally, we note that Respondent's only objection to the moveable ladder was that employees would be unable to get down from the scaffold when the ladder was removed.   Yet there is no reason apparent in the record why the ladder could not have been placed back into position whenever it was needed to provide the necessary means of egress.   For the reasons stated, Respondents have failed to meet their burden of proving any of their affirmative defenses.   Commissioner Cottine and I affirm the Judge's conclusion that Respondents violated the Act by failing to comply with 29 C.F.R. §   1926.451(a)(13).

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n7 We note that there was no testimony that it would have been necessary to weld the slanted platform suggested by the compliance officer.

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II

A

The compliance officer testified that during his inspection he observed two of Wiese's employees working near the unguarded edge of a tube-and-coupler scaffold 60 feet above the ground.   Neither employee [*19]   was wearing a safety belt. Welch photographed the men, asked a supervisor to call them down, and then asked the employees whether they had safety belts. One of them stated that they did not.   On this basis, the citation alleging noncompliance with 29 C.F.R. §   1926.28(a) was issued to Wiese.   The citation further alleged that the violation was repeated.

One of the employees, William Earl Linder, testified that on the day of the inspection he and his co-worker had removed their safety belts after descending from the scaffold to get more building materials.   On their return to the scaffold area, the belts were missing.   Linder testified that they then located their forman, Hall, and informed him of their lack of safety belts. In response, Hall requested belts from the Dow warehouse, but none was available.   According to Linder, Hall then told the employees to continue their work and informed them that he would provide them with belts when belts became available at the warehouse.   The employees therefore returned to the scaffold, where they were engaged in erecting guardrails when the compliance officer observed them.   Linder further testified that he obeyed his supervisor because [*20]   he thought be could do not work safely without a safety belt and also because disobedience to a supervisor was cause for dismissal.   Hall, the foreman, did not testify.

In response to this showing by the Secretary, Wiese introduced extensive evidence as to its efforts to ensure the use of safety belts during the Naptha Unit construction project.   At the time of the inspection J. A. Oliver was Wiese's general superintendent in charge of the construction work on the project.   Both he and assistant superintendent Ouber, who has the safety officer for the job, testified that Wiese had an established policy concerning the use of safety belts on the project.   According to Oliver, Wiese required any employee who had to work in a hazardous position to wear a safety belt. Moreover, Wiese's policy was communicated to employees; for example, through weekly meetings that everyone, including supervisors, was required to attend.   At these safety meetings Ouber conducted safety talks, including lectures on the use of safety belts, and this subject was frequently discussed.

In addition, recurring safety inspections or "job site visits" were conducted by Herman Thompson, Wiese's manager of safety [*21]   and security, with overall responsibility for safety matters in all work performed by either Wiese's construction division or its maintenance division, and Ouber.   Thompson's reports of these inspections, which apparently occurred approximately twice a month, show that he and Ouber consistently made a determination as to whether employees were using safety belts. Furthermore, when the inspectors observed employees without safety belts, the foremen were notified and instructions to use safety belts were issued.   Indeed, Ouber testified that, whenever an employee was discovered without a safety belt when a belt was required, the employee was to be reprimanded and, if necessary, fired.   Though the record does not indicate whether any employee had been terminated for failure to comply with the safety belt policy, Wiese did produce evidence that it issued reprimands to employees observed in violation of that policy.   In addition, several termination slips introduced into evidence by Wiese show that employees were discharged for failure to comply with safety rules and failure to use required safety equipment other than safety belts.

Ouber further testified as to the standard procedure [*22]   for obtaining safety belts, which were furnished by Wiese.   An employee who needed a safety belt would go to his foreman, who would then go to the Dow warehouse and check out a belt. If there were no belts at the warehouse, the foreman was expected to search for belts and borrow them from workers who weren't using their belts.

Wiese's evidence, as set forth above, was corroborated by the testimony of employee Linder.   Thus, Linder testified that he had been instructed specifically to wear and use a safety belt when working on a scaffold. In addition, he had been told that he would be fired if he was caught working on a scaffold without a safety belt. Linder stated that, so far as he knew, Wiese had enforced its safety rules.   He further testified that he had attended the weekly safety meetings and that safety belts had been discussed at almost every meeting.

The Secretary did not attempt to rebut Wiese's evidence on its safety program.   Nor did he seek to establish what further efforts Wiese could have made to prevent the incident that led to the citation.

B

The judge affirmed the citation's allegation of noncompliance with section 1926.28(a) as a serious but not repeated violation [*23]   of the Act.   He credited all of Linder's testimony, including specifically Linder's testimony that he and his co-worker were ordered by their foreman to return to their work station without safety belts. The judge concluded that Wiese was responsible for its foreman's order even though the order contravened Wiese's policy.   The judge found that Wiese failed to show that its foreman was adequately instructed about his duty to require his crew to use protective equipment.   He refused to find, as Wiese argued, that the behavior of either the foreman or the two employees was unpreventable employee misconduct excusing Wiese from its concompliance with the standard in this instance.   Nevertheless, despite his holdings, the judge repeatedly referred to Wiese throughout his decision as a "safety minded employer."

On review, Wiese advances three arguments for reversal.   First, Wiese claims the evidence, particularly Linder's testimony, was unpersuasive and insufficient to establish a violation.   Second, it suggests that the conduct of the employees in following Hall's asserted order was unpreventable misconduct, because the employees knew they could be fired for working without tied-off   [*24]   safety belts. In addition, Wiese argues that, if Hall did order the employees to work without protection, the order is not imputable to Wiese.

The Secretary generally endorses the judge's findings and conclusions on this citation.   In urging the Commission to reject Wiese's contention that Hall's misconduct was unpreventable, the Secretary cites only the judge's finding that the record does not establish that Hall received proper training and the absence of evidence that either Hall or the employees involved were disciplined as a result of the incident in question.

C

Chairman Rowland and I defer to the judge's decision to credit the testimony of employee Linder as to the events surrounding Wiese's alleged noncompliance with section 1926.28(a).   Accordingly, we agree with the judge that the failure of the employees to wear safety belts cannot be deemed unpreventable employee misconduct because they were acting pursuant to their supervisor's instructions.   However, we conclude that the judge erred in his determination that Wiese was responsible for the order issued by its foreman even though that order contravened Wiese's policy.

In order to establish a violation of section 5(a)(2)   [*25]   of the Act, the Secretary must prove, among other things, that the cited employer either knew or could, with the exercise of reasonable diligence, have known of the presence of the violative conditions.   Daniel International Corp., Wansley Project, 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD P25,813 (No. 76-181, 1981).   Generally, the actions and knowledge of supervisory employees are imputed to the employer and the employer is responsible for violations committed by their supervisors. Accordingly, the Secretary establishes a prima facie showing of knowledge by proving, as he did in this case, that a supervisory employee was responsible for the violation.   See United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 1981 CCH OSHD P25,579 (No. 78-6265, 1981), appeal filed, No. 81-4342 (5th Cir. Aug. 26, 1981).   However, the employer can rebut this showing by affirmatively demonstrating that the supervisory employee's misconduct could not have been prevented.   United Geophysical Corp., supra; Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978).   In particular, the employer must establish [*26]   that it effectively communicated work rules to employees and that its rules were effectively enforced through supervision adequate to detect failures to comply with rules and discipline sufficient to discourage such violations.   Id.

We conclude that Wiese has rebutted the Secretary's prima facie showing of knowledge in the case now before us.   Wiese established a work rule on the use of safety belts, repeatedly communicated that work rule, and enforced the rule through supervision and disciplinary measures.   The Secretary's challenges to Wiese's showing are not persuasive.   Wiese's unrebutted evidence concerning the communication of its work rule to all employees, including supervisors, is sufficient to establish that Hall received the same training afforded all employees.   Moreover, the fact that Hall and the two employees involved in the incident at issue were not discharged does not compel a finding that Wiese failed to enforce its work rule, particularly in the face of overwhelming evidence to the contrary.   For the reasons stated, Chairman Rowland and I conclude that the Secretary failed to sustain his burden of proving a violation of section 5(a)(2) of the Act and we therefore [*27]   vacate the citation alleging noncompliance with 29 C.F.R. §   1926.28(a).

III

Accordingly, that part of the judge's decision and order finding Wiese in serious violation of the Act for noncompliance with 29 C.F.R. §   1926.28(a) is reversed and the citation is vacated.   The Commission affirms the portions of the judge's decision and order finding Wiese and Industrial in serious violation of the Act for noncompliance with 29 C.F.R. §   1926.451(a)(13) and assessing penalties of $225 against Wiese and Industrial for this violation.

SO ORDERED.  

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I join in the Commission's order affirming the citations for serious violation of the Act based on the failure of Wiese and Industrial to comply with 29 C.F.R. §   1926.451(a)(13) and vacating the citation issued to Wiese alleging a serious violation of 29 C.F.R. §   1926.28(a).   However, further explanation of these holdings is necessary.

I

With respect to the section 1926.451(a)(13) allegations, there are several significant areas of disagreement between the majority position as stated in Part I of the lead opinion and the dissenting opinion.   In particular, the majority opinion and the dissenting opinion [*28]   sharply diverge regarding the proper interpretation of the cited standard, the correct allocation of burdens of proof between the Secretary and the Respondents, and the determination of whether the judge's findings are supported by the preponderance of the record evidence.   While I join Commissioner Cleary in entering the findings and conclusions of Part I of the lead opinion, I find it necessary to set forth more fully the basis of those findings and conclusions and the reasons for rejecting the contrary views expressed in the dissenting opinion.

The dissent characterizes section 1926.451(a)(13) as a standard "which impose[s] broad requirements on employers simply to protect against 'hazards'." In concludes that the standard is unenforceably vague unless it is "defined and limited by objective criteria sufficient to apprise an employer of his obligations" under the standard.   In addition, the dissent concludes that, in the absence of this objective criteria, it is appropriate to impose on the Secretary the same burden of proof he has under the "general duty clause," i.e., section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1), specifically, the burden of proving the feasibility and [*29]   likely utility of a means of abating the hazard at issue.

The lead opinion concludes that the standard is not unenforceably vague.   Commissioner Cleary and I do not go beyond the confines of the express terms of the standard in search of "objective criteria" to define and limit the employer's obligation, as our dissenting colleague does.   In addition, we place on Respondents the burden of proving an affirmative defense such as impossibility or the greater hazard defense rather than placing on the Secretary the burden of proving that a safer means of access could have been utilized.

The dissent's analysis errs in characterizing 29 C.F.R. §   1926.451(a)(13) as a standard "which impose[s] broad requirements on employers simply to protect against 'hazards'." The standard at issue is clearly directed to a specific and distinct hazard, the danger of falling while ascending to or descending from a scaffold. Moreover, the standard specifically identifies the primary means of abating this hazard, i.e., "[a]n access ladder." The fact that the standard provides flexibility to employers by allowing them to use alternative means of access does not in any way change this clear and specific [*30]   standard into a broad, general or potentially vague standard.   On the contrary, the standard itself provides "objective criteria sufficient to apprise an employer of his obligations" under the standard.   Thus, an alternative means of access is permissible under the standard if it provides "equivalent safe access," i.e., it is equivalent in terms of safety to the protection that would be provided by using an access ladder.

Accordingly, the dissent errs in concluding that it is appropriate to impose on the Secretary the same burden of proof he has under "the general duty clause." Because this case arises under section 5(a)(2) of the Act rather than section 5(a)(1), the Secretary does not have the burden of proving the feasibility and likely utility of compliance with the cited standard.   Instead, Respondents have the burden of proving an affirmative defense such as impossibility or the greater hazard defense.   See, e.g., Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD P25,431 (No. 77-2778, 1981), appeal filed, No. 81-7493 (9th Cir. July 27, 1981).   See also A.E. Gurgress Leather Co. v. OSHRC & Secretary of Labor,   [*31]   576 F.2d 948 (1st Cir. 1978).

Because the standard itself provides clear guidance, I also reject the dissent's conclusion that it is necessary to look beyond the terms of section 1926.451(a)(13) to the requirements of other standards in order to determine whether an employer has emplied with its obligation under the cited standard.   In particular, the dissent erroneously states that "Commission precedent acknowledges that an employer is not in violation of §   1926.451(a)(13) unless the record demonstrates that it has failed to comply with other provisions of subpart L." Two cases are cited for this proposition: Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977), and Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977).   However, neither case stands for the cited proposition.   Perini Corp. is clearly inapposite because the standard at issue in that case, 29 C.F.R. §   1926.451(e)(5), permits the employer to choose between only two specified means of access -- ladders or stairways.   Accordingly, the issue in that case was whether the employer had provided a "ladder," not whether it had provided [*32]   "equivalent safe access." Moreover, in Rust Engineering, the Commission held only that it was "appropriate" for the judge, under the circumstances of that case, to refer to the specification standards for metal ladders in determining whether the end frame of a scaffold provided equivalent safe access because the specification standards "establishe[d] a basis for determining at least approximate equivalence." 5 BNA OSHC at 1184, 1977-78 CCH OSHD at p. 26,049. The Commission's decision neither expressly nor implicitly holds that a violation of section 1926.451(a)(13) cannot be sustained in the absence of noncompliance with a ladder specification standard.   On the contrary, the decision clearly indicates that the ultimate test for determining whether equivalent safe access has been provided is the test that Commissioner Cleary and I have applied in the cases now before us, i.e., whether the alternative means of access provides the employees access "as safe as that provided by a properly constructed ladder" or "the same protection as an employee using a ladder." Id.

In Rust Engineering, it was "appropriate" to refer to the specification standards for metal ladders because [*33]   the means of access provided, the scaffold end frame, was structurally similar to a metal ladder. In the cases now before us, however, the means of access provided -- climbing a ladder, crossing an open horizontal gap, and then climbing up the side of a crane trolley -- is not structurally comparable to a ladder. Accordingly, reference to the ladder specification standards is inappropriate in these cases.   Nevertheless, even if the test adopted by the dissent is applied, it cannot be concluded that "all the technical requirements of the ladder standard have been met." Thus, if the means of access provided by Respondents is compared to a ladder, the segment of the access route between the sheet metal girder and the I-beam is comparable to a ladder placed in a horizontal position with a 24-inch separation between rungs.   Such a ladder would fail to comply with at least two specific requirements of Subpart L.   First, it would not comply with the incorporated provisions on the spacing of rungs.   See Perini Corp., supra; Rust Engineering Co., supra. Second, it would be contrary to the requirements of 29 C.F.R. §   1926.450(a)(7), which states, in pertinent part:

(7)   [*34]   . . . . Ladders shall not be used in a horizontal position as platforms, runways, or scaffolds.

Because it is clear that a ladder with a 2-foot-wide opening on a horizontal plane would not comply with the specifications of subpart L, the Secretary has established noncompliance with the cited standard even under the dissent's erroneous interpretation of the standard.

One further matter requires elaboration.   The standard's alternative requirement of "equivalent safe access" makes it necessary to consider whether the means of access provided was safe. In his decision below, Judge Oringer expressly found that employees were exposed to a falling hazard during the course of their access to the scaffold. The dissent analyzes the record evidence and concludes that the Secretary failed to prove the existence of this hazard by a preponderance of the evidence.   Although the lead opinion implicitly adopts the judge's finding, it does not set forth the basis for this holding.   Accordingly, the record must be reviewed to determine whether the judge's finding is supported by the preponderance of the evidence.   E.g., Astra Pharmaceutical Products, Inc., 31 OSAHRC 79/D9, 9 BNA OSHC 2126,   [*35]   1981 CCH OSHD P25,578 (No. 78-6247, 1981), appeal filed, No. 81-1672 (1st Cir. Sept. 23, 1981).

The judge based his finding on the opinion testimony of the compliance officer who asserted that employees stepping across the 2-foot-wide gap were exposed to the hazard of falling either 20 or 42 feet. In addition, the Secretary offered the testimony of Edward Tannehill, a millwright who had worked from the scaffold under Wiese's direction.   Tannehill confirmed the compliance officer's testimony that Tannehill, in his capacity as millwright steward, had initiated the investigation of the access to the scaffold by making an oral complaint during the inspection that the means of access was unsafe.   The evidence that could be viewed as contradicting the Secretary's evidence consists of the opinion testimony of three witnesses for Respondents: assistant superintendent Ouber; John Thigpen, Industrial's vice president; and Herman Thompson, Wiese's manager of safety and security.   Thigpen expressed his opinion that the means of access provided by Respondents was safe because an employee could hold on to "the crane" while stepping onto the I-beam and the beam provided "a good foot place,   [*36]   a good place to step." Outer and Thompson both testified in effect that the means of access provided was, in their view, the safest possible means under the circumstances.

The Respondents' evidence does not effectively rebut the Secretary's prima facie showing that the 2-foot gap was hazardous. I am not persuaded by Thigpen's opinion that the presence of something to hold on to and a solid surface to step onto eliminated the hazard involved in stepping from a 6-inch-wide sheet girder over a 2-foot-wide opening that was 20 feet above the nearest floor.   Specifically, Thigpen had never used the means of access in question and Respondents introduced no evidence that Thigpen had any expertise in the field of safety.   Moreover, the testimony of Ouber and Thompson does not go to the question of whether the 2-foot gap presented a hazard but rather to the question of whether other possible methods of access would have been even more hazardous. Indeed, when Thompson was directly asked for his opinion as to whether the means of access provided was "safe," his only response was that "I checked it out and I couldn't see any other way that it [the ladder] could be put without having to move [*37]   it everytime those cranes would move back and forth." Accordingly, the judge's finding is supported by the preponderance of the evidence and I expressly affirm that finding.

For the reasons set forth in Part I of the lead opinion, as necessarily amplified by this separate opinion, I affirm the judge's conclusion that Wiese and Industrial failed to comply with section 1926.451(a)(13).

II

With respect to the allegation that Wiese was in serious violation of the Act based on noncompliance with section 1926.28(a), I agree with the majority's decision to affirm the judge's credibility determination and his rejection of Wiese's unpreventable employee misconduct defense to the extent it was based on the asserted misconduct of Linder and his co-worker.   However, I conclude that the judge erred in failing to sustain Wiese's unpreventable employee misconduct defense based on the misconduct of foreman Hall and, accordingly, I join in the Commission's order vacating the section 1926.28(a) citation.

An employer is responsible for a violation committed by its supervisory employee, i.e., the employee's actions and knowledge are imputed to the employer, unless the employer demonstrates that [*38]   the supervisor himself was adequately supervised regarding safety matters.   E.g., United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 1981 CCH OSHD P25,579 (No. 78-6265, 1981), appeal filed, No. 81-4342 (5th Cir. Aug. 26, 1981); Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978); Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978).   In order to establish this affirmative defense, the employer must prove that it effectively communicated work rules to employees and that its rules were effectively enforced, that is, it provided supervision adequate to detect noncompliance with the rules and discipline sufficient to discourage such noncompliance. Id. I conclude that Wiese has sustained its defense in this case for the reasons discussed in the lead opinion with respect to the communication and enforcement of Wiese's work rule.  

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, Dissenting in Part:

For the reasons stated by Commissioner Cleary in part II C of the lead opinion, n8 I join in reversing the judge's decision and vacating the citation alleging [*39]   the Respondent Wiese failed to comply with 29 C.F.R. §   1926.28(a).   For the reasons that follow, I conclude that the judge also erred in finding that Respondents Wiese and Industrial failed to comply with 29 C.F.R. §   1926.451(a)(13), and therefore I dissent from the remainder of the majority opinion.

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n8 As Commissioner Cleary correctly notes, under Commission precedent an employer may rebut the Secretary's showing of knowledge based on the imputation of the actions of a supervisory employee by demonstrating that it both communicated and enforced a work rule pertaining to the conduct in issue.   Since Wiese satisfied its burden under Commission precedent, I do not find it necessary to consider at this time whether that precedent is correct insofar as it would impose on the employer a duty to enforce as well as to communicate work rules to employees.   For a discussion of the question whether an employer should be required to do anything more than give instructions to employees regarding the proper use of safety equipment, see General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976); Borton, Inc., No. 77-2115 (March 31, 1982) (dissenting opinion).

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In concluding that Respondents failed to comply with §   1926.451(a)(13) the majority reasons that the existence of a fall hazard between the ladder and the point of access onto the crane scaffold is sufficient to show that access equivalent in safety to that which a ladder would have provided was not maintained.   I disagree with this reasoning since I cannot identify objective facts which would give Respondents notice that the existing means of access was unsafe.

As the majority notes, standards which impose broad requirements on employers simply to protect against "hazards" are vague unless defined and limited by objective criteria sufficient to apprise an employer of his obligations under such standards.   E.g., Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974); Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981) (29 C.F.R. §   1910.132(a) n9); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3d Cir. 1980) (29 C.F.R.   [*41]   s 1926.28(a) n10).   Under Commission precedent, the particular specifications set forth in subpart L for ladders n11 have been used to interpret the requirement of §   1926.451(a)(13) that a ladder or "equivalent safe access" be provided.   Indeed, Commission precedent acknowledges that an employer is not in violation of §   1926.451(a)(13) unless the record demonstrates that it has failed to comply with other provisions of subpart L.   See Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977) (interpreting §   1926.451(e)(5), an analogous standard, and concluding that the employer had failed to provide a ladder under §   1926.451(e)(5) because the spacing of the rungs on the scaffold endframes did not satisfy the requirements for ladders set forth in subpart L) and Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977) (holding the term "equivalent" as used in the standard at issue in this case means "virtually or in effect identical to a ladder"). n12

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n9 This standard requires as follows:

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.

n10 This standard requires that the employer be "responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions . . . ."

n11 Subpart L, entitled "Ladders and Scaffolding," includes sections 1926.450 (ladder) and 451 (scaffolding).   Section 1926.450, in addition to the general requirement at §   1926.450(a)(1), includes a number of specifications for fixed ladders and manufactured and job-made portable ladders. The specifications govern such matters as the length, width, and pitch of ladders and the materials for the construction of side rails and rungs.

n12 Steel Erectors, Inc., 81 OSAHRC 18/F1, 9 BNA OSHC 1399, 1981 CCH OSHD P25,228 (No. 77-1118, 1981), on which the majority relies, is incorrectly decided and should not be followed insofar as it holds that the question whether access is equivalent in safety to that of a ladder does not require consideration of the specifications prescribed for ladders.

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In this case the Secretary presented no evidence or argument that the method of access provided by Respondents was contrary to any particular specification prescribed in subpart L such as §   1926.450(a)(10), which requires that portable ladders be "tied, blocked, or otherwise secured to prevent their being displaced," or §   1926.450(a)(9), which provides, "[t]he side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed." On the other hand, Respondents adduced evidence showing compliance with those specifications. On cross-examination, Welch, the compliance officer, conceded that the ladder was fully secured both to the compressor deck and to the girder above.   Thigpen, Industrial's vice-president, testified that the top of the ladder was two to three feet higher than the beam and stated that an employee could hold onto the crane structure while moving across the open space.   Accordingly, a preponderance of the evidence does not establish that the means [*43]   of access violated any requirement of subpart L of the Secretary's standards.   Indeed, I note that the majority concedes that the cited standard does not require that the access ladder extend all the way to the scaffold. See Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976) (citation alleging violation of §   1926.450(a)(1) in that horizontal rebar protruded through the rungs of a ladder vacated since no provision of that standard prohibits the use of ladders over horizontal rebar).   Since it is apparent that all the technical requirements of the ladder standard have been met, the cited access can only be found unsafe, and thus not in compliance with the standard, if other objective facts exist which apprise the employer that the means of access provided is hazardous.

The majority finds the "access route" unsafe solely on the opinion of the compliance officer that a fall hazard existed.   Commissioner Cottine would also credit similar opinion testimony of one employee.   On the other hand, Thigpen, Industrial's vice-president, who had worked for Industrial for seven years, considered the ladder to be safe. He stated that an   [*44]   employee would hold onto the crane rail while stepping onto the beam, and in describing the beam he said, "[i]t is a good foot place, a good place to step on the bottom and on the top and then the crane was immediately above that." He further testified that no one had ever fallen from the ladder, that he had never observed anyone coming close to falling, and that Industrial's electricial employees had never made any complaints about the ladder. Thompson, Wiese's safety manager, who, as the majority notes, implements Wiese's safety program, stated that the ladder was the safest means of access available in the circumstances.   Similar testimony was given by Ouber, Wiese's assistant superintendent, who not only had 25 years experience in the construction industry but for at least two years had been concerned with safety matters at the worksite where the crane was located.   As the statement of Ouber's testimony in the majority opinion itself indicates, Ouber had considerable first-hand experience with the matter of providing access to the crane in question.   The compliance officer's opinion on which the majority relies as well as the opinion of one employee is not sufficient to prove   [*45]   the existence of a hazard by a preponderance of the evidence in view of the contrary testimony of Respondents' experienced witnesses that they considered the access safe and the absence of any other evidence to show that Respondents should have had notice that a fall hazard existed.   See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981); Owens-Corning Fiberglas, supra; Air-Kare Corp., 81 OSAHRC    , 10 BNA OSHC 1146, 1981 CCH OSHD P25,758 (No. 77-1133, 1981) (dissenting opinion).

The majority also errs, as did the Judge, in accepting as dispositive the compliance officer's testimony that safe access could have been provided through the alternative of installing a sloped platform across the open space.   The compliance officer based this opinion on one of the photographs he had taken and on a sketch he made at the hearing of the crane and compressor area.   The record does not indicate that the compliance officer actually examined the structure where he believed a platform could be placed nor did he testify that he had any knowledge of the method of access he described having been used by any other employer in a similar situation.   Furthermore,   [*46]   the Secretary did not establish that the compliance officer had any prior experience with overhead bridge cranes and in particular with the means of access thereto. n13

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n13 The compliance officer's experience is described in general terms as eight years' safety experience, three as a compliance officer and five as a consultant and engineer for companies involved in construction work.

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Because the compliance officer's testimony is not based on personal knowledge or experience with the means of access he described, his opinion that a sloped platform could be used is merely an abstract suggestion of a possible abatement method.   Absent a supporting factual foundation, n14 his opinion is theoretical and speculative and as such is not entitled to controlling weight.   See Ray Evers Welding Co. v. OSHRC; 625 F.2d 726, 733 (6th Cir. 1980); Air-Kare, supra (dissenting opinion).

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n14 The majority observes that Wiese's assistant superintendent Ouber conceded that a platform could be installed.   Ouber did not, however, concede that such a platform could have been used to correct the hazardous condition existing on the worksite at issue in this case.   In response to a question from the Secretary's counsel on cross-examination as to whether a platform as described by the compliance officer would have been "possibie," Ouber stated that while possible, such a platform would not have been level.   At another point in his testimony, he specifically stated that he had concluded that a sloped platform could not be used because its slope would create a greater hazard of a fall than the existing ladder. Similarly, while Ouber indicated that a platform could physically be installed in such a manner as to be level, he stated that the welding necessary for a level platform would itself create other hazards. See the discussion infra. The entirety of his testimony, therefore, demonstrates that a platform could not have been used as a means of access under the circumstances in question.

  [*47]  

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Even assuming that a sloped platform as described by the compliance officer could physically have been installed, the testimony of Respondents' witness not only establishes that this method would not have been practical because of its slope but also shows that there was no other practical means of providing access to the scaffold. n15

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n15 The majority errs in discussing Respondents' evidence in terms of the impossibility and greater hazards defenses.   As discussed above, the majority interprets the standard to require a "safe" means of access without regard to the ladder specifications set forth in other standards as a guide to the employer in determining what constitutes "safe" access.   Since the standard as interpreted by the majority does not on its face prescribe objective criteria for measuring the scope of the employer's duty, the same burden of proof should be imposed on the Secretary as he has under the so-called "general duty clause" of the Act, 29 U.S.C. §   654(a)(1), which requires that the employer maintain a workplace free from "recognized" hazards. That is, the Secretary must demonstrate what steps Respondents could have taken to improve the safety of the scaffold access and specifically must show the feasibility and utility of another method of access.   Evidence adduced by Respondents showing that means of providing access other than the method they had selected would have adverse consequences is relevant as rebuttal to the Secretary's case-in-chief as opposed to a separate affirmative defense.   See Royal Logging Co., 79 OSAHRC 84/A2, pp. 19-20, 7 BNA OSHC 1744, 1751, 1979 CCH OSHD P23,914 at pp. 28,997-98 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981).

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In dismissing as unpersuasive Ouber's opinion that because of its slope use of a platform would increase the hazard to employees, the majority concludes that the platform would be safer than the access provided by Respondents if the platform were equipped with guardrails.   However, there is no evidence to support this conclusion.   Although Welch stated that a platform with guardrails would provide safe footing, it is not clear from his testimony whether in reaching this opinion he took into consideration the fact that a platform secured as he described would necessarily be slanted.   Furthermore, Ouber's opinion that a sloped platform would be hazardous is reasonable in view of the magnitude of the slope involved. n16 Finally, Thigpen's testimony, as indicated above, demonstrates that in any event the existing means of access was also sufficient to provide safe footing for employees.

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n16 It is undisputed that the platform described by Welch would have to be inclined a vertical distance of 12 inches over a horizontal distance of 24 inches, a ratio of 1 to 2.   The Secretary's fall protection standard for sloped roofs, 29 C.F.R. §   1926.451(u)(3), applies to roofs sloped in excess of 4 inches in 12 inches, a ratio of 1 to 3.   Accordingly, the Secretary considers slopes which are less than the slope involved in this case to present a falling hazard. See Hamilton Roofing Co., 78 OSAHRC 57/C1, pp. 7-8, 7 BNA OSHC 1771, 1773, 1978 CCH OSHD P22,856 at p. 27,642 (No. 14968, 1978).

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Similarly, the majority errs in dismissing Respondents' objections to a welded level platform and use of a removable ladder as speculative and unsupported by the record.   Ouber's opinion that welding would not be practical because it would create an explosion hazard and would interfere with the structure of the building and weaken the crane to the point of possible collapse is unrebutted.   In view of Ouber's extensive experience on the worksite and with the crane in question, his opinion is reasonable and entitled to weight.   His judgment that a removable ladder also would not be feasible because an employee could be deprived of a means of descent when needed including an emergency situation also is both reasonable and undisputed.   While the majority discredits this opinion on the ground that there is no evidence to show that the ladder could not have been replaced whenever a means of descent was needed, Respondents do not have any burden to present such evidence.   Rather, as explained above n17 the burden is on the Secretary to show that a feasible means of providing safe access was available.   Since [*50]   the Secretary adduced no evidence to rebut Ouber's opinion that a removable ladder would not have been practical, he has not satisfied his burden of proof.

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n17 See footnote 15, supra.

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Since the record fails to show that the means of access provided by Respondents was unsafe according to any objective criteria and since the Secretary in any event failed to prove that any safer means of access could feasibly have been used, n18 the citations alleging failure to comply with 29 C.F.R. §   1926.451(a)(13) should be vacated.

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n18 I do not agree with the majority's conclusion, stated in footnote 6, that the judge did not base his finding of a violation on the fact that a different means of access, as described by Ouber, was used after the citations were issued.   In discussing the evidence, the judge stated, "Mr. Welch's testimony anent [sic] abatement was logical.   A landing platform could have been built and braced between the sheet girder and the lower flange on the crane rail.   Feasible means were utilized by the respondent to cure this hazard after the inspection." In his enumerated factual findings, the judge reiterated both compliance officer Welch's opinion testimony and the testimony of an employee describing the means of access used after the inspection. While the judge obviously did not consider Respondents' post-inspection conduct to be dispositive, he clearly relied on it.   Indeed, his decision indicates that he considered this evidence to be corroborative of the compliance officer's opinion that a different means of access could have been provided.   Since, as the majority notes, there is no dispute that the means of access used subsequently could not have been applied prior to the inspection because it would have prevented the necessary movement of the crane, the judge erred in according any weight to Respondents' post-inspection conduct.

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