SECRETARY OF LABOR,

Complainant,

v.

L.M. SESSLER EXCAVATING & WRECKING, INC.,
Respondent.

OSHRC Docket No. 79-2168

DECISION

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

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary of Labor issued a citation alleging that L.M. Sessler Excavating & Wrecking, Inc. ("Sessler") violated the construction safety and health standard at 29 C.F.R. 1926.28(a) because a Sessler employee was not wearing a safety belt while exposed to a fall hazard.  The standard states in part that "[t]he employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions . . . ." Administrative Law Judge Worcester vacated the citation on the ground that there was insufficient evidence that the employer knew or with the exercise of reasonable diligence could have known that the employee was not wearing his belt.  For the reasons that follow, the judge's decision is affirmed.

A Sessler employee, Mr. Gibson, was working on the eighth floor of a building that was undergoing dismantling and demolition. Mr. Gibson's duties included cutting steel beams, which were then removed by a crane.  During the cutting of one beam, Mr. Gibson stood on a ladder next to an open elevator shaft.  According to a statement hand-written by the compliance officer and signed by Mr. McCann, the foreman on the eighth floor, Mr. McCann had been watching Mr. Gibson but was distracted and looked away.  He then heard the beam "snap loose" and turned to see Mr. Gibson falling backwards into the shaft.  Mr. Gibson died from the fall.  The president of the company, Mr. Sessler, testified that when he found Mr. Gibson's body at the bottom of the shaft, he saw that Mr. Gibson had not been wearing a safety belt.

One of the primary disputes at the hearing was whether Sessler knew or with the exercise of reasonable diligence could have known that Mr. Gibson had not been wearing his belt.  Mr. Sessler had issued safety belts to all employees, had ordered Mr. Gibson to wear his belt, and had warned an employee that he would be laid off if he failed to wear his belt.  On the day the violation allegedly occurred, Mr. Sessler had checked on the employees' safety belts and the length of their lifelines.  Mr. Sessler also testified that on the day of Mr. Gibson's fall he had seen Mr. Gibson wearing his safety belt and did not know when or why Mr. Gibson had removed it.

The Secretary did not call Mr. Gibson's foreman, Mr. McCann, as a witness, even though he was available to testify.  Instead, he submitted the foreman's unsworn, written statement and asked the compliance officer questions about what he had learned while talking to Mr. McCann.  Neither the foreman's statement nor the compliance officer's account of his conversation with Mr. McCann
indicates when Mr. Gibson removed his belt, whether Mr. McCann was aware before the accident that Mr. Gibson was no longer wearing one, whether Mr. McCann was in a position to see that Mr. Gibson had removed his belt, or whether Mr. McCann had failed to check whether Mr. Gibson was wearing his belt.  The statement simply noted:  "The elevator shaft was not covered over and Mr. Gibson wasn't wearing a safety belt."

Judge Worcester vacated the citation on the ground that the evidence of knowledge on Sessler's part was insufficient.  The judge noted in particular that the written statement signed by the foreman is silent on whether the foreman knew before the accident that Mr. Gibson had removed his belt.

On review, the Secretary argues that the judge's approach to and evaluation of the evidence was erroneous.  He urges that we interpret the foreman's written statement differently than the judge did and find that the written statement shows that the foreman knew that Mr. Gibson was not wearing his safety belt.  He also argues that foreman McCann knew that Mr. Gibson "habitually did not wear a safety belt . . . and disregarded instructions to wear a belt."  Finally, the Secretary maintains that the wearing of safety belts would have been feasible.

We concur in Judge Worcester's conclusion that the evidence of knowledge was insufficient.  Commission precedent requires the Secretary to prove as part of his case-in-chief that an employer knew or with the exercise of reasonable diligence could have known of a violative condition.  See Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD 25,358, p. 31,500 (No. 16147, 1981).  As to actual knowledge, there is no evidence that Mr. Sessler, the president of the company, knew that Mr. Gibson was not wearing his belt.  Nor was Mr. McCann, the foreman who was working on the eighth floor when the accident occurred, shown to have known prior to the accident that Mr. Gibson was not wearing his belt.  The Secretary introduced no evidence to show when the safety belt was removed or even that the foreman was in a position to see that Mr. Gibson had removed his belt.  As Judge Worcester noted, the foreman's written statement is silent on that point, and the Secretary never called the foreman to testify, though he could have done so.  To find actual knowledge would therefore require us to speculate from the foreman's written statement which, as the judge noted, leaves much to be desired in the way of clarity and completeness.

We also find insufficient evidence that Sessler could have known, with the exercise of reasonable diligence, that Mr. Gibson was not wearing his safety belt.  Mr. Sessler had issued safety belts to the employees and had warned them that they would not be permitted to work if they did not wear the belts.  Mr. Sessler had checked that day that the belts were being worn and that the lanyards were the correct length, and found that Mr. Gibson was wearing his belt.  The burden was on the Secretary to establish by a preponderance of the evidence that reasonable diligence was not exercised.  Inasmuch as there is no evidence of when Mr. Gibson removed his belt or that Mr. McCann, the foreman, failed to check whether Mr. Gibson was wearing his belt, the record does not support a finding that the foreman could reasonably have known that Mr. Gibson had removed his belt.  For the foregoing reasons, we find insufficient evidence that the employer could have known of Mr. Gibson's behavior through the exercise of reasonable diligence.

Accordingly, the judge's decision vacating citation 2 is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUN 19 1984

ROWLAND, Chairman, concurring:

I agree that the citation should be vacated because the record does not show by a preponderance of the evidence that Sessler knew or with the exercise of reasonable diligence could have known that Mr. Gibson had removed his belt.

I would vacate the citation for an additional reason, however.  Contrary to the Secretary's argument, the record does not show the feasibility of safety belts.  Inasmuch as section 1926.28(a) does not prescribe objective criteria for determining an employer's duty, the Secretary must show that the use of safety belts was feasible.  See Prestressed Systems, Inc., 82 OSAHRC 34/C7, 10 BNA OSHC 1816, 1982 CCH OSHD 26,124 (No. 76-4278, 1982)(Rowland, Chairman, dissenting), and cases cited; L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 513-4 (D.C. Cir. 1983); Voegele Co. v. OSHRC, 625 F.2d 1075, 1079-80 (3d Cir. 1980); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 733 (6th Cir. 1980); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 723-4 (4th Cir. 1979).  I note that although the Secretary stated to the judge that he would prove feasibility, he never introduced evidence on the point. [[1]]  The Secretary introduced no evidence of where a lanyard could have been attached while the building's beams were being dismantled, even though the question of where to attach a lanyard is one of the most common in safety belt cases and the usefulness of safety belts during the dismantling of steel beams may be open to doubt.  See Industrial Steel Erectors, 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD 17,136 (No. 703, 1974) (greater hazard from steel beams suddenly springing loose).  I therefore conclude that the citation must be vacated for lack of evidence that the use of safety belts would have been feasible.[[2]]

CLEARY, Commissioner, dissenting:

The preponderance of all the evidence in this record shows that this employer failed to require Gibson to use his safety belt.  The citation should therefore be affirmed.

Chairman Rowland would vacate this citation based on his own view that the Secretary must prove that safety belts are feasible and that he failed to do so in this case.  The Commission has several times considered whether this extra burden of proof need be imposed on the Secretary in every safety belt case brought under section 1926.28(a) and has concluded that it need not.  Instead, the Commission has allocated to the Secretary--the person most familiar with what equipment would be appropriate to abate a hazard--the burden of identifying the appropriate form of personal protective equipment.  The Commission concomitantly allocated to the employer--the person most familiar with the particular circumstances of the work--the burden of showing that the identified form of equipment could not have been used under the circumstances.  S&H Riggers & Erectors Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD 23,480 (No. 15855, 1979), rev'd on another ground, 659 F.2d 1273 (5th Cir. 1981).   This allocation has worked well.  It not only conforms the burdens of proof to the parties' respective abilities and incentives to produce evidence, but it also forestalls the possibility that the Secretary will be required to introduce such evidence even when feasibility is not seriously disputed by the employer.  Yet, in this case, one Commission member has voted to vacate this citation on that ground even though the employer never claimed that safety belts were not feasible.  Indeed, such a claim would be flatly inconsistent with Sessler's assertion that Gibson was required to wear his belt and foreman McCann's written statement that Gibson would be alive if he had worn his belt.  I would therefore let Commission precedent control this issue and focus on what the parties do dispute.

Both Chairman Rowland and Commissioner Buckley find that the judge correctly concluded that the Secretary had failed to show that Sessler had actual or constructive knowledge that Gibson was not wearing a safety belt.  I cannot agree.  The record clearly shows that foreman McCann had actual knowledge that Gibson was not wearing a belt.  First, the Secretary is correct in maintaining that the foreman's written statement does prove the point.  In his statement, the foreman described the course of events that led to Gibson's death.  He then described the physical circumstances as follows:  "The elevator shaft was not covered over and Gibson wasn't wearing a safety belt.  Some days he would wear the belt and other days he wouldn't . . . ." The statement's tenor, order of narration, and treatment of Gibson's failure to wear the belt as a known, background fact--as notorious as the lack of a cover on the elevator shaft--are inconsistent with any hypothesis that McCann learned of these facts after Gibson fell.

Second, there is ample evidence that McCann was close enough to tell whether Gibson was wearing his belt.  Safety belts are distinctive--particularly when tied off--and one can tell from a distance whether an employee 13 working with one. [[3]] This Commission has decided any number of cases in which distant observers could tell whether an employee was working without a safety belt.[[4]]  Here, foreman McCann looked directly at the employee, watched him work, and coordinated Gibson's dismantling activity with that of the crane operator.  That McCann was close enough to tell whether Gibson was wearing his belt is demonstrated by his written statement, which relates that Gibson "had put chokers around the beam," "hooked it to the crane load," "had cut one end of the beam loose," and "moved the ladder over . . . to cut the other end."  McCann was obviously observing Gibson working, and these are not the words of a person too far away to tell whether Gibson was wearing a safety belt.

In any event, there is sufficient evidence that McCann could have known of the violation with the exercise of reasonable diligence. It may be true that the president of the company did not fully appreciate Gibson's propensity to not wear a safety belt until after the accident.  There is, however, ample evidence that the foreman knew of Gibson's attitude and behavior.  The foreman's own written statement declares that "[s]ome days [Gibson] would wear the belt and other days he wouldn't.  I told him [at] different times to wear his belt and sometimes he would put it on and other times he wouldn't."  Inasmuch as the foreman was working in close proximity to an employee he knew had disdained the wearing of safety belts and knew that the employee was working right next to an open elevator shaft, reasonable diligence required him to take a look to see whether a safety belt was being worn.

Finally, an employer's duty to be reasonably diligent requires more than occasional checks on employees by the president of a company.  When an employer decides to protect his employees from fall hazards by relying on the wearing of safety belts, his supervisory employees must understand that they are to insist upon their use, by discipline if necessary.  A rule prescribed by upper management but left unenforced by foreman and lower-level supervisors is in a sense worse than no rule at all.   It conveys to employees the impression that OSHA standards are not to be taken seriously and that the supervisors believe that the hazard to which the employee is exposed does not truly warrant the use of protective equipment.  McCann's written statement shows that he indulged the deceased employee in his desire to choose the time to wear his belt.  That is not permitted by the Act.  See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1299, 1977-78 CCH OSHD 22,481, p. 27,100-27,101 (No. 14249, 1978).

I respectfully dissent.



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FOOTNOTES:

[[1]] The Secretary represented to Judge Worcester that he would do so in accordance with the view of former Commissioner Barnako that such evidence was necessary.   The Secretary cited Commissioner Barnako's concurring opinion in Jensen Constr. Co., 79 OSAHRC 49/D3, 7 BNA OSHD 1477, 1979 CCH OSHD 23,664 (No. 76-1538, 1979).

[[2]] The dissenting opinion relies on Sessler's general requirement that safety belts be worn and the foreman's statement that a safety belt would have prevented the fatality as indications that Sessler does not dispute the feasibility of belts.   Mr. Sessler's testimony does not establish that safety belts necessarily would have been feasible in all circumstances, nor did Mr. Sessler state that Mr. Gibson could have used a safety belt during the particular operation he was performing at the time of his fall.

The foreman's statement that use of a safety belt would have prevented Mr. Gibson's fall assumes but also does not establish that Mr. Gibson could have used a safety belt in the circumstances.  The Secretary's burden is to show not only that a safety belt would have been an effective means of employee protection if it were used but also to show specifically how its use could have been implemented during the work operation in question.  See Chevron Oil Co., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1341, 1983 CCH OSHD 26,507, p. 33,731 (No. 10799, 1983)(Rowland, Chairman, dissenting), petition for review filed, No. 83-4371 (5th Cir. June 17, 1983).

[[3]] See the illustrations in 2 Int'l Labor Org., Encyclopedia of Occupational Safety and Health 1984-5 (3rd ed. 1983); Nat'l Safety Council, Accident Prevention Manual for Industrial Operations 1185-1189 (6th ed. 1973).

[[4]] E.g., Ted Wilkerson , Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD 25,551 (No. 13390, 1981)(200 feet away); Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD 25,293 (No. 9850, 1981)(at least 30 feet), aff'd, 676 F.2d 1065 (5th Cir. 1982).