SECRETARY OF LABOR,

Complainant,

v.

PACE CONSTRUCTION CORP.,

Respondent.

OSHR DOCKET NO. 86-0758

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

This case involves 30-foot fall hazards from scaffolds and a balcony at the perimeter of a building under construction. The parties raise objections to a decision of an administrative law judge concerning alleged violations of the Occupational Safety and Health Act, 29 U.S.C. 651-78, relating to those hazards. The judge affirmed one item of the Secretary's citation to Pace Construction Corp. and vacated another item. For the reasons set forth below, we affirm both items, and assess the proposed penalties, totaling $ 1,080.00.

Background

Pace was the general contractor for the construction of an office and retail complex in Delray Beach, Florida. While doing carpentry work on the project, Pace employee J.W. Stone fell 30 feet to the ground from an unguarded outrigger scaffold outside the fourth floor of one of the buildings. As a result of this fall, he suffered serious injuries.

An OSHA inspection followed. Item 1(a) of the resulting citation alleged that Pace did not require employees to use safety belts on the scaffold Stone fell from, in violation of 29 C.F.R. 1926.28(a) [[1/]] That scaffold was on the "southwest side, fourth level" of the building. Item 1 (b), as amended, alleged that Pace failed to provide guardrails and planking for a different scaffold, located at the southeast side of that level, in violation of 29 C.F.R. 1926.451(g)(4) and (g)(5).[[2/]] Item 2 alleged the failure to guard a balcony on which two employees were working, once again outside the fourth level, in violation of 29 C.F.R. 1926.500(d)(1). [[3/]] The judge affirmed Items 1(a) and 1(b) and vacated Item 2. For the reasons set forth below, we affirm Items 1(a) and 1(b) as serious violations, and reverse the judge on Item 2, thus affirming that item as a serious violation as well.

Item 1(a): Stone's scaffold

In order to prove a violation of the cited standard, 1926.28(a) (n.1 supra), under current Commission precedent, the Secretary must show that: (1) there was exposure to a hazardous condition, and (2) some other section in Part 1926 indicates a need for using personal protective equipment. L.E. Myers Co., 12 BNA OSHC 1609, 1614, 1986-87 CCH OSHD 27,476, pp. 35,604-05 (No. 82-1137, 1986) , rev'd on other grounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 484 U.S. 989, 108 S.Ct. 479 (1987) [[4/]] The aforementioned precedent was in effect when this case was tried. The Secretary also must prove that (3) the employer failed to require the use of the equipment. Id.

There is no dispute that the first element of the alleged violation was proven. The open sides of the outrigger scaffold from which Stone was working when he fell were unguarded, its three planks were not secured, and he wore no safety belt. As to the second element, 29 C.F.R. 1926.105(a) indicates the need for safety belts where, as here, the workplace is more than 25 feet above the ground. L. E. Myers, supra. The evidence demonstrates that the second element also was established.

We further find that the Secretary proved the third element, because the evidence supports the judge's conclusion that Pace did not adequately enforce a safety belt requirement on the worksite. It is true that Pace had a written safety belt rule. [[5/]] In addition, Pace required employees to read and sign a copy of its safety orientation booklet--which included the safety belt rule--before they began work. Furthermore, safety belts had been discussed at certain of Pace's safety meetings, at the site, before the accident.

However, the Secretary presented sufficient evidence which demonstrated that Pace's safety belt rule was not adequately enforced on the worksite, especially in light of the many violations found by its superintendent on his walkarounds. Cf., e.g., H. E. Wiese, Inc., 10 BNA OSHC 1499, 1505; 1982 CCH OSHD 25,985, p. 32,614 (No. 78-204, 1982) (explaining necessary elements of safety rule enforcement, in analyzing employer's defense of unpreventable employee misconduct. There was abundant testimony that the safety belt rule was not enforced consistently by Pace's foremen, but rather the decision as to whether to use the safety belts was left largely to employee discretion. Pace was therefore not in compliance with the standard's mandate, which expressly made it "responsible for requiring the wearing of appropriate personal protective equipment in all operations" covered by the standard. The decision whether to comply with company safety rules which reflect OSHA requirements cannot be left to the employee's discretion. See, e.g., American Bechtel, Inc., 6 BNA OSHC 1246, 1248, 1977-78 CCH OSHD 22,466, p. 27,079 (No. 11340, 1977).

Although the testimony that compliance was not routinely enforced was disputed, the judge resolved the conflicts in favor of the Secretary's witnesses.[[6/]] The judge concluded that Pace's disciplinary program "consisted primarily of verbal reprimands administered haphazardly and without effective results." He further found that Pace's employees "routinely violated the company's...rule prior to the accident," and he rejected Pace's defense that the noncompliance resulted from unpreventable employee misconduct.

The Secretary's witnesses, whose testimony the judge credited, were Fraser, a Pace carpenter at the time of the accident, and Barkalow, the foreman over the carpenters. Fraser testified that Stone was not the only employee on the scaffold without a safety belt at the approximate time of the accident. He added that he saw "probably five" employees working without safety belts on another inadequately guarded scaffold on the morning of the accident. (That scaffold is the subject of Item 1(b).)

Fraser further testified that, before the accident, he did not understand when he was supposed to wear a belt. He added that "[t]here wasn't [sic] too many people wearing safety belts" before the accident and that only two safety belts were provided for the crews until after the accident. In addition, Fraser testified that, to his knowledge, no one was reprimanded before the accident for failing to use a safety belt. Barkalow testified that he did not watch the carpenters who erected scaffolds, to see if they wore safety belts: "the belt was there; if they didn't [wear it], that was up to them."

In addition to Fraser and Barkalow's statements, there was testimony by some of Pace's own witnesses that supports the judge's findings. One of Pace's lead laborers testified that employees who had "nerve" would not wear safety belts while working outside the building perimeter.[[7/]] Pace's job superintendent, James Muziak, testified that he had issued verbal reprimands to every employee on the job about failure to wear safety belts.[[8/]] The judge concluded:

The fact that these oral reprimands were required on such a wide-ranging scale shows respondent's awareness of the problem and is a good indication that the ... [safety] belt rule was not effectively enforced or taken seriously by employees ...

The evidence indicates that essentially all of the supervisory reprimands were issued by Muziak, who typically was away from the work areas most of the day.

We accept the judge's assessment of the witnesses' credibility, and his conclusions regarding Pace's enforcement of its safety belt rule. The Commission has previously stated the principles governing review of a judge's credibility findings:

Normally, we will accept the administrative law judge's evaluation of the credibility of witnesses because it is the judge who has lived with the case, heard the witnesses and observed their demeanor... However, the judge should identify the conflicting testimony and explain the reasons for failing to credit a witness's testimony or for crediting the testimony of one witness over that of another.

Inland Steel Co., 12 BNA OSHC 1968, 1978, 1986-87 CCH OSHD 27,647, p. 36,005 (No. 79-3286, 1986) (citations omitted) . Here, the judge identified the conflicting testimony and explained that he credited the Secretary's witnesses over Pace's, where their testimony conflicted, based on his observations of their "demeanor and candor" as they testified. These are matters that the hearing judge is in a unique position to assess. As discussed above, the credibility findings here are corroborated by testimony by some of Pace's own witnesses.

Pace argues that the judge's credibility findings are contrary to the overwhelming weight of the evidence (basically, the testimony of its current employees). In particular, Pace contends that Fraser's testimony is inconsistent with that of other witnesses in many respects, and therefore is not credible. However, the testimony Pace relies on does not actually contradict Fraser's.

In this regard, Pace claims that Fraser's testimony is inconsistent with the judge's finding that superintendent Muziak had issued verbal reprimands to everyone on the job. However, Fraser merely testified that he did not know of anyone being reprimanded prior to the accident for not wearing a safety belt. Muziak did not state that his verbal reprimands were all issued before the accident. Additionally, no witness claimed that Fraser knew a verbal reprimand before the accident.

Pace also attacks Fraser's testimony regarding employees working without safety belts on a particular scaffold -- which is the subject of Item 1(b) -- on the morning of the accident. Pace points out that lead carpenter Rittnour testified that he was out on that scaffold setting it up that morning and "I was tied off every day I went out there." However, Fraser did not testify that Rittnour was one of the employees he saw on that scaffold. He merely testified that Rittnour later helped move that scaffolding to another fourth floor location for patching work.

In addition, Pace criticizes Fraser's testimony that, before the accident, he did not understand when he was supposed to wear safety belts on scaffolds. Pace notes Fraser's testimony that he was told in safety meetings to use safety belts while engaged in scaffold work. Fraser acknowledged reading and signing Pace's safety orientation booklet, which contained the safety belt rule, when he was first hired in 1985. However, the relevant questions by Pace's counsel did not elicit what instruction Fraser got before the accident, as opposed to after it. Fraser testified that only after the accident did everyone wear safety belts when working within six feet of the building's edge.

We also reject Pace's argument that Barkalow's testimony supports its position. Pace relies on Barkalow's testimony that employees were instructed in safety meetings to use a safety belt when erecting guardrails on scaffolds. Barkalow further testified that he carried safety belts to the employees every morning and told them, "Here they are, boys." However, that testimony does not show that safety belt use actually was enforced on the worksite. Nor does it contradict the testimony relied on by the judge. Thus, we accept the judge's credibility findings to the effect that Pace's safety belt rule was not enforced adequately.

Pace next contends that its safety program was adequate under Inland Steel. supra. That argument is unpersuasive. In Inland Steel, the Commission found that the Secretary had failed to prove that Inland's safety rules were not properly enforced. The basis for the Commission's decision, however, was its acceptance of the judge's credibility findings, which resolved the conflicts in the testimony in favor of the employer's witnesses. Those witnesses had testified to the effect that Inland Steel's work rules were enforced consistently. 12 BNA OSHC at 1979-84, 1986-87 CCH OSHD at pp. 36,006-11. Here, by contrast, we have accepted the judge's credibility findings in favor of those witnesses who testified to the effect that compliance with Pace's safety rule was not adequately enforced, but rather left largely to employee discretion. Those credibility findings dispose of the adequacy of enforcement issue.

Pace further argues that the judge erred in rejecting its defense of unpreventable employee misconduct. Pace asserts that its defense is supported by a decision of the Eleventh Circuit in Daniel International Corp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982) It is not. In Daniel International, the court vacated a citation issued to a construction firm on the ground that the employees,' failure to were safety belts was unpreventable misconduct. However, unlike here, the employer and its foreman there consistently enforced the safety belt requirement, making frequent daily checks to be certain they were being used. The court noted that the foreman "did everything except lead the crew by the hand." Id. at 365. The rules called for termination of an employee who failed to wear a safety belt, and the employer proved that its rule had been enforced. At Pace's worksite, the rule was not adequately enforced by its foremen.

Pace argues that the Secretary failed to show that, with the exercise of reasonable diligence, Pace could have known that Stone was exposed to a fall, because that exposure was of short duration. However, the violation is not confined to Stone's situation. The violation is Pace's failure, through its foremen, to require the wearing of safety belts, where needed, over a long period of time. Its superintendent knew or reasonably could have known of that failure, because he had to reprimand each employee for noncompliance with Pace's safety belt rule during the course of the job.

Clearly, Pace knew or reasonably could have known of the violation. See 29 U.S.C. & 666(k).

Thus, all the elements of a violation a have been established here: the standard applied to the conditions, its terms were violated, Pace employees had access to the hazards, and Pace had the requisite knowledge of the violation. See, e.g., Trumid Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD 29,078, p. 38,859 (No. 86-1139, 1990). The Secretary has prevailed under the Commission's statement of her burden of proof of a 1926.28(a) violation. See L. E. Myers, supra. In addition, based on the undisputed evidence we find that Pace recognized safety belts to be a feasible means of abatement, and that a significant risk of harm existed.[[9/]] Item 1(a) is affirmed.

Item 1(b):Southeast scaffold

As noted above, Fraser testified that a second outrigger scaffold was used the same morning that Stone fell. He testified that this scaffold, as initially erected that morning on the southeast side, fourth level, had a handrail, but no midrail or toeboard, and that Pace's employees working on it had not worn safety belts. According to Fraser's testimony, the scaffold later was moved, and Pace employees again worked from it without safety belts, although its planks were not secured and he believed it had no guardrail. One of the cited standards, 1926. 451(g)(4) (n. 2 supra), requires that planking on outrigger scaffolds "be secured to the beams." The other cited standard, 1926.451(g)(5) (n.2 supra), requires that outrigger scaffolds have midrails, toeboards, and a standard handrail. The OSHA inspector testified that he learned about the lack of proper guarding on the southeast scaffold from conversations with employees.

As to Pace's knowledge of the conditions, Fraser testified that normally Paces scaffolds had a guardrail on the exterior side, but none on the ends.[[10/]] One of Pace's lead carpenters testified that "just occasionally" he saw employees erect or dismantle scaffolding in an improper manner, and that he never saw employees reprimanded for doing so. [[11/]] He further testified that he observed employees engaging in this improper practice on the day of the accident. Superintendent Muziak testified at one point that he had never seen Pace scaffolds in use that were not properly erected. However, he then acknowledged that he had seen ones that lacked a few planks, and that he told the employees to correct the situation. Pace presented no direct testimony as to the condition of the cited scaffold [[12/]]

Thus, the evidence establishes that 1926.451(g)(5) applied to the scaffold, that its terms were violated, and that employees had access to the hazards. The evidence also indicates that, with the exercise of reasonable diligence, Pace could have known of the noncompliance.

Pace's sole defense to this charge is its claim that its supervisors communicated and enforced work rules requiring proper scaffold guarding, and that any noncompliance was therefore the result of unpreventable employee misconduct. To establish that affirmative defense, the employer "must demonstrate that it took all feasible steps to prevent the [violation], and that the actions of its employees were a departure from a uniformly and effectively communicated and enforced work rule of which departure [the employer] had neither actual nor constructive knowledge." Daniel International, 683 F.2d at 363.

In support of its defense, Pace points to Muziak's testimony that he instructed several carpenters on proper scaffold guarding, and ordered that they alone were to be in charge of erecting scaffolds. However, the evidence does not indicate that Pace's scaffold guarding rules were communicated to employees generally, or that its foremen enforced the rules in practice.

Although Muziak testified as to his efforts to have the guardrail deficiencies he saw corrected, his individual enforcement efforts were apparently ineffective, as demonstrated by the numerous unguarded structures on which Pace employees worked without fall protection during the two days involved here. As discussed above, in addition to the southeast scaffold, Stone's scaffold was unguarded, and there was no guarding on the balcony on the same level the next day. The inspector testified that on the day of Stone's fall, a third scaffold, on the same level, also lacked guardrails on its ends and part of its exterior side.
The testimony discussed above, including the testimony from witnesses Pace relies on, indicates that they knew scaffolds were not consistently erected properly. Thus, the evidence shows that Pace had reason to know that the southeast scaffold, like Stone's scaffold, might not have guardrails or proper planking. It is clear that Pace has failed to show that any work rule on scaffold guarding was effectively communicated or enforced. We therefore conclude that, with the exercise of reasonable diligence, Pace could have known of the violative conditions. For the reasons cited above, Item 1(b) is affirmed.

Item 2:  Balcony on fourth level

The Secretary alleged a violation of 1926.500(d)(1) (n. 3 supra), in that "[o]n or about April 15, 1986, employees working from unguarded platform at southeast area were exposed to fall hazard of 30 feet [because] guardrails or safety belts were not in use." The major issue presented here is whether the standard, which requires guardrails only on a "floor or platform," applies to the cited balcony.

The inspector testified that he observed two employees on a balcony when he arrived at the jobsite on April 15. The employees were within about two feet of the unguarded edge, and were not wearing safety belts. They were grinding concrete at a depression where a patio door was to be installed, between the balcony and the main floor. This work would take about an hour.

The balcony was five feet wide and 20 feet long. It extended out from doorways at the building line. The day of the inspection (April 15) was the first day that the grinding had been done on any balcony. Similar grinding was done on at least two other balconies after April 15. However, the inspector did not know if work was performed regularly on the balconies. Pace states in its brief that the building was to have only four stories, and that statement is not disputed.

The parties and the judge focused on whether the balcony was a "platform." The judge found that it was not, and vacated the item, essentially because he found that the balcony was not built as a "working space." The word "platform" is defined in 1926.502(e) as:

A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.

The judge's view has some support in the extensive case law on the meaning of the term. For example, the Second Circuit has held
the term applies only to:

elevated working spaces . . . which are designed primarily for the operation of machinery and equipment and which require employee presence on a predictable and regular basis; and not to spaces where only occasional maintenance or repair work is performed.

General Electric Co. v. OSHRC, 583 F.2d 61, 65 (2d Cir. 1978) (interpreting comparable general industry requirements for platforms at 29 C.F.R. 1910.23(c)(1)). However, the courts are in some disagreement as to what a "platform" is. E.g., Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir. 1981) (court declined to follow General Electric, stating that "platform" includes "those elevated surfaces where employees work and which in the reasonable judgment of the Secretary need protection from injury by guardrails").

We need not resolve whether this balcony served as a "platform" as defined in the standard, because the standard applies also to a "floor," and the balcony fits the standard definition of a "floor." For example, Webster's Third New International Dictionary provides a number of meanings for "floor," including the following:

the surface or the platform of a structure on
which to walk, work, or travel (the [floor] of a bridge) (the [floor] of a prize ring).

Furthermore, the Random House Unabridged Dictionary defines "floor," among other things, as:
A Level, supporting surface in any structure:
the floor of a bridge; the elevator floor.

...a platform or prepared level area for a particular use: a threshing floor.

(Emphasis added). The balcony here was directly connected to the fourth level, was approximately level with it, and was designed to be stepped onto directly from the interior of the fourth level. It was a "floor" as commonly defined, whether or not it was designed as a work "platform." Cf., Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 176-77 (D.C. Cir. 1984) (walkway was not platform as alleged, but court amended pleadings sua sponte to conform to evidence that it was unguarded runway in violation of different standard).

Thus, the cited section applied to the balcony. Further, since there were no guardrails, Pace did not comply with the terms of the section. There is no dispute that employees were exposed to the fall hazards covered by the section (they stood as close as two feet from the edge, with no fall protection). In addition, the Secretary showed the requisite knowledge on the part of Pace. The employees were in plain sight when the inspector spotted them upon his arrival. Tile employees had been assigned to work on the area between the main floor and the balcony, and the evidence did not indicate that they were told not to work from the balcony. Again, the problem of failure to enforce fall protection requirements was a longstanding problem. Thus, with the exercise of reasonable diligence, Pace could have known of the violative conditions. Pace's defense of unpreventable employee misconduct fails for the same reason it was rejected under Items 1(a) and (b). Item 2 is affirmed.

Classification of violations; penalties

The violations were clearly serious, as alleged, because 30-foot fall hazards were involved. See 29 U.S.C. 666(k). As to appropriate penalties, the Secretary proposed a $630 penalty for Items 1(a) and 1(b) combined, and the judge assessed that amount.

We affirm that assessment.The undisputed testimony of the inspector was that Pace had more than 100 employees. Pace's substantial safety program showed good faith, although its enforcement of its work rules on this worksite fell well short of meeting its obligation to comply with the applicable OSHA standards. Pace had no history of violations in the area, but the gravity of the violations was severe, and numerous employees were exposed on the day of Stone's accident alone. As to Item 2, the Secretary proposed a $450 penalty. We affirm that amount, for the same reasons given above. See 29 U.S.C. 666(j).

Accordingly, Items 1(a), 1(b), and 2 of the citation are affirmed as serious violations, and penalties totaling $1,080.00 are assessed.

Edwin G. Foulke, Jr.
Chairman


Velma Montoya

Commissioner


Donald G. Wiseman

Commissioner

April 12, 1991



SECRETARY OF LABOR,

Complainant ,

v.

PACE CONSTRUCTION CORPORATION,

Respondent.

OSHRC Docket No. 86-0758

APPEARANCES: Laurie E. Rucoba, Esquire, Office of the Solicitor, U. S. Department of Labor, Fort Lauderdale, Florida, on behalf of complainant


R. Daniel Douglass, Esquire, Atlanta, Georgia, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge: At the time in question respondent, Pace Construction Corporation, was the general contractor at the Atlantic Plaza Project, an office and retail complex in Delray Beach, Florida. Respondent's employees were engaged in performing certain concrete forming work and carpentry in connection with this project, which included the construction of a four-story building. Other aspects of the operation were conducted by subcontractors under respondent's general supervision.

On April 14, 1986, a Pace employee, John Stone, fell from an outrigger scaffold and was seriously injured. This accident was duly reported to the Occupational Safety and Health Administration, and an inspection precipitated the issuance of a serious citation charging respondent with violations of 29 U.S.C. 651, et seq., and the regulations issued thereunder. The citation was contested by respondent, and the matter was heard in Fort Lauderdale, Florida, on September 23, 1986.

At issue in this case is whether respondent violated the following regulations as alleged in the Secretary's citation and complaint:

1a
29 CFR 1926.28(a): Appropriate personal protective equipment was not worn by employees in all operations where there was exposure to hazardous conditions:

(a) On or about April 14, 1986, employee working from 30 feet high outrigger platform at the southwest 4th level, was not wearing safety belt attached to an independent safety line and standard railings were not installed on platform.

1b
29 CFR 1926.451(a)(4)(amended to include 1926.451(g)(4) and (g)(5)):[[1/]] Standard guardrails and toeboards were not installed on all open sides and ends of platforms more than 10 feet above the ground or floor:

(a) On or about April 14, 1986, employees, working on outrigger scaffolds which were not equipped with standard railings, were exposed to fall hazard of 30 feet while working on east end south side of 4th level.

2
29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides:

(a) On or about April 15, 1986, employees working from unguarded platform at southwest area were exposed to fall hazard of 30 feet, guardrails or safety belts were not in use.

Items 1a and 1b of the citation relate to circumstances existing on the day of the accident (April 14) with respect to the actions of John Stone and other carpenters working from outrigger scaffolds. Item 2 relates to an incident observed by Compliance Officer Joseph DeMartino on the day following the accident (April 15) involving certain employees allegedly working on an unguarded platform without fall protection. These two occurrences will be separately discussed.

Serious Citation No. 1
Items 1a and 1b

The circumstances in existence at the time of the accident are not in dispute. On the morning of April 14, Stone was using an outrigger scaffold on the fourth floor of the building in connection with the placement of boards or "stripping" along the bottom of tresses "so the joints wouldn't curl" (Tr. 17, 39). The job required a minimum of work and was not expected to take more than a few minutes to complete (Tr. 40). Stone and two other employees placed some planks on the scaffold in preparation for the work but did not secure the planks nor did they erect guardrails or toeboards (Tr. 51). Stone went on the scaffold without a safety belt, stepped on a loose plank, and fell to the ground below sustaining serious injury.[[2/]] Photographs taken by the compliance officer following the accident depict the scaffolding in question and clearly show the absence of guardrails and toeboards (Exs. C-2, C-3). The Secretary's evidence fully supports the basic elements necessary to establish a change under the cited standards.

Respondent, at the hearing and in its brief, does not call into question the facts just outlined but seeks to prevail on the basis that Stone's actions were an isolated incident of employee misconduct. To establish this defense, an employer must show that the action of its employee was a departure from a work rule that was uniformly and effectively communicated and enforced. Frank Swidzinski Co., 78 OSAHRC 28/B5, 9 BNA OSHC 1230, 1981 CCH OSHD 25,129 (No. 76-4627, 1981); Merritt Electric Co., 1981 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD 25,556 (No. 77-3773, 1981); Wander Iron Works, Inc., 1980 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD 24,457 (No. 76-3105, 1980); Ted Wilkerson Inc., 1981 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD 25,551 (No. 13390, 1981); H. B. Zachary, 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD 24,196 (No. 76-1393, 1980), aff 'd, 638 F.2d 812 (5th Cir. 1981).

Respondent had a work rule requiring the use of safety belts when an employee was "exposed to a fall of four (4) feet or more" (Ex. R-11, Rule 14), and the existence of this rule is conceded by the Secretary (Secretary's Brief, page 8). Respondent conducted regular safety meetings at this project, as documented in Exhibits R-3 through R-8, although this documentation does not indicate that the wearing of safety belts was specifically discussed. It further appears respondent had safety belts available for use at the project. The crucial question for resolution is whether respondent effectively communicated and enforced it safety belt work rule, and on this point the evidence is conflicting.

The Secretary called two witnesses, Richard Barkalow, respondent's carpenter foreman, and John Fraser, a journeyman carpenter to support his position. The testimony of these witnesses tends to show that the wearing of safety belts was left to the discretion of individual employees and was not rigidly enforced. Barkalow, a member of management, conceded that he did not wear a safety belt on the job (Tr. 23) and testified he "didn't watch" employees and that wearing belts was "up to them" Tr. 21-22). Fraser, who worked with Stone, testified "there wasn't too many people wearing" safety belts before the accident (Tr. 52) and that employees were not reprimanded for failure to wear the belts (Tr. 52-53).

Respondent's witnesses generally supported a position that employees were told to wear belts and were verbally reprimanded when infractions were observed by supervisory personnel. James Muziak, respondent's job superintendent, testified that he regularly instructed and repeatedly reminded employees to use safety belts and tie off whenever they were exposed to fall hazards (Tr. 215). His testimony was supported by James L. Rittnour (Tr. 160, 165) and Jose J. Motez (Tr. 195-201). However, Willie Thomas, respondent's lead laborer, testified he did not always wear a belt (Tr. 188) and that "people take a chance" if they "got nerve" (Tr. 186).

To resolve this conflicting testimony, the undersigned has relied in large measure upon his observations of the witnesses during the course of their testimony, including their demeanor and candor when responding to critical questions. In this light the Secretary's witnesses were more credible than those offered by respondent, and it is concluded the decision to wear safety belts was left largely to employee discretion.

In attempting to resolve the effectiveness of respondent's safety policies, the company's "Disciplinary Action Program," introduced as Respondent's Exhibit 1, has also been considered. This program sets up procedures to assure that respondent's safety policies are carried out and provides for layoffs and termination when appropriate. The record reflects only two written reprimands were issued pursuant to this program at this jobsite. On April 4, 1986, an employee was cited for not wearing a shirt (Ex. R-9) and on April 21, 1986 (after the accident), an employee was reprimanded for failure to tie off (Ex. R-10). It appears in the record that Muziak did not implement this program until March of 1986 due to the fact that company forms for use in the program were not provided until then (Tr. 225-226). Prior to the accident, respondent's program consisted primarily of verbal reprimands administered haphazardly and without effective results.

Respondent's claim that it lacked knowledge of its employees' failure to wear safety belts has also been considered. It is abundantly clear in this record that respondent's supervisors were well aware of the necessity for wearing belts to protect against fall hazards at this project. Indeed, James Muziak, the job superintendent, admitted he issued verbal reprimands regarding belts to everyone on the job at least once (Tr. 228). The fact that these oral reprimands were required on such a wide-ranging scale shows respondent's awareness of the problem and is a good indication that the seat belt rule was not effectively enforced or taken seriously by employees. See A. C. Dellovade, 13 BNA OSHC 1027, (No. 83-1189, 1984), issued on January 12, 1987.

In summary, the record confirms that respondent's employees routinely violated the company's seat belt rule prior to the accident and that the events occurring on April 14, which resulted in serious injury to employee Stone, did not constitute an isolated incident of employee misconduct.

Serious Citation No. 1
Item 2

This citation charges respondent with a violation of 29 C.F.R. 1926.500(d)(1) [[3/]] for failure to provide guardrails around a balcony on the southwest side of the building or, in the alternative, that employees working on this balcony were not wearing safety belts to protect against falls.

The charge results from an observation made by the compliance officer on the second day of his inspection (April 15). As he approached the work site, the compliance officer observed two employees working without fall protection on an unguarded platform at the fourth floor level of the building under construction. He proceeded to the job trailer and advised superintendent Muziak of this situation (Tr. 72-73), and Muziak contacted Barkalow by radio to inquire about the circumstances. According to the compliance officer, Barkalow reported to Muziak that the involved employees were employed by Pace and were performing grinding work on the balcony without wearing safety belts (Tr. 73-74). This incident was confirmed in the testimony of Muziak (Tr. 219-221) and also by Willie Thomas, who was at the work site and observed the employees working without belts at the fourth floor level (Tr. 187-188).

Respondent attacks this charge on the grounds that the balcony in question was not a "platform" as contemplated by the standard and also that respondent lacked actual or constructive knowledge that the employees performing this work were not wearing safety belts.

There is merit to respondent's first argument. The term "platform" as used in the cited standard is defined at 29 C.F.R. 1926.502(e) follows:

A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery or equipment.
It is clear that the balcony in question was never intended to be a work platform which would require the installation of standard guardrails. The grinding work was done at the interior edge of the building and was performed either from within the building or at a location on the balcony well back from the open edge (Tr. 184-185, 219-220). This work was a one-time operation and required less than an hour to complete (Tr. 192-193).

Commission decisions indicate that applicability of the standard depends on the nature of the structure, the frequency and regularity of use by employees, and whether designed and intended to function as a working surface. Clement Food Company, 11 BNA OSHC 2120, 2126 (No. 80-607, 1984); Globe Industries, Inc., 82 OSAHRC 24/D4, 10 BNA OSHC 1596, 1982 CCH OSHD 26,048 (No. 77-4313, 1982). In Rexco Industries, Inc., 80 OSAHRC, 32/A2, 8 BNA OSHC 1227, 1980 CCH OSHD 24,376 (No. 15350, 1980??), the Commission vacated a citation under 1926.500 (d)(1) based on the lack of evidence that any employees were assigned to work on the cited fourth floor surface or that the employer knew or should have known that employees would go onto the surface to perform the work. Similarly, the evidence in the present case shows that the balcony in question was not used or intended to be used as a platform from which to perform work. The employees were doing grinding work to the balcony itself and were not expected to go onto the balcony to perform the work. Under these circumstances the requirement to install standard guardrails is inappropriate, and this citation will be vacated insofar as it requires the installation of guardrails and toeboards.

In the absence of guardrails, however, employees should have been protected by safety belts, and respondent's argument that it lacked constructive or actual knowledge that employees were performing this work without wearing safety belts is rejected for the reasons previously recited in regard to Citation No. 1. The fact that this incident occurred the day following the accident serves only to bolster a conclusion that respondent's safety belt rule was routinely disregarded by respondent's employees and supervisors. Since penalties have already been assessed for this infraction, no further penalties will be levied.

FINDINGS OF FACT

1. The respondent, Pace Construction Corporation, is a general contractor with its home office in Atlanta, Georgia. During the period in question, respondent was engaged in the construction of an office and retail complex in Delray Beach, Florida.

2. Respondent is a corporation which has employees who handle or otherwise work on goods received in or produced for commerce.

3. On the morning of April 14, 1986, John Stone, an employee of respondent, was using an outrigger scaffold on the fourth floor level of a building under construction. The scaffold in question had been hastily rigged. The planks in use on the scaffold were not secured to the beams nor had guardrails and toeboards been installed around the perimeter. While working on the scaffold without a safety belt, Stone stepped on a loose plank and fell to the ground below sustaining serious injury.

4. Respondent had a work rule requiring the use of safety belts when an employee was exposed to a fall hazard. This work rule was not effectively communicated to employees nor was it enforced by respondent's supervisory personnel. The wearing of safety belts was left largely to the discretion of individual employees, and the safety belt rule was frequently violated by respondent's employees.

5. On April 15, 1986, employees of respondent were doing some grinding work on a balcony at the fourth floor level of a building under construction. The grinding work was done at the interior edge of the building and was performed either from within the building or at a location on the balcony well back from the open edge. The balcony was not used as a work platform.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in a business affecting commerce and is subject to the jurisdiction of the Occupational Safety and Health Review Commission.

2. Respondent has violated the provisions of 29 C.F.R. 1926.28 (a) by permitting employees to work without safety belts to protect them from hazardous falls.

3. Respondent has violated the provisions of 29 C.F.R. 1926.451 (g)(4) and (g)(5) by permitting employees to work on outrigger scaffolds which were not provided with guardrails and toeboards and where planking was unsecured.

4. Respondent did not violate the provisions of 29 C.F.R. 1926.500 (d)(1).

ORDER It is hereby ORDERED:

1. Serious Citation No. 1, items 1a and 1b, is affirmed with a penalty of $630 assessed.

2. Serious Citation No. 1, item 2, is vacated.

EDWIN G. SALYERS
Judge

Date: March 23, 1987




FOOTNOTES:

[[1/]] That section provides:
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.

[[2/]] Those sections provide:

1926.451 Scaffolding.
(g) Outrigger scaffolds.
(4) Planking shall be laid tight and shall extend to within 3 inches of the building wall. Planking shall be secured to the beams.
(5) Guardrails approximately 42 inches high, with a midrail ... and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. ...

[[3/]] 1926.500 Guardrails, handrails, and covers.
(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent,.... on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a. standard toeboard wherever, beneath the open sides, persons can pass, . . . .

[[4/]] The current language of the standard (n.1 supra) indicates that the Secretary need only prove one of those two elements. (It uses the disjunctive word "or" between them.) The basis for the Commission's holding in L. E. Myers that both elements must be proved was that: (1) the standard as originally drafted required compliance only where both elements existed, and (2) the current version, using the disjunctive "or," was an invalid change, because it was made without public notice and comment. 12 BNA OSHC at 1611-14, 1986-87 CCH OSHD at 35,601-04.

[[5/]] The rule stated:

Any employees exposed to a fall of four (4) feet or more must be tied off with safety belt and lanyard where no other type of fall protection is provided.
The Secretary does not dispute that this rule would be adequate, if followed.

[[6/]] The judge stated:

To resolve this conflicting testimony, the undersigned has relied in large measure upon his observations of the witnesses during the course of their testimony, including their demeanor and candor when responding to critical questions. In this light the Secretary's witnesses were more credible than those offered by respondent, and it is concluded the decision to wear safety belts was left largely to employee discretion.

[[7/]] Pace argues that this same witness gave contradictory testimony when he stated that his own failure to wear a safety belt on the unguarded balcony at issue in Item 2 was an "isolated incident." However, the employee was referring only to incidents on balconies, not scaffolds. It is undisputed that the balcony at issue in Item 2 was the first balcony worked on by employees. The employee also testified that immediately after Stone's fall, Pace enforced the safety belt rule more intensively.

[[8/]] Pace argues that Muziak did not so testify, but its quotation from his testimony is selective and transposes certain testimony. The transcript supports the judge's reading of Muziak's testimony, and we adopt that reading. Pace asserts that at one point in his decision, the judge made a finding that contradicts that reading of Muziak's testimony. However, the judge found only that no written reprimands had been issued for safety belt violations. That statement does not contradict his other findings.

[[9/]]Pace has not raised the issue of whether the outrigger scaffold guarding requirements are more specifically applicable to the cited conditions than 1926.28(a). Thus, we need not resolve that issue.

[[10/]] There was testimony that toeboards were never used before Stone's accident. Pace argues that the failure to use toeboards was de minimis because no employees worked below the scaffolds, so there existed no hazards as to them from falling materials. We need not determine whether Pace is correct on this point, in light of the evidence establishing other deficiencies in the guarding of the scaffold that clearly presented serious hazards to employees.

[[11/]] Pace relies on foreman Barkalow's testimony that he never saw scaffolding in use that was not guarded or properly planked. However, Barkalow was not directly responsible for scaffold erection, and he did not testify that he checked on compliance with scaffold guarding requirements. The evidence showed that he did not check on compliance with Pace's safety belt rule. We therefore conclude that the testimony quoted above, by the lead carpenter responsible for scaffold erection, was based on closer observation, so far as this record shows.

[[12/]] Pace argues that Fraser's testimony is not credible because he did not perform scaffolding work and did not remember whether safety belt's were carried out to the jobsite for employee use each day before the accident. We do not think those factors negate the value of his testimony. The judge credited it over that of Pace's witnesses on the issue of safety belts. We find no reason not to credit Fraser's testimony regarding the condition of the southeast scaffold on the morning of the accident.

[[1/]] The original citation alleged only a violation of 29 C.F.R. 1926.451(a)(4), which requires guardrails and toeboards on scaffold platforms. In his complaint, the Secretary amended the citation by alleging additional violations of 29 C.F.R. 1926.451(g)(4) and (g)(5), which requires planking be "laid tight" and "secured to the beams" on "outrigger scaffolds," as well as guardrails and toeboards. The evidence adduced at the hearing clearly reflects the "outrigger scaffold" regulations are more appropriate. While respondent initially opposed the amendment in its answer, no further objections were raised at the hearing or in respondent's brief nor is there any indication that the proposed amendment surprised or hindered respondent in its defense. Accordingly, the Secretary's amendment is allowed. See H. B. Zachary Co. v. OSHRC, 638 F.2d 812 at 816.

[[2/]] As a result of the accident, Stone suffered from head trauma and a memory deficit which prevented him from appearing as a witness in the case (See Ex. C-1).

[[3/]] Section 1926.500(d)(1) provides:
(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.