Docket No. 87-1309

SECRETARY OF LABOR,

Complainant,

REGINA CONSTRUCTION COMPANY,

RESPONDENT.

OSHRC Docket No. 87-1309

DECISION

Before: Foulke, Chairman; and WISEMAN, Commissioner.

BY THE COMMISSION:

The issue in this case is whether former Commission Administrative Law Judge Paul A. Tenney erred in concluding that Regina Construction Company ("Regina") had knowledge that its employee was exposed to a recognized fall hazard, in violation of 29 U.S.C. ї 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act").[[1/]]

I. Background

Regina is a concrete construction company with its principal office in Alexandria, Virginia. On June 26, 1987, a compliance officer from the Occupational Safety and Health Administration ("OSHA") inspected a construction site in Washington, D.C., where Regina was a subcontractor. During the inspection, the compliance officer observed and photographed Mark Coleman, an employee of Regina, performing concrete finishing work, or "rubbing," on a wall of a shaft opening while standing next to the edge of an unguarded, open-sided floor, which was 24 feet above the ground. Coleman was not using a safety belt or other personal protective equipment. He was working beyond a railing, upon which there was a sign stating in large letters: "Danger, Keep Out."

As a result of the inspection, the Secretary alleged in Citation 1 Item 1, as amended in the complaint, that Regina had committed a violation of section 5(a)(1) of the Act,[[2/]] by permitting its employee, who was working without any fall protection, to be exposed to the recognized hazard of falling 24 feet from an unguarded open-sided floor. The complaint asserted that exposure to the hazard could have been eliminated or materially reduced by requiring the employee to use a safety belt and lifeline. A penalty of $400 was proposed.

In his decision, the judge correctly stated that in order to establish a violation of section 5(a)(1), the Secretary must prove that: (1) a condition or activity in the workplace presented a hazard to an employee; (2) the hazard was recognized; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard. United States Steel Corp., 12 BNA OSHC 1692, 1697-98, 1986-87 CCH OSHD І 27,517, p. 35,669 (No. 79-1998, 1986) Furthermore, the judge correctly noted that the Secretary must additionally show that Regina knew or, with the exercise of reasonable diligence, could have known of the violative condition. United States Steel Corp., 12 BNA OSHC at 1699, 1986-87 CCH OSHD at p. 35,671 (citing Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976)). The Secretary must prove each element of her case by a preponderance of the evidence. All Purpose Crane, Inc., 13 BNA OSHC 1236, 1238, 1986-87 CCH OSHD І 27,877, p. 36,549 (No. 82-284, 1987); Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD І 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982).

In his decision, the judge determined that the Secretary had met her burden of proof by a preponderance of the evidence with regard to each of those elements. He concluded that Regina had knowledge of the violative condition through its foreman. The judge found "unpersuasive" Regina's argument that it lacked knowledge of Coleman's exposure because it resulted from an isolated instance of employee misconduct and was contrary to the foreman's instructions. He assessed a penalty of $250, based on Regina's good faith and "substantial safety program."

At issue on review is whether the judge erred in finding that Regina had knowledge of the violative condition and in rejecting Regina's contention that Coleman's conduct was unpreventable.[[3/]]

II. Employer Knowledge

As noted above, to establish a violation of section 5(a)(1), the Secretary must show that the cited employer had knowledge of the violative condition. United States Steel Corp., 12 BNA OSHC at 1699, 1986-87 CCH OSHD at p. 35,671 (citing Getty Oil Co. v. OSHRC, 530 F.2d at 1145). In establishing this element, the actual or constructive knowledge of an employer's foreman can be imputed to the employer. See A.P. O'Horo Co., 14 BNA OSHC 2004, 2007, 1991 CCH OSHD І 29,223, p. 39,128 (No. 85-369, 1991).

The Secretary contends that she established a prima facie showing of Regina's knowledge of the hazardous condition by introducing statements made by Coleman, as testified to by the compliance officer, that his foreman had actual knowledge of his situation. Regina argues that those statements are hearsay and inadmissible, and therefore the Secretary failed to make the requisite prima facie showing of knowledge. Regina further asserts that, even if the Secretary did make such a showing, the testimony of Warren DiLandro, Regina's construction manager, who was its general superintendent for the project, is sufficient to rebut that showing.

A. Compliance Officer's Testimony

The compliance officer, the Secretary's only witness, testified that, after he observed Coleman during the inspection, he asked Coleman "if his foreman had been there with him and [Coleman] said [his foreman] had just left, that he had brought him up and given him the work assignment." The compliance officer testified that, during this conversation, which lasted about a minute, Coleman told him that "he had been there for awhile doing the work." Coleman's statement to the compliance officer is consistent with the compliance officer's observation that the area where Coleman was working was still damp, which demonstrated to him that Coleman "had been there for a considerable period of time."

B. General Superintendent's Testimony

Warren DiLandro, Regina's general superintendent for the project, accompanied the compliance officer during the inspection. DiLandro was not asked, and there is no evidence in the record that indicates, whether DiLandro heard the conversation that the compliance officer had with Coleman. There is evidence that DiLandro saw Coleman during the inspection, for it was at the compliance officer's request that he identified Coleman as a Regina employee and gave his name to the compliance officer. According to DiLandro, Coleman "was in the right tower but the wrong place" because where he was working no rubbing was required, as those walls were to be covered with brick. DiLandro explained that he had instructed Coleman's foreman, who is named William Nesbit, to have his concrete finishing crew "use the swing staging that [was] set up in the east tower stairwell and rub" walls other than where Coleman was working When asked "did you verify with the foreman that Mr. Coleman was not authorized to be in that area," DiLandro responded in the affirmative. He responded in the negative when asked if any Regina employees were "working in that particular area on that particular day."

C. Judge's Decision

In his decision, the judge stated that "Mr. Coleman was performing the concrete finishing work in question in an area that was authorized by Mr. Nesbit, the foreman." He noted that "[t]here was conflicting testimony on this." Rejecting Regina's argument that Coleman's statement to the compliance officer was hearsay, the judge concluded that

the statement concerned the scope of his
employment, and is therefore admissible and
reliable. It qualifies as an admission. FRE
Rule 801 (d)(2)(D).

He determined that "[t]he foreman had just seen and spoken to the exposed employee and saw, or should have seen, that he was exposed to the fall hazard," and he imputed Nesbit's knowledge to Regina.

D. Admissibility of Testimony as to Coleman's Statements

Rule 71 of the Commission's Rules of Procedure, 29 C.F.R. ї 2200.71, provides that in Commission proceedings "[t]he Federal Rules of Evidence are applicable." In concluding that Coleman's statements to the compliance officer were admissible, the judge relied on Rule 801(d)(2)(D) of the Federal Rules of Evidence, which states:

(d) Statements which are not hearsay.--A
statement is not hearsay if--
* * *
(2) Admission by party-opponent. --The state-
ment is offered against a party and is . . .
(D) a statement by his agent or servant
concerning a matter within the scope of his
agency or employment, made during the
existence of the relationship. . . .

At the hearing Regina timely objected to the admission into evidence of the compliance officer's testimony regarding his conversation with Coleman. Regina acknowledges that the judge admitted the testimony concerning Coleman's statements because the statements "concerned matters within the scope of the employee's agency." However, Regina contends that the statements are hearsay, and "[u]nder Rule 802, hearsay is not admissible except as provided in certain limited exceptions. The Secretary failed to show that any such exception existed in this case and, indeed, [one] did not."

The Secretary supports the judge's decision that, as testified to by the compliance officer, Coleman's statements about what Nesbit told him were not hearsay and were admissible under Rule 801(d)(2)(D), citing Astra Pharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69, 73 n.8 (1st Cir. 1982) (out-of-court statements of employees not hearsay but rather admissions of party opponent under 801(d)(2)(D)); StanBest, Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD І 26,455, p. 33,621 (No. 76-4355, 1983)(same).

Both Coleman and his foreman Nesbit were employees of Regina at the time the statements at issue were made, and the statements concerned their work activities, which were within the scope of their employment.[[4/]] Based on the plain language of Rule 801(d)(2)(D), the statements are admissions, which are not hearsay. Therefore, their statements are admissible.

Regina argues that foreman Nesbit's instructions to Coleman as described by Coleman to the compliance officer are "double hearsay." The judge rejected that claim, noting: "See also FRE Rule 805 (the otherwise double hearsay of Nesbit would also qualify as an admission)." The rule to which he refers is Rule 805 of the Federal Rules of Evidence, which provides:

Hearsay included within hearsay is not
excluded under the hearsay rule if each part
of the combined statements conforms with an
exception to the hearsay rule provided in
these rules.

While it is arguable that Rule 805 does not apply where, as here, the statements at issue are admissions under Rule 801(d)(2)(D), a number of courts have considered admissions to be "within the spirit and purpose of the rule." McCormick on Evidence ї 324.3 (E. Cleary 3d ed. 1984). Commentators have noted that the language in Rule 805 requiring that each part "conforms with an exception to the hearsay rule"[[5/]] has been read by courts to include" [s]tatements which are not hearsay" under Rule 801(d), such as admissions by a party-opponent. 4 J. Weinstein & M. Berger, Weinstein's Evidence І 805 [01] (1990) ; 4 D. Louisell & C. Mueller, Federal Evidence ї 496 (1980 & Supp. 1990). See, e.g., Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967, 970 (4th Cir. 1987) ; United States, v. Portsmouth Paving Corp., 694 F. 2d 312, 321-322 (4th Cir. 1982).

As we found above, each part of the combined statements at issue here is not hearsay and therefore not excluded under the hearsay rule according to Rule 805. Both Nesbit's "admission" to Coleman assigning him to work in the location, and Coleman's "admission" to the compliance officer, which contains Nesbit's "admission," are not hearsay under Rule 801(d)(2)(D).

We therefore conclude that, based on the considerations above, the compliance officer's testimony concerning statements made to him by Coleman during the inspection is admissible.

E. Reliability of Coleman's Statements to the Compliance Officer

In his decision, the judge appeared to equate admissibility with reliability--"the statement concerned the scope of his employment, and is therefore admissible and reliable." Regina also appears to combine the two concepts in its arguments. As the Commission has noted, "[w]hether evidence should be classified as non-hearsay for the purpose of determining its admissibility bears little relation to its value to support the Secretary's case." Morrison Knudsen, Inc., 13 BNA OSHC 1121, 1123, 1986-87 CCH OSHD І 27,869, p. 36,540 (No. 80-345, 1987). Certain exceptions to the hearsay rule (see note 5 supra) exist because the statements are considered to be inherently reliable. This is not true of admissions. As the Advisory Committee on Proposed Federal Rules of Evidence pointed out:

Admissions by a party-opponent are excluded
from the category of hearsay on the theory
that their admissibility in evidence is the
result of the adversary system rather than
satisfaction of the conditions of the hearsay
rule....No guarantee of trustworthiness
is required in the case of an admission.

Fed. R. Evid. 801(d)(2) advisory committee's note.

The judge did not specifically discuss the reliability of the declarant Coleman, but instead addressed only the reliability of the compliance officer, whose memory he characterized as "accurate in its essential particulars." While the compliance officer's ability to correctly appreciate the employee's words and accurately communicate them to the judge is relevant to the probative value to be assigned the statements, the more significant considerations concern the reliability of the declarant--such as, whether the declarant recognized the import of his statement, and whether the declarant had a propensity for veracity. See Morrison-Knudsen, Inc., 13 BNA OSHC at 1123-24, 1986-87 CCH OSHD at p. 36,540.

Although admissions under Rule 801(d)(2)(D) are not inherently reliable, there are several factors that make them likely to be trustworthy, including: (1) the declarant does not have time to realize his own self-interest or feel pressure from the employer against whom the statement is made; (2) the statement involves a matter of the declarant's work about which it can be assumed the declarant is well-informed and not likely to speak carelessly; (3) the employer against whom the statement is made is expected to have access to evidence which explains or rebuts the matter asserted. 4 D. Louisell & C. Mueller, Federal Evidence ї 426 (1980 & Supp. 1990).

Coleman stated that he was assigned by his foreman to work in that location. That is consistent with his presence in the area. As the Secretary points out, it is unlikely and illogical that an employee would leave his crew, go to a different location, disregard a safety railing and warning sign,[[6/]] and perform concrete finishing work, unless someone had instructed him to do that. Because Coleman had no supervisory role and therefore did not set his own work assignments, this case is distinguishable from such cases as Hogan Mechanical, Inc., 6 BNA OSHC 1221, 1223, 1977-78 CCH OSHD І 22,429, p. 27,055 (No. 15438, 1977), in which a working foreman told his boss that he would be working at one site and then took it upon himself to proceed to another jobsite, where an OSHA inspection was conducted.

To cast doubt on Coleman's reliability, DiLandro testified, without objection, that foreman Nesbit had told him that "this is the second or third time that Mr. Coleman hasn't followed instructions. . . ." However, in light of the factors mentioned above, we conclude that Coleman's statements that he was assigned to work there are reliable. Having made this determination, the next question is whether they are more reliable than conflicting statements in evidence.

F. Weighing the Conflicting Evidence

As noted above, DiLandro's testimony on direct examination that he "verified" with foreman Nesbit that he had not authorized Coleman to be in that area[[7/]] was introduced to rebut Coleman's statement that he had been assigned by his foreman to work there.

The issue therefore comes down to the relative credibility of two out-of-court declarants, Coleman and Nesbit. The Commission stated in Continental Electric Co., 13 BNA OSHC 2153, 2155 n. 6, 1989 CCH OSHD І 28,493, p. 37,756 n.6 (No. 83-921, 1989), "[a]s an out of court declaration, the employee's statement [to the Secretary's industrial hygienist] inherently has less probative value than would the employee's own testimony and is not necessarily entitled to dispositive weight." That is because the judge has no opportunity to assess the credibility of the declarant and the opposing party has no chance to cross-examine. Morrison-Knudsen, Inc., 13 BNA OSHC at 1123-24, 1986-87 CCH OSHD at p. 36,540. While the judge here found the compliance officer to be a credible witness (but was silent as to DiLandro), he could not make a credibility determination between the two out-of-court declarants, Coleman and Nesbit.

Each party argues that adverse inferences should be drawn against the other party for failing to produce or explain the absence of Coleman or Nesbit at the hearing. Regina argues that it would be unfair for a violation to be upheld on the basis of out-of-court statements where the Secretary made no showing that Coleman was not able to attend the hearing to testify. That does not affect the admissibility of the statements because "Rule 801(d)(2) . . . reflects a common sense view that statements of a principal actor should generally be received rather than excluded from evidentiary consideration. Because of their value, such statements are receivable whether or not the declarant is available or appears as a witness." 4 J. Weinstein & M. Berger, Weinstein Evidence, І 801(d)(2)[01] (1990).

Regina itself could have called Coleman as a witness (for it was in as good a position as the Secretary to do so) to rebut the compliance officer's testimony, but it did not. More significantly, as noted by the Secretary, Regina could have call on foreman Nesbit to rebut the compliance officer's testimony. However, Regina did not, despite the fact that its witness list, filed less than a week before the hearing, had "William Nesbit, employee" as its second entry. Instead, in an attempt to refute the compliance officer's testimony, Regina presented only DiLandro's testimony about Nesbit's out-of-court statement to him.

We therefore find that Regina had an opportunity to test the reliability of Coleman's statements, but failed to do so. Nesbit's "verifying" statement to DiLandro is self-serving and lacks the assurances of reliability present in Coleman's comments.

It is unfortunate that neither Coleman nor Nesbit was called as a witness. Nevertheless, although Coleman's statements to the compliance officer are inherently less probative than the employee's own testimony would have been, that evidence does rise to the level of establishing Regina's knowledge by a preponderance of the evidence when weighed against Regina's rebuttal evidence. Although she has met her burden of proof, the evidence presented by the Secretary here is "obviously at the outer limits of sufficiency."Astra Pharmaceutical Products, Inc. v. OSHRC, 681 F.2d at 73 n. 9.

Therefore, we conclude that, based on Coleman's statements as testified to by the compliance officer, whose memory the Judge credited, the Secretary has established by a preponderance of the evidence that Regina, through its foreman Nesbit, knew of the violative condition.[[8/]]

G. Regina's Rebuttal Evidence

In a section 5(a)(1) case, an employer can rebut the Secretary's showing of knowledge and feasible means to eliminate the hazard, [[9/]] by establishing that the employee's conduct was unpreventable because the employer took all necessary precautions to prevent the occurrence of the cited condition[[10/]] E.g., General Dynamics Corp.v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979); Western Massachusetts Electric Co., 9 BNA OSHC 1940, 1945, 1981 CCH OSHD І 25,470, p. 31,766 (No. 76-1174, 1981) . Where, as here, the employer defends against a section 5(a)(1) charge by asserting that it had an established work rule designed to prevent the violation, the employer must first show that the rule was adequate to prevent the violation and was sufficiently communicated to its employees. Brown & Root, Inc., 8 BNA OSHC 2140, 2144, 1980 CCH OSHD І 24,853, p. 30,656 (No. 76-1296, 1980); see Western Massachusetts Electric Co., 9 BNA OSHC at 1945, 1981 CCH OSHD at p. 31,766. The employer must also establish that it took steps to discover violations of the work rule and that it effectively enforced the rule in the event of infractions. Id.

Regina argues on review that the judge erred in concluding that it did not successfully rebut the Secretary's showing of knowledge,[[11/]] for it had established each of the elements noted above. Concerning Regina's safety program in general, the evidence shows that Regina: gives each new employee a copy of Regina's written safety rules (written in English and Spanish), and allows the employee time to review the document and sign it; holds weekly safety meetings; and has a written disciplinary program that includes warnings and notices to employees who violate safety rules, with the potential for termination of employment. However, these aspects of Regina's general safety program do not concern the other, more specific, factors that must be established to prove that the condition was unpreventable.

An employer's key to rebutting the Secretary's proof of knowledge in a section 5(a)(1) case is to present proof of an adequate work rule. At the hearing, Regina introduced into evidence a copy of its written safety program, which contains the following work rule, upon which it particularly relies for its rebuttal: "[s]afety belts will be worn 'without exception' when working in high places not protected by guard rails."

Other Regina safety rules, however, such as its rules on ladders and excavations, include particular measurements in feet. We take administrative notice that other employers have addressed the same hazard in their work rules in a much more specific manner. See e.g., Pace Construction Corp.,14 BNA OSHC 2216, 2217 n.5, 1991 CCH OSHD І___ (No. 86-785, 1991) (rule requiring safety belt where no other protection when exposed to fall of 4 feet or more). Moreover, in other section 5(a)(1) cases, the Commission has found work rules to be inadequate for similar reasons. See Little Beaver Creek Ranches, Inc., 10 BNA OSHC 1806 1810-11, 1982 CCH OSHD І 26,125, p. 32,879 (No. 77-2096, 1982) (employees not told how far to keep pipe away from power lines); Brown & Root, Inc., 8 BNA OSHC at 2144, 1980 CCH OSHD at p. 30,656 (instructions to employees not to work under overhead operations "too general to be an effective work rule"). Regina's work rule does not defined "high places," nor is that term defined or explained elsewhere in its safety rules. Therefore, based on all the factors above, we conclude that the work rule upon which Regina relies for its rebuttal is inadequate.[[12/]]

Even if we assume that Regina's work rule was adequate, there is no evidence that Regina took action to discover violations of it. Indeed, it was the failure of Regina's, foreman to discover the hazardous condition that Coleman was exposed to that formed the basis for the judge's rejection of the Regina's rebuttal evidence. See note 11 supra.

Regina contends that its "records show that the employee was provided with a safety belt . . . ." However, the evidence established that several safety belts had been signed out to Coleman's foreman, but none to Coleman himself. Yet, of greater significance than how the belts were signed out is foreman Nesbit's failure to ensure that Coleman was wearing a safety belt. As established by Coleman's statement to the compliance officer, the foreman had brought him to the location at issue and assigned him to work there. Therefore, the foreman should have observed that Coleman was not wearing a safety belt, and he should have ordered Coleman to put on a safety belt.

Based on all the factors discussed above, we conclude that Regina's safety program was inadequate, and that Regina did not rebut the Secretary's proof of knowledge and feasible means to eliminate the hazard by establishing that the violative condition was unpreventable. Accordingly, there being no other section 5(a)(1) elements in dispute, we affirm the judge and conclude that Regina had knowledge that its employee was exposed to a recognized fall hazard, and chat it violated section 5(a)(1) of the Act.

III. Penalty

Under section 17(j) of the Act, 29 U.S.C. ї 666(j), the factors for the Commission to consider in assessing a penalty are:
the size of the employer; the gravity of the violation; the good faith of the employer; and the history of previous violations.

The judge found that the $400 penalty proposed by the Secretary was inappropriate because of "Regina's good faith as indicated by the stipulations and its substantial safety program," such as its handout of safety rules issued to new employees and its weekly safety meetings. He assessed a penalty of $250. The Secretary does not take issue with that assessment.

Based on the penalty factors in section 17(j) of the Act, 29 U.S.C. ї 666(j), we agree with the judge that a penalty of $250 is appropriate, and we assess that amount for the violation of section 5(a)(1)

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: May 15, 1991

ANN MCLAUGHLIN, SECRETARY OF
LABOR
U. S. DEPARTMENT OF LABOR

Complainant

REGINA CONSTRUCTION CORPORATION

Respondent

Docket No. 87-1309

APPEARANCES:

MICHAEL ROSENTHAL, ESQUIRE
U.S. Department of Labor
Office of the Solicitor

For the Complainant

LOUIS FIREISON, ESQUIRE

For the Respondent

DECISION AND ORDER

TENNEY, JUDGE

I. PROCEDURAL HISTORY

This case arises from an inspection of a construction project for an addition to the Washington Hospital Center in Washington, D.C. Regina Construction Co. ("Regina") was the concrete placement subcontractor. As a result of the inspection, Regina was issued two citations for alleged violations of the Occupational Safety and Health Act,

29 U.S.C. 651-678 ("the Act").

The first citation was for alleged "serious" violations. Still at issue under that citation are alleged violations of: (1) section 5(a)(1) of the Act, based an falling hazards to an employee performing concrete finishing work; (2) 29 C.F.R. 1926.450(a)(1), based on alleged falling hazards to employees who did not use a ladder for access to the top of two columns where concrete was to be placed; and (3) 29 C.F.R. 1926.651(g), based on alleged failure to protect employees by excavating a soil back to the "angle of repose." The second citation alleges an other than "serious" violation of 29 C.F.R. 1926.152(d)(2), because no fire extinguisher was located within a prescribed distance from a diesel storage tank.

Regina filed a timely notice of contest to both citations and the proposed penalties. Both parties filed formal pleadings. A hearing was held on February 2, 1988, in Washington, D.C. Both parties were given a full opportunity to present witnesses and evidence, and to cross-examine the other party's witnesses.

II. DECISION

Citation 1, Item 1: Section 5(a)(1) of the Act

1. Regina Construction Corporation is a corporation with a principal place of business located in Alexandria, Virginia. It employs about 61 employees. About 39 employees were at its workplace at the Washington Hospital Center. It is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. 642(5). (Pleadings)

2. Regina's Washington Hospital Center workplace was inspected by OSHA compliance officer John Wiseman ("the inspector") on June 26 and 29, 1988. Testimony of Mr. Wiseman, (Tr. 11, 69); Ex. C-2, 4, 6, and 8.

3. Mark Coleman was employed by Regina in the morning of June 20, 1987, and was doing concrete finishing work ("rubbing") on a wall of a shaft opening in the workplace while standing near the edge of a floor, about 24 feet above ground. Testimony of Mr. Wiseman (Tr. 12, 16); Ex. C-1.

4. Coleman was working beyond a safety railing which had a large, clearly visible sign attached that stated, "Danger, Keep Out." Coleman was not using a safety belt or other personal protective equipment. He was exposed to a fall hazard of 24 feet. Testimony of Mr. Wiseman (Tr. 16-17, 31, 35) ; Ex. C-1.

5. Regina recognized the hazard to an employee working in a high place, was exposed to 24 feet, and that in the absence of guardrails safety belts were to be worn. Ex.R-1, General Safety Rule 2)

6. A fall by an employee of 24 feet would likely cause serious physical harm. There was a risk of broken bones or even death. Testimony of Mr. Wiseman (Tr. 17- 18)

7. Mr. Coleman was performing the concrete finishing work in question in an area that was authorized by Mr. Nesbit, the foreman. There was conflicting testimony on this. Mr. Wiseman, the compliance officer, testified that Mr. Coleman had told him that his foreman, Mr. Nesbit, had just left, after bringing him to the location and giving him his work assignment. He also testified that in the course of the inspection he and Mr. DiLandro, Regina's superintendent, passed Nesbit on the way to the shaft opening where Coleman was working and that Nesbit was just leaving the general vicinity of the shaft opening. Knowledge by Nesbit was inferred from these facts. Testimony of Mr. Wiseman (Tr. 19, 20) On the other hand, Mr. DiLandro testified that he verified with Nesbit that Coleman was not authorized to be in the area and had been dismissed for that reason; he further testified that he instructed Nesbit to have the concrete finishing (rubbing) crew rub out the walls, but that no rubbing was required in the area where Coleman was working because the walls there were to be covered with brick. No other employees of Regina were working in this area. Testimony of Mr. DiLandro (Tr. 117, 118)

Regina complains that the Coleman statement is hearsay. However, the statement concerned the scope of his employment, and is therefore admissible and reliable. It qualifies as an admission. FRE Rule 801(d)(2)(D). See also FRE Rule 805 (the otherwise double hearsay of Nesbit would also qualify as an admission). Moreover, the Coleman statement is corroborated in some measure by the physical presence of Nesbit in the area in question, Regina, however, seeks to undercut the compliance officer's identification of the foreman by noting that Mr. Wiseman's testimony that the foreman was a white man conflicted with that of Mr. DiLandro that the foreman was black. (Tr. 25, 116) I am convinced, however, that the memory of Mr. Wiseman was accurate in its essential particulars.

8. Mr. Coleman was not wearing a safety belt. See Paragraph No. 4. It is also unclear whether he was issued one. There is testimony that one was issued for Coleman. Testimony of Mr. DiLandro (Tr. 113, 114) But the same testimony indicates that it is actually the foreman who signs for safety belts and picks them up. It also noted Regina does not practice work with safety belts because they tend to be "inefficient", and Regina tries to put employees in position where they are unencumbered. Testimony of Mr. Gates (Tr. 108, 109)

9. Regina through Nesbit knew, or should have known that Coleman was not wearing a safety belt.

10. The proposed penalty of $400 was calculated in accordance with OSHA guidelines, but the proposed penalty was reduced by 20 percent in order to select an adjustment in the "good faith" factor resulting from the withdrawal of Citation 1, item 2(a). Stipulations (Tr. 20, 42)

11. Feasible means existed of abating the recognized fall hazard. The foreman, who knew of Coleman's hazardous situation, could have ordered him to leave the area or to use a safety belt and lifeline. (Ex. R-1, Rule 2); testimony of Mr. DiLandro (Tr. 22, 113-114)

12. The $400 penalty that is proposed by the Secretary is inappropriate in light of Regina's good faith as indicated by the stipulations and its substantial safety program. For example, the evidence indicates that each employee was given a copy of Regina's safety rules upon being hired, was given enough time to review properly the document and was required to sign it. The employee's understanding of the safety rules was checked. Weekly safety meetings were held. (Tr. 100-103) Safety belts and lifelines were available to the employees and they were clearly on notice to use them if working in high places without guardrails. A penalty of $250 if appropriate in light of the gravity of the violation, Regina's size, the lack of previous violations shown, and its degree of good faith.

13. There is a threshold issue involving the Secretary's amendment of citation 1, item 1, in the Complaint to allege a violation of section 5(a)(1) of the Act instead of 29 C.F.R. 1926.28(a). Regina objected to the amendment in its Answer on the grounds that an amendment in the Complaint would be untimely, that Regina had not received a citation alleging a section 5 (a) (1) violation, and thus that it would suffer incurable harm. The matter is not pressed in Regina's brief, but the brief argues on the premise that 29 C.F.R. 1926.28 (a) is alleged An amendment of the original citation in the complaint is expressly permitted under the Commission's Rules of Procedure. 29 C.F.R. 2200.35 (f). See also National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C.Cir. 1973) (liberal amendment of original charge is permitted).

14. Section 5(a)(1) of the Act is applicable here rather than 1926.28 (a). No other construction standard indicates the need for personal protective equipment regarding the falling hazard here (24 feet). L.E. Myers Co., High Voltage Systems Div., 12 OSHRC 1609, 1611-14 (Rev. Com. 82-1137, 1986), rev'd on other grounds, 818 F.2d 1270 (6th Cir. ), cert. denied, 108 S.Ct. 479 (1987). See also United Auto Workers v. General Dynamics, Land Systems Division, 815 F.2d 1570 (D.C. Cir. 1987); cert. den. (U.S. S.Ct. No. 87-260) (correlative duty to comply with section 5(a)(1) of the Act when a standard applies).

Section 5(a)(1) provides:

Each employer. . . shall furnish to each of
his employees employment and a place of employ-
ment which are free from recognized hazards that
are causing or are likely to cause death or
serious physical harm to his employees.

In order to prove a section 5(a)(1) violation, the Secretary must show that a condition or activity in the employer's workplace presented a hazard to employees, that the employer or its industry recognized that hazard, that the hazard is likely to cause death or serious physical harm and that feasible means existed to eliminate or materially reduce the hazard. United States Steel Corp., 12 BNA OSHC 1692, 1697-98 (Rev. Com. 79-1998, 1986) The Secretary proved all elements.

15. In order to show a recognized hazard, the Secretary must prove that there was a preventable condition in the workplace over which the employer reasonably can be expected to exercise control. E.g., Pelron Corp., 12 BNA OSHC 1833, 1835 (Rev. Com. 82-388, 1986). Regina recognized such a hazard-- the hazard of an employee working in proximity to a 24-foot fall hazard without fall protection--as shown by its safety rule quoted above (Paragraph No. 5). The Secretary also must show that Regina knew, or could with the exercise of reasonable diligence have known, of the existence of the violative conditions in its workplace. See, e.g., Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976). The actual and constructive knowledge of a foreman may be imputed to his employer. Dun-Par Engineered Form Co., 12 OSHC 1962, 1965-66 (Rev. Com. 82-928, 1986). The foreman's knowledge has been imputed here. Paragraphs Nos. 7, 8, and 9.

16. Regina argues that it lacked knowledge of Coleman's exposure because it resulted from an isolated instance of employee misconduct that was contrary to the foreman's instructions. The argument is unpersuasive. The foreman had just seen and spoken to the exposed employee and saw, or should have seen, that he was exposed to the fall hazard. Paragraph No. 7

17. Finally, it should be noted that to prove the existence of feasible means of reducing or eliminating the hazards, the Secretary must: (1) establish the type of conduct necessary to avoid citation under similar circumstances and (2) demonstrate the feasibility and likely utility of such conduct. E.g., United States Steel Corp., supra, 12 BNA OSHC at 1700. Here, the necessary employer conduct would be for Nesbit to have abated the hazards by ordering CoIeman out of the hazardous area, or ordering him to use a safety belt and lifeline. The feasibility and likely utility of that step is indicated by the fact that Superintendent DiLandro did order Coleman to put on that equipment.

18. The Secretary has proved all the elements of a section 5(a)(1) violation; this item is affirmed. A penalty of $250 has been found appropriate.

Citation 1, Item 2b--1926.450(a)(1)

19. Regina was pouring concrete columns about 11 to 14 feet high. The forms were wood planks, and they were braced together with horizontal metal braces ("column clamps"). Testimony of Mr. Wiseman (Tr. 44-46, 125-26)

20. Two employees climbed the metal bracing of the form work to "the top portion" of a column that was about 14 feet high. They stood on bracing near the top to place concrete, and wore safety belts and lifelines in doing so. Testimony of Mr. Wiseman (Tr. 46-48, 128-30); that of Mr. DiLandro (Tr. 128-130)

21. The metal braces provided safe access for the employees to their work. The braces were three-inches wide and there were three-by-four inch back boards between them and the form work, so that the employees had about six and a quarter inches of toe clearance in front of the wood forms. Testimony of Mr. DiLandro (Tr. 126-27) The braces were "solid construction."

22. Regina's employees used means of access that were as safe as ladders. The inspector noted potential hazards associated with climbing up the braces and working from them, in that the braces "normally" are not evenly spaced, as are ladder rungs; that they are slippery and difficult to hold on to while working; and that they do not have the same toe clearance that ladders provide. (Tr. 46-47; 65-66) However, Superintendent DiLandro testified that ladders also would create hazards. The ladders that the inspector discussed would face the form work and lean against it at an angle. (Tr. 47-48) DiLandro testified that in fastening the braces, which is a two-man operation, the employees "would literally knock each other off the ladder." (Tr. 126) DiLandro testified at one point that it would not be dangerous to use ladders on the columns, but the hazard of employees knocking each other off the columns, which was not disputed, made the use of ladders no safer than the employee's methods.

23. No one ever fell from one of the clamps on a column - Testimony of Mr. DiLandro (Tr. 134), and there was no evidence of anyone falling from a column in the construction industry under these circumstances.

24. The Secretary alleged that Regina violated the named standard in that a ladder was not used to give safe access to the top of two columns where concrete was being placed, and permanent or temporary stairways or suitable ramps or runways were not provided. Complaint, Par. IX.
The allegation tracks closely the cited standard which reads as follows:

1926.450 Ladders.

(a) General requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

To the extent that safe access to the columns may be considered an issue, there is a violation of the standard's terms. But as suggested by Regina, it is de minimis in nature. No abatement order is entered since there would be no improvement of safety, and no penalty is assessed. Cf. Ocean Electric, 1985 CCH OSHD Par. 27,439 (adm. law judge).

25. What mainly was in issue was not the access to the top of the columns, but the use of the braces of the forms as an adequate work platform. (Tr. 45, 129) As to this, there is no persuasive evidence that the options of a ladder or a scaffold, which were mentioned (Tr. 45), were superior in safety than than the safety belts and lanyards used Regina, nor was there argument on the possible application of any different standard dealing with the adequacy of the work platform.

Citation 1 Item 3: section 1926.651(g)

26. Regina was charged with a violation of 29 C.F.R. 1926.651(g) in that the bank of an excavation for "footers" about seven-feet high had not been excavated to the "angle of repose".

Section 1926.651 in pertinent part reads as follows:

1926.651 Specific excavation requirements

* * * * *
(g) All slopes shall be excavated to at least the angle of repose except for areas where solid rock allows for line drilling or presplitting.

The term "angle of repose" is defined in section 1926.653(b) as follows:

The greatest angle above the horizontal place at which material will lie without sliding.

27. Two Regina employees were working near the bottom of the wall of an excavation cleaning mud from a footer. The wall varied in height from about five to seven feet, and was about vertical along the 30-foot area where they worked. Testimony of Mr. Wiseman (Tr. 67- 71) that of Mr. DiLandro (Tr. 144); Ex. C-5 and 6. A "footer" is a concrete base for a structure (Tr. 85) There was no shoring on the bank. Testimony of Mr. Wiseman (Tr. 75)

28. The excavation had been opened by Metrix, and turned over to Regina on April 6, 1987. At the time of the inspection it had been open a minimum of three months. There was no erosion of the soil within this time. Testimony of Mr. DiLandro (Tr. 137) See also that of Mr. Wiseman (Tr. 83)

29. Since the soil lay without sliding or erosion for three months, it is found to be at "repose" within the meaning of the regulatory definition. See Paragraph No. 26.

30. The composition of the soil was rock. Testimony of Mr. DiLandro (Tr. 139) Soil borings were conducted daily on the job. The soil reports indicated that at that elevation there was a rocky, shaley rock formation. Testimony of Mr. DiLandro (Tr. 138-139) The testimony of the compliance officer was to the contrary. But he took no soil samples. He did note that there were some pipes going through the area which suggested previously excavated soil. Testimony of Mr. Wiseman (Tr. 86) However, the compliance officer conceded that there was no indication of erosion, even though the excavation had been open for several weeks.(Tr. 88) The testimony of Mr. DiLandro, is credited on the composition of the soil.

31. Since the soil was at repose, there was no violation of section 1926.651(g). Moreover, since the soil was rock or shale, the angle of repose is in any event ninety percent or vertical. See Table P-1, section 1926.652.

Citation 2, Item 1: 1926.152(d)(2)

32. There was a large diesel storage tank outside (next to the ramp at ground level) at the site. Testimony of Mr. Wiseman (Tr. 91); Ex. C-8

33. Diesel fuel is a flammable liquid (official notice)

34. There was no portable fire extinguisher within 75 feet of the tank. Testimony of Mr. Wiseman (Tr. 91)

35. Regina employees had access to the resulting hazard because there were Regina employees in the area continuously. The tank was next to the area where most of those employees would come in and out of the excavation. Testimony of Mr. Wiseman (Tr. 91)

36. Regina knew of the absence of a portable fire extinguisher. One had been put in the area, but it was taken away to be recharged. Testimony of Mr. DiLandro (Tr. 151)

37. The fire hazard was not "serious" because, if there were a fire, the employees could quickly evacuate the area, and there was also a berm around the area.

38. The cited 1926.152(d)(2) provides:

At least one portable fire extinguisher having
a rating of not less than 20-B units shall be
located not less than 25 feet, nor more than
75 feet, from any flammable liquid storage
area located outside.

Regina had no portable fire extinguisher within 75 feet of the flammable liquid storage area, which was located outside. The dispute between the parties was whether Regina's other fire protection equipment eliminated the fire hazard or rendered it de minimis. Mr. DiLandro testified that there was a fire hydrant about 50 feet from the fuel tank, and a frost-free hand hydrant about 50 feet in the opposite direction. He also testified that the tank was surrounded by a berm, so that any leaking diesel fuel could not leave its confinement, and that the soil nearby was sandy and could be shoveled to stop a fire. (Tr. 152) He also testified that the hydrant could be fitted with a fog mist device and that with it, the heat and oxygen of a burning liquid fire could be eliminated so that the fire could be put out. However, the fog mist device was not attached to the hydrant, although Mr. DiLandro believed a fire apparatus vehicle would have the necessary equipment. (Tr. 153-154) Thus, Regina did not establish that its fire hydrants would make a portable fire extinguisher superfluous, i.e., that the hydrants would be as effective as a portable fire extinguisher with regard to all fire emergencies covered by the standard.

39. The citation item is affirmed as a violation that is not "serious", but no penalty is assessed.

SO ORDERED.

PAUL A. TENNEY
Judge, OSHRC

DATED:May 25, 1988

Washington, D.C.

FOOTNOTES:

[[1/]] That provision requires an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

[[2/]] Item 1 originally alleged a violation of section 1926.28(a), which requires the use of personal protective equipment where there is "exposure to hazardous conditions" and a standard in 29 C.F.R. Part 1926 indicates the need for using such equipment to reduce the hazards to the employees. L.E. Myers Co., 12 BNA OSHC 1609, 1614, 1986-87 CCH OSHD І 27,476, p. 35,604 (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). Because Part 1926 only requires protective measures for heights of more than 25 feet above the ground (see 29 C.F.R. ї 1926.105(a)), section 1926.28(a) does not apply to the 24-foot fall distance here. Id.
In the complaint, the Secretary amended the item to allege a violation of section 5(a)(1). The judge concluded that the amendment was proper pursuant to Rule 35(f) of the Commission's Rules of Procedure, 29 C.F.R. ї 2200.35(f), which permits the Secretary to amend a contested citation once, as a matter of course, in the complaint, under circumstances such as these.

[[3/]] Review was directed on whether the judge erred in finding that Regina violated section 5(a)(1) and had knowledge of the violative condition. However, Regina raises on review only the issues of whether the Secretary proved its knowledge and, if so, whether Regina successfully rebutted the Secretary's showing of knowledge and of a feasible means to eliminate the hazard.

[[4/]] "[W]ithin the scope of employment" has been expanded by the courts to include matters "related to" those within the scope of employment. E.g., Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 292 F.2d 775, 784 (D.C. Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243 (1961) (Model Code predecessor of Rule applied). See Fed. R. Evid. 801(d)(2)(D) advisory committee's note.

[[5/]] Exceptions to the hearsay rule are contained in Rule 803 of the Federal Rules of Evidence, "Hearsay Exceptions; Availability of Declarant Immaterial," and Rule 804, "Hearsay Exceptions; Declarant Unavailable."

[[6/]] So far as DiLandro knew, Coleman understood English. Therefore, Coleman should have been able to read the "Danger, Keep Out" sign.

[[7/]] That out-of-court "verifying" statement by Nesbit to DiLandro would have been inadmissible hearsay had the Secretary's counsel objected to it, for an admission by a party is non-hearsay only if offered by an adverse party. But, because the Secretary's counsel did not object to it, the Commission can consider the evidence. Unless it is objected to at the hearing, hearsay evidence is admissible. See Rule 103(a) of the Federal Rules of Evidence.

[[8/]] Because we base our finding of employer knowledge on the evidence discussed above, we need not address the judge's consideration of that part of the compliance officer's testimony that concerned a possible observation of foreman Nesbit and the evidence presented by Regina to rebut that testimony.

[[9/]] In his decision, the judge found that the Secretary proved that feasible means existed to eliminate the recognized fall hazard, because she established that ''[t]he foreman [Nesbit], who knew of Coleman's hazardous situation, could have ordered him to leave the area or to use a safety belt and lifeline."

[[10/]] Although the employer's duty to prevent hazardous conduct and the requisite elements of an effective safety program are the same in cases arising under section 5 (a) (1) of the Act and section 5(a)(2) of the Act (requiring compliance with OSHA standards and regulations), those types of cases differ with regard to who has the burden of proof as to preventability. See Western Massachusetts Electric Co., 9 BNA OSHC 1940, 1944-45, 1981 CCH OSHD І 25,470, p. 31,765-66 (No. 76-1174, 1981). Under section 5(a)(1) of the Act, as is the case here, the burden is on the Secretary to prove that there was a hazardous condition in the workplace that was preventable, or could have been eliminated by feasible means. Id. Under section 5(a)(2) of the Act, the burden is on the employer to plead and prove as an affirmative defense that it could not have prevented the employee's misconduct. Id.

[[11/]] The judge found "unpersuasive" Regina's argument that it lacked knowledge because the condition resulted from isolated employee misconduct. He then noted that "[t]he foreman had just seen and spoken to the exposed employee and saw, or should have seen, that he was exposed to the fall hazard." In his discussion of Regina's good faith for penalty purposes, the judge considered some of the factors upon which Regina relies here in its attempt to rebut the Secretary's proof of knowledge and feasible means of eliminating the hazard.

[[12/]] In his decision, the judge did not specifically address the issue of whether the work rule was adequate for the purpose of rebutting the Secretary's proof of knowledge and feasible means of eliminating the hazard. However, in discussing Regina's good faith for penalty purposes, the judge stated that Regina's employees "were clearly on notice to use [safety belts and lifelines] if working in high places without guardrails." That statement was not intended to address the effort to rebut at issue here.