SECRETARY OF LABOR,
Complainant,

v.

R & R BUILDERS, INC.,
Respondent.

OSHRC Docket No. 88-0282

DECISION

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

BY THE COMMISSION:

In late 1987, the Occupational Safety and Health Administration ("OSHA"), of the United States Department of Labor, inspected a construction site in Boca Raton, Florida, where R & R Builders, Inc. ("R & R Builders" or "the Company"), a drywall subcontractor, was installing interior walls or partitions.  Thereafter, the Company received a four-item citation alleging fall protection and safety program violations.  Because the Company had a history of OSHA fall protection violations and safety program deficiencies, OSHA classified the citation as willful.  On the same basis, the administrative law judge later affirmed all four items as willful violations.  For the following reasons, we affirm only one item as a willful violation, affirm the remaining three items as violations of lesser degree, and assess appropriate penalties.

I. Background and Facts

Two items, the first of which presents two allegations, concern the Company's safety program.  Item 1a alleges failure to implement the kind of program required by 29 C.F.R. § 1926.20(b)(1). [[1]]  Item 1b alleges failure to conduct the safety inspections required by § 29 C.F.R. § 1926.20(b)(2).[[2]]  Item 2 alleges failure to give employees the safety instructions required by 29 C.F.R. § 1926.21(b)(2) [[3]].

The remaining two items address fall hazards.   Item 3 alleges failure to use safety belts, as required by 29 C.F.R. § 1926.105(a). [[4]]  Item 4 alleges failure to install guardrails on a floor perimeter and failure to maintain a midrail on a platform, as required by 29 C.F.R. § 1926.500(d)(1).[[5]]

It is item 3 that we affirm as a willful violation.  In our opinion, as we will explain, the other three items are lesser violations, capable of being classified as either serious or nonserious, but undifferentiated by the Secretary in this case.

A. Prior Citations and Settlement Agreements

When issued, the citation in this case represented the fourth time in two years that OSHA had cited R & R Builders for violations of fall protection standards.  The citation also represented the fourth time in two years that OSHA had directed the Company's attention to deficiencies in its safety program; the three earlier citations for fall protection violations had resulted in settlement agreements to correct certain safety program deficiencies.

The first citation, issued in April 1986, alleged that R & R Builders failed to use safety belts as required by 29 C.F.R. § 1926.28(a). [[6]]  The parties settled the citation by entering into an agreement that stated:  "The employer agrees to continue improving the safety knowledge of his safety director."  Jose Sanchez, the OSHA area director who negotiated the agreement, testified that Greg Rogers, one of the owners of R & R Builders, also verbally agreed to improve the safety knowledge of his foremen and to implement "a rigid safety program."

The second citation, issued in July 1986, alleged that R & R Builders failed to install guardrails on a platform as required by 29 C.F.R. § 1926.500(d)(1), see supra note 5.  Again, the parties reached an agreement on safety program improvement:

The [e]mployer agrees to conduct regular safety inspections of his worksites.
The [e]mployer agrees to train his employees in the recognition and avoidance of on the job hazards.

The third citation, a repeat citation issued in April 1987, alleged two instances of failure to use safety belts, as required by § 1926.28(a), see supra note 6.  The parties made a third agreement for safety program improvement:

The employer agrees to conduct regular safety meetings.

The employer agrees to train the employees for hazard recognition and avoidance on the job.

The employer agrees to conduct weekly inspections and to correct deficiencies found.

Norman Greenspan, the OSHA safety supervisor who negotiated this agreement (acting for area director Sanchez), testified that he discussed training and discipline with Rogers.  Greenspan told Rogers that, his Company having received a repeat citation, he would have to implement a system of appropriate disciplinary measures for failure to use fall protection, so as to emphasize to the Company's employees that they must make proper use of fall protection. [[7]]

B. The Recent Inspection

When the OSHA compliance officer, John MacDonald, arrived at the Boca Raton building project, R & R Builders' crew of drywall installers was on the fourth floor.  The perimeter of the floor was open and unguarded.  As compliance officer MacDonald approached the building at the ground level, he looked up and noticed several members of the crew standing a few feet from the unguarded floor perimeter.  The employees were waiting for a crane-load of drywall to be landed at the perimeter.

MacDonald then ascended to the fourth floor, where he observed these employees unloading the drywall from the crane platform. Its one open side just overlapped the floor edge by approximately 1 foot, and on one of the three guarded sides of the platform, the guardrail was deficient; a midrail was missing and an employee was standing near the gap.  That employee and one other were straddling the platform and floor edges, and were sliding the pieces of drywall to two other employees, who were standing a few feet inside the floor perimeter.  MacDonald was concerned that the crane platform could shift and dump the two employees who were standing on it, and he wanted adequate fall protection for the whole crew.  His concerns were that the floor perimeter lacked guardrails, a midrail was missing from the platform, and the employees did not have safety belts.

Based on extensive experience as an inspector of construction projects, [[8]] and on the experience of having seen this particular project, compliance officer MacDonald believed that safety belts could have been tied off to permanent structures within the building, such as formwork or pipes.  He testified that, if the lanyards of the belts were longer than 6 feet, to permit employees to reach the building interior, safety belts might not have been a complete solution.  He believed, however, that 6-foot lanyards could have been used at the perimeter; otherwise, safety nets or catch platforms could have been used.

MacDonald brought his observations to the attention of the crew's foreman, general superintendent Peter George, who immediately and of his own accord stopped the work.  George informed the compliance officer that there were no safety belts available at the worksite.  Also, according to the compliance officer, the superintendent indicated that there were no instructions in the use of safety equipment or in the avoidance of hazards, no safety meetings or job-site inspections, and "no format of safety at all."  The compliance officer concluded that the safety program was "inadequate for the [C]ompany" based on his discussion with George, his own observations, and discussions with other employees, including Stephen Key, the labor foreman for the crew.  According to MacDonald, Key did not show any awareness of a rule requiring fall protection.

Later, MacDonald spoke to the Company's owner, Rogers.  According to MacDonald, Rogers also stated that there were no safety belts available.  Furthermore, according to MacDonald, Rogers asked him what would constitute a safety program.  At the hearing, MacDonald testified that, in his opinion, the fact that Rogers asked this question indicated that the Company did not have a safety program.

C.  R & R Builders' Overall Safety Program

Prior to the inspection in this case, R & R Builders had taken some steps toward training its employees.  When hired, each employee received a copy of the Company's safety rules and enforcement practices.   Each employee was instructed to read the rules and practices.  Thereafter, the hiring supervisor discussed them with him.  Several categories of safety rules touched generally on fall hazards: "Scaffolding," "Safety Belts," and "Ladders."  The rules in the "Safety Belts" category were:

(1) Belts and proper lines will be used when necessary.  If any questions arise get in touch with office immediately.

(2) Make sure lines are secured to a solid permanent part of the building. Included in the enforcement practices were warnings of dismissal for failure to wear personal protective equipment, failure to report accidents and injuries, and failure to perform work in a safe manner.

These rules and the employee signature sheets acknowledging their receipt constituted most of R & R Builders documentation of its safety program.[[9]]  In addition, there was documentation of a safety training seminar that the Company asked OSHA to conduct in May 1987, after the third citation and informal settlement.  According to the documentation, which is in evidence, nine supervisors and two regular employees attended.   Fall protection was addressed.

The Company had an officer in charge of safety, Vice President of Operations John Kaye.  After assuming responsibility as the safety officer in early 1986, vice president Kaye had sought OSHA's help to set up an adequate safety program, had attended two OSHA seminars on hazard recognition and avoidance, and had attempted to implement a program of instruction reflecting whatever OSHA told him and any other information he could find. [[10]]  In addition, Kaye revised the Company's safety rules and enforcement practices, producing the above-mentioned rules on fall protection that were in effect during the inspection in this case. His understanding was that fall hazards exist whenever employees work within 10 feet of an unguarded floor edge and that some form of fall protection must be used.  Therefore, on jobsites other than the one involved here, Kaye had discussed with foremen and employees the use of guardrails, scaffolding, safety nets, and safety belts.

As one of his continuing duties, vice president Kaye conducted meetings of foremen (and, occasionally, a few other employees), at which he discussed safety topics including fall protection requirements.  The discussions took anywhere from 10 minutes to 1 1/2 hours.  The record indicates that the meetings were irregularly held; sometimes, several months passed without one.  The vice president expected the foremen to teach the other employees, watch for hazardous conditions and practices, and report them to Company officials.  Vice president Kaye also conducted on-site safety inspections on a weekly or twice-weekly basis, when delivering a payroll and when attending the project meeting of contractors and subcontractors at the jobsite.   While the project involved in this case was underway, however, vice president Kaye was out of the country.  During this time, the Company's owner, Rogers, was performing the duties of safety officer.

D. The Company's Safety Program on the Boca Raton Project

The record indicates that Rogers had attended a safety seminar at an unidentified convention in 1985 and had subsequently participated in on-site safety inspections.  He had never observed any employee working at a building perimeter, unloading drywall, or needing fall protection, and the Company had not brought safety belts to the Boca Raton jobsite. [[11]]  Rogers' on-site inspections at Boca Raton took approximately 45 minutes to 1 1/2 hours, during which time he observed job progress as well as the safety of the jobsite and the equipment on the jobsite.  He did not, however, observe the safety of the materials on the jobsite since that duty belonged to the general superintendent, George.

Rogers' testimony indicates that, while acting as safety officer, he did not continue having monthly meetings of the foremen.[[12]] During his on-site inspections, however, he did discuss issues of safety.  Whenever he saw any employee deviating from safe practices, Rogers immediately admonished the employee, required that any hazard be corrected, and brought the matter to a foreman's attention. [[13]]

Apparently, based on the record, there were only two safety meetings for the regular employees: one, to discuss licensing for "pin guns," and another, in response to "horseplay."  Whether the crew involved in this case was involved in either of those meetings is unclear; the general superintendent could not recall.  There was no evidence presented that the Company had a program of regular, comprehensive safety meetings for all of its employees.  The one non-supervisory employee who testified, John Curry, had worked as a metal framer during the month since the project had started and indicated in his testimony that there had been no weekly safety meetings since he began work on the project, a month before the inspection.  Curry also testified that he did not know whether there were rules on fall protection.  The testimony strongly suggests that the crew of employees involved in this case as well as the Company's employees in general were supposed to have learned safety by experience on other jobs, by reading the Company's safety rules upon being hired, and by absorbing whatever a foreman might thereafter tell them about the safe way to do a particular job on the project.   Owner Rogers and superintendent George both testified that they would not have permitted employees to work under conditions known to be unsafe.

According to Rogers and George, the crew involved in this case was to drag the crane platform in from the floor perimeter, then "walk on[to] the platform and bring the drywall straight out, and not stay near the edge."  Rogers had inspected the platform for guardrails, which had been intact and complete at the time.  Other fall protection was not needed, he believed, if the crew stayed within the platform, behind the guardrails. [[14]] The testimony of Rogers and George indicates that they had not instructed the crew to use safety belts, or to install any other form of fall protection, while unloading the drywall.  Rogers and George believed that, if the crew followed the procedure that they had planned, the crew would be protected by the platform guardrails.  In George's opinion, this procedure for unloading crane platforms was customary at other worksites.  Nevertheless, George admitted in his testimony that the crew in this case had not dragged the platform into the building interior.

George testified that, prior to the inspection, he had told the crew that safety belts are usually needed for work at building perimeters.   He also testified that, prior to giving instructions regarding the procedure for unloading the crane platform, he had seen employees standing at unguarded perimeters and had told them to get back.  For this operation, however, he judged safety belts unnecessary if the crew stayed behind the platform guardrails.  George was aware, prior to the inspection, that the crew had been having problems with deficient guardrails on the platform, which belonged to another employer.  Nevertheless, either he or his employees had been fixing the guardrails without notifying the other employer.   Finally, George testified that he did not know why the midrail was not fixed on this occasion.

II. The Merits of the Safety Program Items

A. Item 1a, Alleging Noncompliance with 29 C.F.R. § 1926.20(b)(1)

Administrative Law Judge Paul L. Brady found a violation of the cited standard, which attempts to prescribe "[a]ccident prevention responsibilities," but which articulates a generalized requirement, that employers "initiate and maintain such programs as may be necessary to comply with [Part 1926]."  There have been no Commission or court cases interpreting this standard, but court precedent interpreting similarly generalized standards has held that they are not vague and unenforceable if "a reasonable person," examining the generalized standard in light of a particular set of circumstances, can determine what is required, or if the particular employer was actually aware of the existence of a hazard and of a means by which to abate it.  An employer can reasonably be expected to conform a safety program to any known duties. [[15]]

R & R Builders twice agreed "to train the employees for hazard recognition and avoidance on the job."  That is, the Company agreed to teach all employees, laborers and supervisors, what situations are hazardous and what to do about them.   Vice president Kaye, who understood that working within 10 feet of a floor edge presents a fall hazard for which some form of fall protection is needed, could therefore have phrased the Company's written safety rule more specifically than "[b]elts and proper lines will be used when necessary" (emphasis added).  A distance-specific rule could have helped work crews, such as the one involved in this case, to recognize the dangers presented by the task of unloading drywall from a crane platform at an open floor edge.  A specific rule would also have provided a basis for systematic disciplinary action against any laborers or supervisors who infringed the rule. Inasmuch as the OSHA supervisor, Greenspan, had advised the Company's owner, Rogers, to use verbal reprimands, written warnings, and layoffs "if folks just wouldn't listen," the Company knew that disciplinary action could become necessary.

R & R Builders twice agreed "to conduct regular safety meetings."  Despite these agreements, the Company's safety meetings for its foremen were irregularly held, and on this jobsite there was no plan to conduct safety meetings for the ordinary employees.  In its review brief, R & R Builders asserts that safety was discussed when Rogers made his on-site safety inspections.  Rogers, however, testified only that he corrected any foreman or laborer who might be creating a hazard; he did not mention having held meetings of all the employees, and he did not describe any systematic way in which he conveyed safety information to all employees.  Moreover, George explained that, actually, it was the project manager who was holding meetings when Rogers came to the worksite.  Such meetings, not attended by all of the Company's foremen and employees, would not satisfy the Company's agreement "to conduct regular safety meetings."  As the Secretary argues on review, "[t]he lack of a comprehensive written plan [of safety rules] put[s] a special premium on [having] regular and meaningful safety meetings at which problems could be identified and analyzed and safety policy formulated and communicated."  That is, such meetings would "train the employees for hazard recognition and avoidance on the job."

Moreover, Rogers and George, upon realizing that the crew needed to unload drywall in the vicinity of an open floor edge, decided that fall protection would be unnecessary if the crew worked within the platform's guardrails, but the managers disregarded that the crew would have to approach the open floor edge and stand outside the platform's guardrails while pulling the platform into the building.   As noted above, on at least one occasion, George had seen employees working at open floor edges and had told them to get back.  This warning demonstrates a level of awareness sufficient to realize that the drywall-unloading crew also needed safety belts.   The Company should have provided safety belts at the worksite and should have given specific instructions on fall protection during the operation of unloading the drywall.

From the foregoing discussion, it is clear that the Company failed to have an adequate safety program, incorporating all duties of which the Company was aware and covering all of the Company's employees, as required by the cited applicable standard.  See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ¶ 29,239, p. 39,157 (No. 87-1359, 1991), citing Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-31,900 (No. 78-6247, 1981) (elements of the Secretary's case are applicability, noncompliance, employee access, and employer knowledge).  We therefore affirm the judge's decision finding a violation of 29 C.F.R. § 1926.20(b)(1).

B. Item 1b, Alleging Noncompliance with 29 C.F.R. § 1926.20(b)(2)

Judge Brady also found a violation of this standard, on which there is no Commission or court precedent.  The standard, however, states relatively straightforward specifications.  It requires "frequent and regular" inspections of "job sites, materials, and equipment" by "competent persons."  The Secretary does not dispute that weekly or twice weekly inspections would meet the "frequent and regular" specification.   The issue is whether the Company's "job sites, materials, and equipment" were inspected by "competent persons."

From the evidence, the Secretary infers and Judge Brady found that Rogers' weekly or twice weekly jobsite inspections could not nave been adequate, considering that they took only 45 minutes to 1 1/2 hours, during which time Rogers was delivering the payroll and examining job progress as well as checking on safety:  "His presence," the judge stated, "can hardly be deemed that of a designated competent person scrutinizing safety procedures."  Furthermore, the Secretary infers and Judge Brady found that Rogers' inspections must have been ineffective if OSHA could discover a crew of employees working unprotected at an open floor perimeter.  The judge also referred to testimony of Rogers that it was not his responsibility but the superintendent's to check the safety of materials.  Because it appeared that George did not perform any such inspections, the judge found that no one was inspecting materials.[[16]]

R & R Builders does not dispute the judge's finding that materials were not inspected for safety, and on the basis of the evidence we uphold the finding.  The Company does, however, make an argument that is meritorious as to the remaining findings, which are based on inferences.  Specifically, the Company argues that the record contains no evidence reasonably giving rise to inferences that Rogers' inspections of the jobsite and equipment were insufficient within the meaning of the standard.

Although the standard requires employers to delegate inspection responsibilities to an employee, the standard does not proscribe that employee from having other responsibilities within the business or doing several things at once during a jobsite inspection. Nor does the burden of having a number of responsibilities automatically or presumptively make an inspector insufficiently "competent" or attentive to the safety of "job sites, materials, and equipment." Under the standard, therefore, the Secretary must affirmatively prove that there is a deficiency. In this case, however, other than Rogers' admission that he had not been inspecting materials and the indications that George was not doing so, there is no evidence upon which to find a deficiency.

Although a crew was found working at an open floor edge, there is no evidence that the drywall stocking operations were performed frequently enough that Rogers' on-site inspections would have or ought to have coincided with them, and there is no evidence that Rogers' inspections had coincided with them.   Thus there is no evidence that he walked by this or any other crew doing such work, and saw or could have seen employees in the vicinity of a floor edge, but failed to implement changes in the way the crew was performing its operation.  This record as it stands does not establish anything more than a need for better safety training in the recognition of fall hazards and better planning of job tasks to avoid hazards.  In this case, we cannot presume incompetence on the part of the Company's safety inspector when his inspections have never coincided with a particular operation.  The standard's language requiring "frequent and regular" inspections of the "job site" does not reasonably inform an employer that his inspections must be performed at a jobsite.  The standard imposes the concept of a regular schedule, not a special schedule, and points to physical things--the "job site, materials, and equipment"--not the operations themselves.

As the foregoing discussion indicates, therefore, the Secretary proved only on deficiency in the Company's program of safety inspections.  Specifically, as the testimony of Rogers and George shows, the Company was not performing frequent and regular inspections of materials, for the protection of the Company's employees on the worksite, as required by the cited applicable standard.   We therefore find that the Secretary has established the elements of her case.   See, e.g., Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157; Astra Pharmaceutical Products, Inc., 9 BNA OSHC at 2129, 1981 CCH OSHD at pp. 31,899-31,900.  R & R Builders did not present any defense as to its failure to inspect the safety of materials.  Accordingly, on this one basis, we affirm the judge's decision finding a violation of 29 C.F.R. § 1926.20(b)(2).

C. Item 2, Alleging Noncompliance with 29 C.F.R. § 1926.21(b)(2)

Judge Brady found a violation of the standard which, according to H.C. Nutting Co. v. OSHRC, 615, F.2d 1360 (6th Cir. 1980) (unpublished), quoted in A.P. O'Horo Co., 14 BNA OSHC 2004, 2009, 1991 CCH OSHD ¶ 29,223, p. 39,130 (No. 85-369, 1991), "does not outline any particular requirements for a safety program" and which requires only "that an employer inform employees of safety hazards which would be known to a reasonably prudent employer or which are addressed by specific OSHA regulations."  Thus, the standard is not unenforceably vague if it is applied with reference to either a reasonable person test or OSHA standards.  "[S]upervisery personnel [must] advise employees, especially new employees, of the hazards associated with [the] actual dangerous conduct in which they are presently engaging."  National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048, 1056 (8th Cir. 1978).  Evidence that the employees were unaware of particular safety requirements, because of a lack of specific instructions, establishes a violation. John R. Jurgensen Co. v. OSHRC, 872 F.2d 1026 (6th Cir. 1989) (unpublished).

Judge Brady based his finding of a violation on the evidence that R & R Builders generally failed to hold safety meetings for its employees on this jobsite and failed to provide other instruction regarding use of safety belts.  The work crew in this case did not know that safety belts were needed for the work they were doing.  In response, the Company points out that George had generally told employees that they needed a safety belt when standing near a floor edge.  Our reading of this testimony indicates, however, that it refers to occasional correction of employees, not to any systematic training.  In fact, the record indicates that there was no consistent training of the ordinary employees.

The Company's safety belt rule did not incorporate the relevant OSHA requirement for fall protection:  "when workplaces are more than 25 feet above the ground."  See 29 C.F.R. § 1926.105(a), supra note 4.  Also, as we have noted, the Company's rule did not reflect vice president Kaye's understanding that safety belts are required when employees work within 10 feet of a floor edge. Furthermore, the Company's rule was not specific in any respect and metal framer Curry was unable, in his testimony, even to remember whether there was a rule on fall protection.

Moreover, the Company's very general rule evidently did not provide an adequate guideline as to when protection is needed, for Rogers and George both believed safety belts unnecessary for the job task involved in this case and did not tell the work crew to use safety belts when approaching the unguarded floor edge to pull the crane platform into the interior.  As a consequence, George's prior occasional instructions that safety belts must be used at a floor edge, which were not specifically reinforced by the Company's rule, were overridden by specific instructions for a particular task.  Also, as the Secretary points out, "Curry's being told to stay away from the edge and behind guardrails [was] meaningless when there were no guardrails at the perimeter and [the] employees were actually assigned to work near the floor edge."  This is a case of failure by the "supervisory personnel to advise employees. . .of the hazards associated with [the] actual dangerous conduct in which they are presently engaging."   National Industrial Constructors, 583 F.2d at 1056.  For the reasons set forth above, we conclude that the Secretary has met her burden of proof and we affirm the judge's decision finding a violation of 29 C.F.R. § 1926.21(b)(2).

III. The Two Fall Protection Items

R & R Builders does not dispute that it committed fall protection violations, as found by Judge Brady, but contends that the allegation under § 1926.500(d)(1) for lack of guardrails is duplicative of the allegation under § 1926.105(a) for lack of safety belts, because safety belts alone would have eliminated all risk of falling to the ground.  The Secretary counters that "an employer's simultaneous noncompliance with two standards which result in the same general hazard is not necessarily duplicative," because there were distinct deficiencies and distinct forms of abatement.  There was a need for guardrails along the unguarded floor edge and a need for a secure midrail on the platform, as well as a need for safety belts to protect the employees who were straddling the floor and platform edges.   Therefore, the Secretary specifically maintains, her allegations of separate violations are appropriate and well within her prosecutorial discretion.

There can be no dispute that the Secretary has authority to adopt and enforce a specification for a particular abatement measure in a particular circumstance, such as guardrails for open floor and platform edges. [[17]]   If a specifications standard does not provide for any alternative form of compliance, the fact that the employer has implemented an alternative measure instead of the specified measure cannot, in itself, justify vacating a citation.  See Ormet Corp., 14 BNA OSHC 2134, 2139, 1991 CCH OSHD ¶ 29,294, p. 39,204 (No. 85- 531, 1991), compare Stone Container Corp., 14 BNA OSHC 1757, 1760, 1987-90 CCH OSHD ¶ 29,064, p. 38,817 (No. 88-310, 1990) (an alternative protective measure becomes a legal substitute for strict compliance only if authorized by a variance, an established defense, or a settlement agreement); and Cleveland Electric Illuminating Co., 13 BNA OSHC 2209, 2213, 1987-90 CCH OSHD ¶ 28,494, p. 37,762 (No. 84-593, 1989), rev'd on another ground, 910 F.2d 1333 (6th Cir. 1990) (an employer's compliance with a general standard requiring employee training does not excuse noncompliance with a specifications standard mandating a physical form of protection).  Section 1926.500(d)(1), the cited standard which R & R Builders would have us dismiss in this case, does not make compliance with § 1926.105(a), or any other personal protective equipment standard, an exception to its requirements and does not designate safety belts the "equivalent" of guardrails.   See Spancrete Northeast, Inc., v. OSHRC, 905 F.2d 589, 593 & 594 (2d Cir. 1990).  Therefore, where the undisputed evidence shows that the fourth floor was unguarded and that the crane platform was missing a midrail, there is no basis for vacating the § 1926.500(d)(1) item, even if safety belts would have been equally protective and would have satisfied § 1926.105(a).  Compare Warnel Corp., 4 BNA OSHC 1034,1037,1975-76 CCH OSHD ¶ 20,576, pp. 24,598-99 (No. 4537, 1976) (even though, in a particular case, guardrails might not be as effective as another protective measure, this fact "cannot excuse the absence of guardrails where the standard requires them and their use is possible").  Based on the case law cited above, it is clear that the guardrails charge cannot be vacated merely because the safety belts charge, if affirmed, would address all fall hazards.

If the employees had actually been wearing tied-off safety belts, the guardrails charge might be classified as de minimis.  See Phoenix Roofing, Inc., v. Secretary, 874 F.2d 1027, 1032 (5th Cir. 1989) (a de minimis classification may be appropriate "where there is no significant difference between the protection provided by the employer and that which would be afforded by technical compliance with the standard").  Here, however, where the Company was not complying with either of the two cited standards and the employees were unprotected, we not only decline to vacate the guardrail charge but we decline to classify it as de minimis.

Commission precedent on duplication of charges reflects these principles.  The leading case, H.H. Hall Construction Corp., 10 BNA OSHC 1042,1981 CCH OSHD ¶ 25,711 (No. 76-4765, 1981), involved allegations that the Company failed to reinforce a trench to protect against "superimposed loads" and failed to protect against "moving ground."  The employer in that case contended that, because remedying the former would abate the latter, the latter charge should be vacated.  The Commission rejected the argument, stating:

[S]ection 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition even though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard.  Thus, there is no unfair burden imposed on an employee when the same or closely related conditions are the subject of more than one citation item and a single action may bring an employer into compliance with the cited standards.

10 BNA OSHC at 1046 (emphasis in the original).   The Commission held that it would only "assess a single penalty for overlapping violations." Then, finding that "proper use of the trench boxes which arrived at the worksite late would abate both . . . violations" in the manner prescribed by both standards, the Commission assessed a single $1,000 penalty.  10 BNA OSHC at 1049. [[18]]

The case now before us is distinguishable, however.  The cited standards require different forms of abatement and use of one form does not necessarily provide complete abatement in the circumstances.  As we have discussed, a safety belt as required by § 1926.105(a) is not the abatement that § 1926.500(d)(1) requires and, if the latter standard were satisfied with guardrails along the floor edge, the employees who were straddling the platform would still be unprotected against the danger of falling if the platform shifted.  Accordingly, the Secretary has demonstrated that the two citation items are not duplicative.  Inasmuch as the merits of the two items are not in dispute on review and the judge determined that the Secretary had met her burden of proof as to both items, we affirm them separately and assess separate penalties for them.

IV. Willfulness

As noted above, Judge Brady classified all four citation items as willful.  The judge referred to R & R Builders' "history," consisting of four citations "in 21 months, all for violations relating to fall hazards," and the judge found that R & R Builders "repeatedly agreed to abate its violations and emphasize safety[,] then blithely ignored the Act until the next OSHA inspection occurred."  On review, R & R Builders argues that the four citation items involved in this case should not be classified as willful because the Company had been making genuine and substantial efforts to comply with the OSHA requirements of which the Company was aware.

It is now well-settled that "a willful violation [i]s one involving voluntary action, done either with an intentional disregard of, or plain indifference to, the requirements of the statute."  Georgia Electric Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979), quoted in Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1295 (5th Cir. Unit A, 1981); accord, E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2133, 1991 CCH OSHD ¶ 29,264, p. 39,232 (No. 87-8, 1991) ("intentional disregard for the requirements of the Act or plain indifference to employee safety").  By itself, an employer's familiarity with applicable standards or safety requirements does not establish the willfulness of a violation.  See Wright and Lopez, Inc., 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ¶ 24,419, p. 29,777 (No. 76-3743, 1980).  Furthermore, a finding of willfulness is not justified where evidence reveals that "the employer had a good faith opinion that the violative condition[] conformed to the requirements of the cited standard" or where the evidence reveals that "[the] employer ha[d] made a good faith effort to comply with a standard, even though the employer's efforts [had not been] entirely effective or complete."  Calang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD ¶ 29,080, p. 38,870 (No. 85-319, 1990).  The test of good faith in such cases is an objective one, i.e., whether the employer's belief concerning the factual matters in question had been reasonable under all of the circumstances.

The evidence in this case reveals that the three prior citations and the ensuing process of improving the safety program made the Company's managers aware of the cited fall protection standards, the cited safety program standards, and the particular requirements for a safety program that were set forth in the three informal settlement agreements.  The managers then implemented certain procedures, including jobsite safety inspections and safety meetings among the managers.  As for the ordinary employees, although the Company's, safety meetings did not include them, their supervisors gave them occasional on-the-job correction; Kaye and Rogers both testified that they personally instructed any employee seen performing his work in an unsafe manner.  The managers also formally instituted certain rules and instructions, including the written safety rules that were provided to each newly hired employee.   The safety rules explicitly addressed fall protection.

As we have discussed, the rules and the Company's other measures were not sufficient to meet the requirements of the cited standards and were not as effective and complete as necessary in the circumstances.   Nevertheless, the unrebutted evidence reveals that, in response to the citations issued prior to this one, the Company's managers had taken the measures in good faith, after having attempted to learn all that was required, and in the belief that they were complying with all applicable requirements, some of which are very generalized, see supra notes 1 and 3.  Moreover, the improvements in the safety program prior to the inspection in this case were substantial, and the managers had become more aware of the need for fall protection.  During the inspection, as has been mentioned, General Superintendent George immediately stopped the drywall unloading operation when the compliance officer spoke to him about it.  Then, after the inspection, the Company made further significant strides toward compliance; there was considerable testimony that, subsequently, the Company entirely corrected the safety program deficiencies that were found during the inspection in this case.  Such evidence, revealing the employer's safety program prior to the inspection and showing continuing improvement after the inspection, precludes a finding of willfulness because it demonstrates an overall pattern of responsive behavior, i.e., that the Company was not culpably indifferent to whether its conduct deviated from safety requirements and endangered employees.  Compare Brock v. Morello Bros., 809 F.2d 161, (1st Cir. 1987) (violation not willful in light of foreman's "good faith effort to comply with what he thought was basically required").   The evidence of R & R Builders' meaningful and prompt progress toward rectifying the deficiencies in its safety program mitigates against finding willful violations of the safety program standards cited in this case.

We also decline to find a willful violation of the guardrail standard in light of the unrebutted testimony that, as a regular practice, the Company had been repairing the deficient guardrails on the crane platform and that superintendent George had instructed the drywall crew to stay, as much as possible, behind the guardrails of the platform, since the perimeter of fourth floor was unguarded. Additionally, the Company had made a policy decision, as evidenced by the safety rules and superintendent George's testimony about his instructions in general to employees, to rely on safety belts for protection at open floor edges.  Although safety belts do not meet the requirements of the standards specifying use of guardrails, in most circumstances safety belts can be expected to provide effective and complete protection against the fall hazards presented by open-sided floors.

The one violation that we do find to be willful is the violation involving safety belts (citation item 3).  After receiving the three prior citations, two of which pertained to safety belts, the Company's owner, Rogers, had discussions with OSHA officials about the difficulty of assuring that employees wore safety belts.  In these discussions and from the consequent informal settlements he learned that the Company should train the employees in the recognition and avoidance of safety hazards that require fall protection such as safety belts.  Thereafter, as we have mentioned, the Company made a policy decision to rely on safety belts for primary fall protection of employees. When, however, the Company's vice president wrote out a safety rule on fall protection, he did not pattern it on the specifics that he himself understood and that could have been gleaned from the OSHA standards of which he was aware. In addition, even though information on fall protection requirements was given to George and he knew how and why safety belts are used, he and Rogers proceeded to plan the drywall unloading operation without regard to the obvious fall hazard existing immediately before and after the crane platform landed at the unguarded floor edge.  In material respects, this case can be considered similar to O'Horo, 14 BNA OSHC at 2012-13, 1991 CCH OSHD at p. 39,134 ("O'Horo permitted its foreman Bowman and, through Bowman's delegation, its backhoe operator Black, to substitute their judgment as to whether the trench was safe for the clear requirements of the standards, of which O'Horo was well aware").  Taking into account all of the circumstances leading to the inspection, we conclude that the Company could not reasonably have believed its efforts to enforce the use of safety belts were adequate.

V. Penalties

We turn now to the penalties to be assessed for the one willful citation item and the three remaining citation items.  When this case arose, the Act permitted "a civil penalty of not more than $10,000" for any willful violation and, for a lesser violation, i.e., a serious or a nonserious violation, the Act provided one maximum "civil penalty of up to $1,000." [[19]]  In this case, the Secretary has neither alleged nor argued that any of R & R Builders' violations must be classified as serious if not found to be willful.  The seriousness of the violation for the lack of guardrails on the fourth floor perimeter and the lack of a midrail on the crane platform is suggested by the evidence in this case, as is the seriousness of the safety program violations.  We decline, however, to enter findings of seriousness for the three citation items that we do not classify as willful, in view of the absence of any argument by the parties on the issue and in view of our clear authority under the Act to assess a penalty appropriate to the gravity of the violations, regardless of their classification as serious or nonserious.  See Bland Constr. Co., 15 BNA OSHC 1031, 1040, 1044, 1991 CCH OSHD ¶ 29,325, pp. 39,400 & 39,404 (No. 87-992, 1991)

We deem it appropriate to assess the following penalties for the violations:  $8,000 for the willful violation (citation item 3), and $1,000 for each of the three remaining violations (citation items 1, 2, and 4).  The Company, which is relatively small, has a history of OSHA violations and, although the Company has made continuing efforts to protect its employees and implement a safety program, good faith has come into question with the finding of a willful violation.  The gravity of the exposure discovered in this case was high, both in terms of the number of employees exposed and the severity of the hazard to which they were exposed.

VI. Order

Accordingly, we affirm citation item 3 as a willful violation and assess a penalty of $8000. For citation items 1 and 2, which we affirm, and for citation item 4, which we uphold on the basis of the judge's decision affirming the item, we assess three penalties of $1,000 each.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: November 25, 1991

SECRETARY OF LABOR,

Complainant,

v.

R & R BUILDERS, INC.,

Respondent.

OSHRC Docket No. 88-0282

APPEARANCES:

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

Charles T. Kessler, Esquire, Pyszka,
Kessler, Massey, Weldon, Catri, Holton and
Douberley, Fort Lauderdale, Florida, on
behalf of respondent.

DECISION AND ORDER

BRADY, JUDGE:  Respondent, R & R Builders, Inc., ("R & R"), contests two citations issued to it on December 21, 1987, under the Occupational Safety and Health Act of 1970 ("Act").   The citations emanate from an inspection conducted by Compliance Officer John MacDonald at a construction site located in Boca Raton, Florida, from October 14 to November 5, 1987.

Citation one alleges willful violations of 29 C.F.R. § 1926.20(b)(1) for failure to initiate and maintain a safety program, of 29 C.F.R. § 1926.20(b) (2) for failure to make frequent and regular inspections of the jobsite, of 29 C.F.R. § 1926.21(b)(2) for failure to instruct employees in the recognition and avoidance of safety hazards, of 29 C.F.R. § 1926.105(a) for failure to provide safety nets in areas where the workplace was more than 25 feet above the ground, and of 29 C.F.R. § 1926.500(d)(1) for failure to guard an open-sided floor that was six feet above ground level.

Citation two charges an other-than-serious violation of 29 C.F.R. § 1926.404(b)(1)(ii) for failure to provide ground-fault circuit interrupters.

R & R was the drywall subcontractor for a 17-story luxury condominium, known as the Sea Ranch or Spanish River project, located at 4201 North Ocean Boulevard in Boca Raton, Florida.  The Weitz Company was the project management group, which had hired 17 subcontractors for the project (Tr. 31-32).

On October 14, 1987, MacDonald was traveling to another work site for an inspection when he observed employees working without fall protection at the perimeter edge of the seventh floor of Building C at the work site. [[1]]  MacDonald stopped and called his office to report this observation, at which time he was instructed to proceed to the Sea Ranch work site and conduct an inspection (Tr. 34).

MacDonald went to the general contractor's trailer and spoke with project manager Chad Lewis.  MacDonald, Lewis, and Weitz employee Bob Dimmers proceeded to enter the building on the west side.  As they entered the building, they observed four employees without fall protection standing at the edge of the fourth floor.  The employees were waiting for a platform to be swung over by a crane (Ex. C-2; Tr. 35-37).

When MacDonald and the others arrived at the fourth floor, they observed six R & R employees in the area.  Four of these employees were standing at the edge of the perimeter, off-loading drywall material from the lift platform to the fourth floor balcony area.  The employees did this by straddling the balcony floor and the lift platform.  The left side of the platform was missing a midrail, leaving a gap of 42 inches.  The side of the platform closest to the balcony had a foot long metal extension used to catch on to the side of the building, creating a bridge between the platform and the balcony (Ex. C- 3; Tr. 44-47, 83-84).

During his inspection, MacDonald also observed that a duplex receptacle near a trailer was energized at 120 volts and was not protected with a ground-fault circuit interrupter.  He observed another receptacle on a panel inside the R & R trailer that did not have a ground-fault circuit interrupter (Ex. C-4, C-5; Tr. 54-56).

R & R has a history of previous violations.   On April 7, 1986, R & R was issued a serious citation alleging that its employees were not protected from fall hazards of up to 16 feet (Ex. C-8). On April 16, 1986, R & R entered into an informal settlement agreement, which states in paragraph seven (Ex. C-9):  "The employer agrees to continue improving the safety knowledge of his safety director."

On July 3, 1986, R & R was issued a serious citation for an alleged violation of 29 C.F.R. § 1926.500(d)(1) for failure to guard an open-sided floor which exposed an employee to a 50-foot fall (Ex. C-10).  On July 16, 1986, R & R entered into an informal settlement agreement, which contained the following paragraphs (Ex. C-11):

7.  The Employer agrees he has corrected the alleged violations as cited.

8.  The Employer agrees to conduct regular safety inspections of his worksites.

9.  The Employer agrees to train his employees in the recognition and avoidance of on the job hazards.

On April 8, 1987, R & R received a third serious citation for allowing employees to work without fall protection while exposed to an 11- to 18- foot fall (Ex. C-12).  On April 30, 1989, R & R entered into an informal settlement agreement which contained the following paragraphs (Ex. C-13):

8.  The employer agrees to conduct regular safety meetings.

9.  The employer agrees to train employees for hazard recognition and avoidance on the job.

10.  The employer agrees to conduct weekly inspections of workplaces and to correct deficiencies found.

ALLEGED WILLFUL VIOLATION OF 29 C.F.R. § 1926.20(b)(1)

The regulation, which pertains to accident prevention responsibility, provides:

It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.

The Commission has held that:

Elements of an effective safety program include work rules designed to prevent violations, adequate communication of the rules to employees, methods of discovering whether violations occur, and enforcement of the rules if violations are discovered.

Howard P. Foley Co., 77 OSAHRC 90/A2, 5 BNA OSHC 1501, 1977-1978 CCH OSHD ¶ 21,862, p. 26,341 (No. 13244, 1977).

MacDonald testified that, based on his inspection, he concluded that R & R had no safety program.  He was told by Peter George, foreman in charge of the project for R & R, that R & R held no safety meetings and that employees were given no safety instructions or safety training (Tr. 51-52).  At the hearing, Stephen Key, a foreman, and John Curry, a metal framer, both testified that no regular safety meetings were held and that no safety training was given in off-loading material (Tr. 11-12, 24-24).

John Kaye, R & R's vice-president of operations, testified that he held regular meetings with R & R's foremen to discuss safety.  He also testified that he made regular inspections of R & R work sites (Tr. 109, 115).  Upon cross-examination, however, Kaye stated that he had been out of the country from June to December of 1987, and had never inspected the Sea Ranch project, or held safety meetings with foremen between the start of the project and the inspection by MacDonald (Tr. 122-123).

Based on the record, the only effort made by R & R to establish a safety program was the distribution of an information packet to new employees.  The packet contained a copy of the company's written safety rules (Ex. R-2).  There are a total of 19 rules, which are for the most part drafted in general terms, providing little specific instructions on hazards peculiar to the industry.   The only rules relating to fall protection come under the heading of "safety belts."
They state:

1. Belts and proper lines will be used when necessary. If any questions arise get in touch with office immediately.

2. Make sure lines are secured to a solid permanent part of the building.

(Id.).

Despite the admonitions concerning safety belts, no belts were provided by R & R to its employees at the Sea Ranch work site (Tr. 11).  At the hearing, R & R suggested, rather disingenuously, that if had deemed safety belts necessary, R & R could have borrowed them from C. L. Weitzside, whose trailer was next to R & R's (Tr. 161).  Upon cross-examination, George (who had testified to the borrowing arrangement) admitted that at the time of the inspection, he was unaware of any arrangement whereby R & R could borrow equipment from Weitzside (Tr. 170-171).

The record establishes that R & R did not have a safety program adequate to comply with the requirements of the Act.  Although new employees were given a short list of general rules, any safety instructions they received after that time was fortuitous and not part of an established safety program.  R & R was in violation of 29 C.F.R. § 1926.20(b)(1).

ALLEGED WILLFUL VIOLATION OF 29 C.F.R. § 1926.20(b)(2)

This regulation requires that:

Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

During his inspection, MacDonald was informed by George that no inspections of the work site were conducted (Tr. 52).  As noted, supra, Kaye's initial claim that he conducted regular inspections of R & R's work sites was belied by his admission that he was out of the country from the time the Sea Ranch project began until after MacDonald's inspection.  Greg Rogers, one of the owners of R & R, testified that he conducted informal inspections of the work site once or twice a week (Tr. 189-190).  Rogers testified that it took him anywhere from 45 minutes to an hour and a half to walk the job, and he usually did this on Fridays after he had handed over the employees' paychecks.  Rogers stated that during these walks, he would check the progress of the job and job safety (Tr. 198-199).

The Secretary argues that the relatively short duration of Roger's walkarounds, and the fact that he was also checking on the progress of the job, lead to the conclusion that Rogers was not conducting the type of safety inspection contemplated by the standard.  The Secretary's argument is convincing.   Rogers, as an owner of the company, was on the work site at the end of every week to deliver the payroll.  His presence can hardly be deemed that of a designated competent person scrutinizing safety procedures.  The fact that the number of employees were working in concert next to an unguarded perimeter four stories up without fall protection argues against Roger's effectiveness as a safety inspector.

Furthermore, when asked about inspection of job materials, Rogers responded, "Job materials were taken care of by my superintendent.   The only thing [I inspected] was, basically, the progress of the work and safety" (Tr. 199).  The standard at issue specifically provides for the inspection of "jobsites, materials,and equipment."  It has been established that George, who was in charge of the project, did not conduct such inspections.  R & R failed to comply with the provisions of the standard, and is in violation of 29 C.F.R. § 1926.20(b)(2).

ALLEGED WILLFUL VIOLATION OF 29 C.F.R. § 1926.21(b)(2)

The regulation, which pertains to employer responsibility for safety training provides that:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

As noted, supra, the record establishes, through the testimony of foremen Peter George and Stephen Key, that the employees of R & R did not receive adequate safety training, either through regular safety meetings or on-the-job training.  It is particularly telling that neither Key nor George believed that it was necessary for their workers to wear safety belts while working at the immediate edge of an unguarded floor, 40 feet above the ground (Tr. 19, 161).  R & R was in violation of 29 C.F.R. § 1926.21(b)(2).

ALLEGED WILLFUL VIOLATION OF 29 C.F.R. § 1926.105(a)

The regulation requires that:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

It is undisputed that R & R's employees were working more than 25 feet above the ground and that they were not using any of the safety devices listed in the standard.  MacDonald testified that the use of safety nets, safety belts, scaffolding, and catch platforms would have been feasible, and that the use of any one of them would have brought R & R into compliance (Tr. 42-43).  R & R offered no evidence to rebut this testimony and, therefore, was in violation of 29 C.F.R. § 1926.105(a)

ALLEGED WILLFUL VIOLATION OF 29 C.F.R. § 1926.500 (d) (1)

The regulation requires that:

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, 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.

It is undisputed that the perimeter edge next to which the employees were working was not guarded.  It is also undisputed that the lift platform was missing a midrail, leaving a gap of 42 inches, through which an employee could fall.  In its posthearing brief, R & R argues only that the classification of the violation should be serious, and not willful.  The evidence establishes that R & R was in violation of 29 C.F.R. § 1926.500(d)(1).

R & R argues that § 1926.105(a) (use of safety nets) and § 1926.500(d)(1) (use of guardrails) address identical conditions; and, therefore, R & R cannot be cited for both.  The Commission has that "[a]lthough a work site condition may violate more than one standard, section 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition even though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard."  H. H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1046, 1981 CCH OSHD ¶ 25,712 (No. 76-4765, 1981).  R & R was, therefore, correctly cited for violations of both § 1926.105(1) and § 1926.500(d)(1).

WILLFULNESS CLASSIFICATION

"A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety."  A. C. Dellovade, Inc., __OSAHRC__, 13 BNA OSHC 1017, 1987 CCH OSHD ¶ 27,786, p. 36,341 (No. 83-1189, 1987).   Including the present citations, R & R was cited four times in 21 months, all for violations relating to fall hazards.  Such a history manifests an intentional disregard for the requirements of the Act or plain indifference to employee safety.   R & R has repeatedly agreed to abate its violations and emphasize safety then blithely ignored the Act until the next OSHA inspection occurred.  R & R was in willful violation of 29 C.F.R. § 1926.20(b)(1), § 1926.20(b)(2), § 1926.21(b)(2), § 1926.105(a), and § 1926.500(d)(1) as alleged.

ALLEGED VIOLATION OF 29 C.F.R. § 1926.404(b)(1)(ii)

The regulation provides:

All 120 volt, single-phase, 15- and 20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring of the building or structure and which are in use by employees, shall have approved ground-fault circuit interrupters for personnel protection.  Receptacles on a two-wire, single-phase portable or vehicle-mounted generator rated not more than 5kw, where the circuit conductors of the generator are insulated from the generator frame and all other grounded surfaces, need not be protected with ground-fault circuit interrupters.

The inspecting officer testified that he observed an energized receptacle and panel which were not protected by ground-fault circuit interrupters (Ex. C-4, C-5; Tr. 54-56).  R & R did not rebut the evidence and, therefore, was in other than-serious violation of 29 C.F.R. § 1926.404(b)(1)(ii).

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all contested cases.  Secretary v. OSAHRC and Interstate Glass Co., 487 F. 2d 438 (8th Cir. 1973).  Under 17(j)(4) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of the previous violations in determining the assessment of an appropriate penalty.  The gravity of the offense is the principal factor to be considered.  Nacirema Operating Co., 72 OSAHRC 1/B10,1 BNA OSHC 1001, 1971-1973 CCH OSHD ¶ 15,032 (No.4, 1972).

At the time of the inspection, R & R had approximately 15 employees.  MacDonald testified that the hazardous conditions presented risks of broken bones an death (Tr. 37, 40, 48).

Upon consideration of the factors for determining penalties and the facts of this case the following penalties are deemed appropriate:

FINDINGS OF FACT

1.  R & R was a subcontractor on a project known as the Sea Ranch project or Spanish River job, a luxury condominium high-rise building located at 4201 North Ocean Boulevard in Boca Raton, Florida.  The project consisted of a marina and 17-story high-rise buildings.

2.  R & R was installing drywall at the project and, at the time of the OSHA inspection in October 1987, approximately 15 employees of respondent were working in Building C at the project site.

3.  Compliance Officer John MacDonald conducted an inspection of the entire project site from October 14, 1987, through October 16, 1987.

4.  In the course of his inspection, MacDonald observed employees of R & R at the fourth-floor level standing at the edge of the building waiting for a lift platform from which they off loaded drywall material.   The employees were exposed to a fall hazard of approximately 40 feet and were working without fall protection.

5.  The lift platform had no guardrail or midrail on the right hand side of the lift platform.  The employees straddled the balcony floor and the lift platform to off load drywall materials into the fourth-floor level.  There was a limited metal extension on the platform which, if the crane were to be jostled, would cause movement in the platform and create a gap between the building floor and platform from which employees could fall through.

6.  Peter George and Stephen Key, the foremen on the project, were unaware of the hazards of working near the edge of buildings and were unaware of OSHA rules requiring fall protection for employees exposed to those hazards.

7.  Employees had not received any instruction or training in the off-loading of materials at this jobsite and there were no safety belts available for use by employees of R & R at this site.

8.  An R & R foreman admitted to the inspecting officer that the company did not have safety meetings with its employees, that no instructions or training were given to employees in the avoidance of unsafe conditions or in the use of safety equipment, and that no inspections were done to his knowledge to discover hazardous conditions.

9.  There were, in fact, no regular or frequent safety meetings at the site, and the company did not provide any safety training or give any instructions in how to perform jobs safely.

10.  There were no frequent and regular inspections of the jobsite, materials, and equipment by a designated competent person at this jobsite.

11.  Receptacles energized at 120 volts were not protected with ground-fault circuit interrupters at the jobsite.

12.  R & R had been issued three previous citations involving allegations of fall hazards at other jobsites.  The citations were affirmed with R & R agreeing to correct said violations.

CONCLUSIONS OF LAW

1.  This proceeding arises under the Occupational Safety and Health Act of 1970.  Jurisdiction is conferred upon the Commission by § 10(c) of the Act, 29 U.S.C. § 659(c).

2.  At all times material hereto, respondent, R & R Builders, Inc., was an employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5).

3.  R & R was in willful violation of 29 C.F.R. § 1926.20(b)(1) by failing to initiate or maintain a safety program to provide compliance with OSHA safety and health standards applicable to the construction industry.

4.  R & R was in willful violation of 29 C.F.R. § 1926.20(b)(2) by failing to insure and/or require frequent and regular inspections of the jobsite, materials and equipment by a designated competent person to insure compliance with OSHA safety and health standards applicable to construction industry

5.  R & R was in willful violation of 29 C.F.R. § 1926.21(b)(2) by failing to instruct employees in the recognition and avoidance of unsafe conditions and the regulations applicable to their work environment.

6.  R & R was in willful violation of 29 C.F.R. § 1926.105(a) by permitting its employees to work more than 25 feet above ground without providing safety nets or enforcing the use of other safety devices listed in the standard.

7.  R & R was in willful violation of 29 C.F.R. § 1926.500(d)(1) by failing to guard, by a standard railing or the equivalent as specified in 29 C.F.R § 1926.500(f)(1)(ii), open-sided floors or platforms six feet or more above adjacent floor or ground level.

8.  R & R was in other-than-serious violation of 29 C.F.R. § 1926.404(b)(1)(ii) by failing to have approved ground-fault circuit interrupters for personnel protection for all 120-volt, single-phase, 15- and 20-ampere receptacle outlets.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED:

1.  Item la of citation one is affirmed.

2.  Item 1b of citation one is affirmed and a penalty of $8,000.00 is assessed for both items.

3.  Item 2 of citation one is affirmed and a penalty of $4,000.00 is assessed.

4.  Item 3 of citation one is is affirmed and a penalty of $8,000.00 is assessed.

5.  Item 4 of citation one is affirmed and a penalty of $8,000.00 is assessed.

6.  Citation two is affirmed and no penalty is assessed.

Dated this 15th day of August, 1989.
PAUL L. BRADY
Judge



FOOTNOTES:

[[1]] This standard states: "It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part."

[[2]] This standard states: "Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers."

[[3]] This standard states: "The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."

[[4]] This standard states: "Safety nets shall he provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."

[[5]] This standard states, in pertinent part: "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. . . ."

[[6]] This standard states: "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."

[[7]] In particular, Greenspan testified: "[Rogers] did mention [that] it is difficult to keep [the employees] in lines and belts, but we pushed on the need for possibly disciplining them if they aren't going to do it."  Greenspan suggested using verbal reprimands, written warnings, and lay-offs if the employees "just wouldn't listen."

[[8]] The compliance officer had conducted 580 inspections, approximately 70 percent of which involved construction.

[[9]] At the hearing, when asked why he had told the compliance officer that there was no safety program, George replied that he had assumed the compliance officer meant documentation of a safety program, such as signatures showing attendance at regular safety meetings and photographs of hazards.  Both he and Rogers thought that they had told MacDonald about the copies of the safety rules that were given to each employee; also, Rogers thought he had mentioned certain safety inspections that he conducted at the jobsite.

[[10]] According to his testimony, his problem was the scant detail to be found in the OSHA standards on safety programs:

[I didn't keep a record of attendance at safety meetings] because of the fact that OSHA regulations do not define a safety program. We have asked OSHA over and over again, "Tell us what is a safety program?"   They refer[red] us to the book.  The book is all of a paragraph that says, "Safety program[s] will be established."  No one gives you an outline, no one explains to you how it is implemented, there is nothing there.  There is nothing in that literature that says what a safety program is.  It is a general guide on what can be done.

[[11]] None of R & R Builders' employees had ever fallen off a building perimeter.  Generally, the Company's work was in the interior of buildings, where there was no need for safety belts, although occasionally employees had used safety belts.  On other projects as well as the one in Boca Raton, employees had unloaded drywall at building perimeters.

[[12]] Rogers did not specifically testify that, on the Boca Raton project, he continued vice president Kaye's practice of having such monthly meetings; moreover, Rogers' mention of such meetings seems to refer to the ones held by the vice president before this project began.

[[13]] The foremen were George, Key, and a construction superintendent, Charles Boykin.  They had the responsibility for deciding whether safety belts were needed.  The two superintendents (but not Key) had attended the OSHA training seminar and on-site project meetings convened by another employer (the project manager), OSHA training seminar and on-site project meetings convened by another employer (the project manager), and George had been personally instructed regarding safety belts, by Kaye, after the Company received one of the earlier citations.  Also, according to George, there were lower-level safety meetings which he and Boykin or Rogers conducted, but did not document.  These meetings were infrequent, however, and Key testified that they covered only "the basic thing": "long pants, hard hats, boots."  According to George, these meetings did not include the regular employees.  Evidently, only sub-foreman such as the labor foreman, Key, attended.

[[14]] Rogers further testified that he had instructed all foremen on this project to be on the alert for safety problems.   Foreman Key testified that he generally gave instructions regarding the safe performance of jobs and he generally watched the employees to see that they were following his instructions.  On this job he had instructed the crew to "be careful" near the floor edge.

[[15]] See e.g., Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233-34 (5th Cir. 1974) (§ 1910.132(a)); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 10-11 (4th Cir. 1974) (§ 1910.132(a)); Cape & Vineyard Div., New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975) (§ 1910.132(a)); Brennan v. Smoke Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976) (§ 1910.132(a)); Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976) (§ 1910.28(a)(1)); American Airlines, Inc. v. Secretary, 578 F.2d 38, 41 (2d Cir. 1978) (§ 1910.132(a)); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 731-32 (6th Cir. 1980) (§ 1926.28(a)); Voegele Co. v. OSHRC, 625 F.2d 1075, 1077-79 (3d Cir. 1980) (§ 1926.28(a)); Florida Machine & Foundry, Inc., v. OSHRC, 693 F.2d 119, 120 (11th Cir. 1982) (§ 1910.133(a)(1), citing court cases on §§ 1910.132(a) & 1926.28(a)); L.R. Willson and Sons v. OSHRC, 698 F.2d 507, 513 (D.C. Cir. 1983) (§ 1926.28(a)); Department of Labor v. OSHRC (Goltra Castings), 938 F.2d 1116, 1119 (10th Cir. 1991) ( § 1910.133(a)).

[[16]] Both parties assume that the judge relied on the compliance officer's testimony that he was told that no safety inspections were conducted.  The Secretary believes that Judge Brady gave dispositive credence to the testimony.  R & R Builders asserts that the testimony was not worthy of credence.   The judge's decision, however, only recites the testimony; the testimony is not the basis of any reasoning or factual findings.  We conclude, therefore, that the judge did not materially rely on the testimony, or credit it over that of George explaining the comments he made to the compliance officer during the inspection.  At most, the judge found that George was unaware of the program of safety inspections and had not been inspecting materials.

[[17]] See 29 U.S.C. § 655(a) (statutory authority to adopt as an OSHA safety standard any established Federal standard that may result in improved safety for employees).  See also Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 905 n.5 (2d Cir. 1977).

[[18]] Subsequent to Hall, the principle of assessing a single penalty where one form of abatement meets the requirements of both standards has been followed in Wright & Lopez, Inc., 10 BNA OSHC 1108, 1112, 1981 CCH OSHD ¶ 25,728, p. 32,077 (No. 76-256, 1981).  Compare Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ¶ 27,829, p. 36,430 (No. 84-696, 1987) (items combined into "a single violation" and one penalty assessed because "[t]he two citation items involve substantially the same violative conduct" and abating one item would effectively abate the other).  But see, Capform, Inc., 13 BNA OSHC 2219, 2224, 1987-90 CCH OSHD ¶ 28,503, p. 37,778 (No. 84-556, 1989) (vacation of one item requiring protection against "moving ground" in an excavation because the other item's requirement for reinforcement against "superimposed loads" would abate both items); United States Steel Corp., 10 BNA OSHC 2123, 2134, 1982 CCH OSHD ¶ 26,297, pp. 33,237-38 (No. 77- 3378, 1982) (items vacated because the same abatement was required by other items).

[[19]] The Act has since been amended, to increase the maximum penalties sevenfold and to establish a $5,000 minimum penalty for willful or repeat violations.  29 U.S.C. §§ 666(a), (b) and (c), as amended Pub. L. 101-508, Title III, § 3101, 104 Stat, 1388-29 (1990).

[[1]] The employees observed working on the seventh floor were not employees of R & R (Tr. 50).