LEO J. MARTONE AND ASSOCIATES, INC.

OSHRC Docket No. 11175

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Louis Weiner, Regional Solicitor

Joe D. Martone, Office Manager, Leo J. Martone & Associates, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Ben D. Worcester is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"]. In his decision Judge Worcester vacated a citation alleging a serious violation of the Act for failure to comply with the standard at 29 CFR 1926.550(c)(2). The Secretary filed a petition for review excepting, among other things, n1 to the Judge's conclusions that the Secretary failed to prove a violation of the cited standard, and furthermore that certain conduct of the compliance officer during the inspection warranted the vacation of the citation. I issued an order directing review on the issue of whether the Judge erred in vacating the citation alleging a serious violation of the cited standard. For the reasons that follow, we reverse.

- - - - - - - - - - - - - - - - - -Footnotes- [*2] - - - - - - - - - - - - - - - - -

n1 Respondent was also issued a citation alleging six nonserious violations for failure to comply with various standards. The Judge affirmed five of the nonserious items and vacated one, i.e., an alleged failure to comply with 29 CFR 1926.450(a)(1). The Secretary's petition for review excepted to the vacation of this item of the nonserious citation. The direction for review, however, was limited to the vacation of the alleged serious violation. The Judge's actions concerning the other items has therefore become a final order pursuant to section 12(j) of the Act.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's construction worksite was inspected after the compliance officer had observed, from the roadway, a person walking across the top of the horizontal boom of a hammerhead tower crane in use at the worksite. The compliance officer testified that he saw the person walk out towards the end of the boom, stoop down, and then walk back to the tower. The compliance officer photographed the person while on the boom and, since in his estimation the boom was 70 feet above ground level, and it did [*3] not appear that there were guardrails on the boom nor that the person was wearing a safety belt and lifeline, he decided to conduct a formal inspection. He then went to the worksite and presented his credentials.

The person observed on the boom was identified as the operator of the crane and an employee of respondent. The compliance officer testified that from the ground level he was not able to determine with certainty whether there was any type of fall-protection on the boom. He therefore asked the crane operator, who had since descended, to accompany him up to the boom to enable him to get a closer look. Once on the boom, the compliance officer observed the following: The horizontal boom, the superstructure of which was metal latticework, extended outward about 75 to 80 feet. On one side of the boom, and running its entire length, was a walkway approximately 12 to 14 inches wide. On the outer edge of the walkway a 3/8 inch cable was strung for the first 25 feet of the boom. This cable was 42 inches above and parallel to the walkway. There was no cable along the inner edge of the walkway which bordered the open latticework of the boom. Pendant lines, or guy wires, were [*4] strung from the top of the crane tower and attached to both sides of the boom at various points along its length.

The compliance officer testified that while he was standing on the boom, next to the tower, he asked the employee if this was the only protection that he had when he went out on the boom to make his inspections or maintenance. He testified that the employee answered in the affirmative, opined that this was "enough," and then grabbed the cable and walked further out onto the boom. At this time, the compliance officer took another photograph of the employee standing on the boom.

Based on these observations, the citation alleging a serious violation of 29 CFR 1926.550(c)(2) was issued, and a hearing was held. The cited standard reads:

Subpart N - Cranes, Derricks, Hoists, Elevators, and Conveyors

1926.550 Granes and derricks.

* * *

(c) Hammerhead tower cranes.

* * *

(2) Employees required to perform duties on the horizontal boom of hammerhead tower cranes shall be protected against falling by guardrails or by safety belts and lanyards attached to lifelines in conformance with Subpart E of this part (emphasis added).

The citation alleging a [*5] violation of this standard reads as follows:

While performing maintenance and inspection work on the horizontal boom of the . . . tower crane, the operator is not protected against falling by guardrails or by a safety belt with lanyard attached to a guideline.

The first reason given by the Judge for vacating the citation was that the Secretary failed to prove "an essential element . . . of the citation," i.e., that the crane operator was performing "maintenance" work as alleged. We hold that vacation of the citation for this reason was improper.

The standard does not require that a specific type of duty be performed on the boom before the specified precautions must be taken. It speaks only in terms of employees required to perform "duties." That the crane operator was required to perform duties on the boom of the crane is clear from the record. In respondent's reply to the Secretary's request for admissions it was admitted that the crane operator was performing inspection work on the boom. n2 Furthermore, the compliance officer testified that he was told by the crane operator that he was inspecting the equipment to see that the bolts and nuts were tight for the pendant lines. [*6] n3 The compliance officer's testimony describing the actions of the crane operator as observed by him corroborates this statement. Also, a job superintendent of respondent, who had been the crane operator's supervisor at a previous jobsite at which the same crane had been used, testified that the operator had been issued a safety belt and lanyard "to use when he went out on the boom of the crane, so he could fasten to the guy line or a pendant, while he was out there" n4 (emphasis added). Finally, respondent's representative at the hearing, Mr. Leo Martone, stated that "the operator had been instructed of what safety equipment to use at that particular boom" n5 (emphasis added).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Item 15 of the Secretary's request for admissions stated:

* * *

15. While Mr. Rhine was performing inspection work on the boom of the crane, he was not protected from the hazard of falling by the use of lifeline and safety belt or guardrails.

Respondent replied:

We agree with the matters set forth in your "Request for Admissions" except as noted below:

* * *

3. Items number 15 and 16. It should be noted that the safety equipment mentioned i.e., lifeline and safety belts, were available to the employees at the jobsite and that all our operators are aware of the safety requirements.

n3 Hearsay evidence is admissible in administrative proceedings and can be used as probative evidence. B & K Paving Co., 2 BNA OSHC 1173, 1974-75 CCH OSHD para. 18,570 (No. 59, 1974) and authorities cited therein. Its probative value is increased when, as here, there is corroborating evidence.

n4 Transcript at 186.

n5 Transcript at 6-7.

[*7]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The foregoing evidence preponserates, and supports the conclusion that the crane operator was required to perform duties on the boom of the involved crane within the meaning of the cited standard. n5a We also conclude that it has been shown that his duties did encompass "inspection" work as was alleged in the citation. Therefore, assuming that the Judge was correct in his conclusion that the Secretary did not prove that "maintenance" work was a required duty of the crane operator, this failure would not require vacation of the citation. Proof that the operator was required to perform inspections on the boom and that he did so without the required protective measures having been taken, is sufficient to establish a violation of the standard, regardless of whether it was also proved that separate maintenance duties were required. The standard is violated when a required duty is performed on the boom without the appropriate precautions having been taken. It is of no legal significance that the employee exposed to the falling hazard may have had other duties to perform while on the boom.

- - - [*8] - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5a The only evidence offered to support the contrary conclusion was statements by respondent's witnesses that the crane operator had not been instructed to perform any maintenance on the crane and that he had been told not to go out on the boom without orders from the superintendent. Transcript at 195, 211-12, 219.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the hearing, respondent's representative also argued that respondent should not be held responsible for a violation based on the crane operator's conduct because he had been issued a safety belt and lanyard, and was instructed to use this safety equipment when he went out on the boom. Respondent's supervisors also testified to this effect. In essence, respondent was raising an affirmative defense that the violation resulted from unpreventable employee misconduct. B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976); A.J. McNulty & Co., Inc., 4 BNA OSHC 1097, 1975-76 CCH OSHD para. 20,600 (No. 2295, 1976).

We have held that to establish such a defense [*9] an employer must prove that the employee's action constituting noncompliance with a standard was a departure from a workrule which the employer had uniformly and effectively enforced, and that the employer had neither actual nor constructive knowledge of the departure. B-G Maintenance Management, Inc., supra; A. J. McNulty & Co., Inc., supra. The only evidence offered to show enforcement of respondent's workrule was testimony by the supervisor present at the jobsite at the time of the violation, that he would have "reprimanded" the crane operator if he had observed him on the boom not wearing the safety equipment. The job superintendent testified, however, that after he learned of the operator's conduct, he did not take any disciplinary measures. n6 We therefore conclude that the defense has not been established.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Transcript at 226-7.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Furthermore, as noted previously, the cable running parallel to the boom extended for only the first 25 feet of the boom. In order to proceed further down the boom's [*10] walkway, it would be necessary to unhook the lanyard from the cable and then reconnect it to the closest pendant line. The compliance officer estimated the pendant lines to be about ten feet apart. This procedure necessarily would have to be repeated each time the employee desired to move more than six feet beyond the pendant line to which the lanyard was connected. n7 The employee would therefore be unprotected during the time that the lanyard was not connected to a pendant line. Clearly, such a practice is not a proper method of complying with the standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 The safety belt had a six-foot lanyard attached to it. Transcript at 186. Also see 29 CFR 1926.104(d).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Finally, we reject the second reason given by the Judge for vacating the citation. The Judge stated that the compliance officer "permitted this employee to walk out upon the crane boom to pose so he could take his photograph in an unprotected location 70 feet above the ground." n8 He found that such action was "so repugnant" to the purpose [*11] of the Act as to warrant vacation of the citation. We find no support for the Judge's conclusion in the record. When questioned on this point the compliance officer expressly denied asking or encouraging the crane operator to go out on the boom. There is no evidence to the contrary. We therefore need not address the question of whether vacation of a citation would be an appropriate sanction for the "misconduct" of a compliance officer during an inspection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Judge's decision at 3.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary proposed that a penalty of $750 be assessed for this serious violation. We consider, however, a penalty of $500 to be appropriate in light of the factors specified in section 17(j) of the Act. n9

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Section 17(j) reads:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, the citation for a serious violation of the Act for failure to comply with 29 CFR 1926.550(c)(2) is affirmed and a penalty of $500 is hereby assessed.

It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Complainant has failed to establish that respondent possessed the requisite knowledge of the alleged hazardous condition. Therefore, Judge Worcester's vacation of the 29 C.F.R. 1926.500(c)(2) charge should be affirmed.

Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. It is therefore incumbent upon the complainant to prove that respondent knew or with the exercise of reasonable diligence could have known of the alleged violative condition. See Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Scheel Construction, Inc., OSAHRC Docket No. 8687, November 8, 1976; Secretary v. Engineers Construction, Inc., 20 OSAHRC 348 (1975). By concluding that employee misconduct [*13] is an affirmative defense, my colleagues rather adroitly - yet unjustifiably - have relieved complainant of this evidentiary burden. n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 It is rather curious that Mr. Barnako would join in this action. Only recently, he refused to assent to a lead opinion in which an attempt was made to shift the burden of proof to the employer in a similar situation. Secretary v. J. K. Butler Builders, Inc., OSAHRC Docket No. 12354, February 25, 1977 (concurring opinion).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

There is simply no evidence indicating that respondent knew or should have known of the presence of the employee on the crane boom. To the contrary, the evidence reveals that respondent had absolutely no reason to believe that its employee would, of his own volition, wander out onto the boom, much less do so without the aid of personal protective equipment.

The employee in question was in fact issued a safety belt and lifeline and was duly instructed as to when their usage was required by company safety policy. Deviation from this safety policy would [*14] have resulted in a reprimand if observed by supervisory authority. Moreover, the employee was explicitly told not to perform any nonoperational duties on the crane unless specficially instructed to do so. No instructions had been given that would have required him to be out on the boom for any reason or purpose. n11

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 For some unexplained reason, Messrs. Barnako and Cleary apparently have chosen to consider this evidence as inconsequential. See footnote 5a of the lead opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The majority is improperly holding respondent to a standard of strict liability. However, Congress never intended that an employer should be held responsible for unpreventable instances of hazardous conduct by its employees. See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973); Secretary v. Engineers Construction, Inc., supra. Thus, where an employer has furnished an employee with the equipment necessary to comply with a standard and told him how to use it, it is obviously [*15] improper to hold the employer liable if the employee - the very person the Act seeks to protect - refuses to heed those instructions.

One one hand, my colleagues penalize an employer who used his best efforts to protect his employee but, on the other hand, they refuse to censure complainant's inspector who, rather than making any effort to stop that employee from returning to the precarious position on the boom, took the time to photograph that senseless and hazardous act. This blatant contradiction cannot be reconciled.

Since this decision does not address all of the matters covered in Judge Worcester's decision, his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Richard D. Soltan, for the Secretary

Leo J. Martone, pro se, for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the respondent, Leo J. Martone and Associates, Inc., under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On November 8, 1974, citations were issued alleging that the respondent had violated [*16] section 5(a)(2) of the Act and various standards promulgated by the Secretary. The matter came on to be heard in Norfolk, Virginia, on March 14, 1975.

THE ISSUES

As a result of the Secretary's inspection of a five-story office building under construction at Virginia Beach, Virginia, on November 1, 1974, Martone was charged in citation no. 1 with a serious violation of the Act for which a $750 penalty was proposed. In citation no. 2 Martone was charged with six non-serious violations. The respondent admitted the violations described in items 1, 2 and 5 of citation no. 2. No penalty was proposed on item 2. The reasonableness of the proposed penalties of $40 and $75 respectively for the alleged violations described in items 1 and 5 is the only issue involved in these two citations for non-serious violation. Martone denies the serious violation and items 3, 4 and 6 of the citation for non-serious violation.

On the basis of the careful consideration of the requirements of the Act pertaining to the determination of penalties as explained by the Secretary's witness, Straw, I find that penalties of $40 and $75 for nonserious items 1 and 5 are reasonable.

With regard to the citation [*17] for serious violation, ruling on Martone's motion to dismiss on the ground that the citation did not meet the requirements of the rules was reserved. I find that this motion should be, and hereby is, denied. However, the Secretary has failed to sustain the burden of proof that Martone violated 29 CFR 1926.500(c)(2) n1 because a crane operator walking on a horizontal crane boom 70 feet above the ground was not protected against falling "while performing maintenance and inspection work." n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 While performing maintenance and inspection work on the horizontal boom of the Lindenkranar tower crane, the operator is not protected against falling by guardrails or by a safety belt with lanyard attached to a lifeline.

n2 Citation Number 1 for Serious Violation, November 8, 1974.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The evidence reveals that there is no proof that this man was in fact performing maintenance work except from hearsay testimony from the compliance officer. This is an essential element of proof of the citation. The record shows that this witness [*18] was available to testify, but the Secretary failed and neglected to present him. Moreover, the unrebutted testimony of Martone's general superintendent Neal Gardner, was that the crane operator was not permitted to perform maintenance work on cranes. This work was done by the head crane operator, a master mechanic. The crane operator seen by the compliance officer was an itinerant employee who no longer works for Martone. The Secretary made no attempt to refute this testimony.

An additional reason for vacating this citation is the conduct of the Secretary's compliance officer. After the man seen on the crane boom had descended, the Secretary's inspector climbed up to the crane boom with him. He then permitted this employee to walk out upon the crane boom to pose so he could take his photograph in an unprotected location 70 feet above ground.

The Secretary and his compliance officers have the responsibility of preventing exposure of working men and women to work hazards. Encouraging a workman to risk death or serious injury so that a citation against his employer can be issued is so repugnant to the purpose of the Act that express disapproval of such acts must be set forth. [*19] The misconduct of the compliance officer alone would justify vacation of this citation.

Coming now to the citation for non-serious violations, item 1 alleged violation of 29 CFR 1926.500(d)(1). n3 This violation was admitted and, as has already been noted, the amount of Straw's proposed penalty of $40 is reasonable. There is no issue involving item 2. Violation of 29 CFR 1926.25(a) is admitted. n4 No penalty was proposed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The open sided second floor on the west side of the building was more than six feet above the ground and was not guarded by a standard, failing or the equivalent.

n4 Two by four sections of lumber, located on the floor adjacent to the woodcutting area, had protruding nails exposing employees to a puncture hazard.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In item 3 it was alleged that Martone "permitted" the same crane operator to descend from the crane tower without the use of a ladder in violation of 29 CFR 1926.450(a)(1). n5 An essential element of proof of this allegation is evidence of permission. Permission was assumed but [*20] not established by the evidence adduced by the Secretary. The word permit means to consent to expressly or formally (emphasis added). n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Employer permitted an employee to descend the Lindenkranar crane tower framework from an elevation of approximately 70 feet without the use of a ladder.

n6 Webster's Seventh New Collegiate Dictionary.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent denied item 4, but the evidence adduced in support of the allegation of violation of 29 CFR 1926.450(a)(5) by the Secretary is clear. n7 There were no landing platforms, basket guards or other safety devices. No penalty was proposed. There is no issue involving item 5 alleging violation of 29 CFR 1926.500(e)(1)(iv) since the facts of violation have been conceded and the $75 proposed penalty has been found to be appropriate.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 A fixed steel ladder attached to the crane tower, located at the center of the jobsite, is more than 20 feet in height and is not equipped with either landing, platforms, a basket guard, or a ladder safety device.

[*21]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Martone offered no evidence to rebut the allegation of a violation of 29 CFR 1926.701(a)(2) as alleged in item 6. n8 No penalty was recommended.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 A formwork and shoring plan for concrete placement was not available at the jobsite.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

ORDER

It is accordingly hereby ordered that the following be vacated:

1. The citation for serious violation of 29 CFR 1926.550(c)(2) and the proposed penalty of $750.

2. The citation for non-serious violation of 29 CFR 1926.450(a)(1) as described in item 3 and the proposed penalty of $55.

It is further ordered that items 1, 2, 4, 5 and 6 of the citation for non-serious violation be affirmed and that a penalty of $115 be assessed.

BEN D. WORCESTER, Judge, OSAHRC

Dated: JUN 11 1975

Hyattsville, Maryland