BRISCOE/ARACE/CONDUIT, A Joint Venture

OSHRC Docket No. 12135

Occupational Safety and Health Review Commission

March 21, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Louis J. Williams,for the employer

OPINION:

DECISION

BY THE COMMISSION:

This matter is before us by order of Commissioner Moran granting respondent's petition for review of Judge James D. Burroughs' decision, pursuant to 29 U.S.C. 661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"].

Judge Burroughs affirmed a serious violation of 29 CFR 1926.28(a) n1 and a nonserious violation of 29 CFR 1926.500(d)(1). n2 Respondent's exceptions to the affirmance of these items are before us. The Secretary of Labor has filed no response to the exceptions.

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n1 29 CFR 1926.28(a) provides as follows:

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.

n2 29 CFR 1926.500(d)(1) provides:

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)(i) 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.

[*2]

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Respondent was engaged in the construction of a water treatment plant at the time of the OSHA compliance officer's inspection. During the course of his inspection the compliance officer observed employees of respondent working on "beam bottoms" approximately 18 inches wide and 16 feet above the basement floor of the structure. Metal scaffolding was stored below the beam bottoms covering about 70 percent of the floor area. Some of the scaffolding was stacked, but some was in disarray and produced jutting edges. None of the employees was wearing protective equipment. As a result of this condition respondent was cited for a "serious" violation of 29 CFR 1926.28(a). A penalty of $700 was proposed by the Secretary.

The compliance officer also observed a man atop the roof level of the "gallery building" cleaning the deck with an air hose. The perimeter of the roof was unguarded, and the employee came within one foot of the edge, which was 15 feet above ground level. Respondent was cited for a "serious" violation of 29 CFR 1926.500(d)(1), and a penalty of $700 was proposed by the Secretary.

Judge [*3] Burroughs affirmed the citation for serious violation of 1926.28(a) and assessed the $700 proposed penalty. He affirmed the violation of 1926.500(d)(1), but characterized it as not serious because the height from which an employee could fall to the dirt surface was insufficient to establish a serious violation. Accordingly, he reduced the penalty to $200. Respondent's defense that the violation was an isolated occurrence was rejected in that it was an affirmative defense which the Judge held respondent had failed to prove. In addition, he found no evidence on the record to indicate that respondent had exercised reasonable diligence to discover the violations.

Respondent, in its petition for discretionary review and post-hearing brief, takes exception to the Judge's findings and conclusions on three grounds. First, it is contended, citing Brennan v. O.S.H.R.C. & Alsea Lumber Company, Inc., 511 F.2d 1139 (9th Cir. 1975), that the alleged violation of 1926.28(a) was an isolated occurrence of which respondent had no knowledge. Second, respondent asserts that the Secretary must demonstrate feasible measures to be taken by respondent in connection with the 1926.28(a) [*4] violation to abate the hazard and reduce the likelihood of misconduct. It relies upon National Realty & Constr Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) and maintains that the Secretary has made no such showings. Third, respondent takes exception to the finding that the employee involved in the alleged violation of 1926.500(d)(1) was respondent's employee.

Alleged Violation of 1926.28(a)

With respect to respondent's contention that the violation of 1926.28(a) was an isolated occurrence of which it had no knowledge, Judge Burroughs correctly concluded that the matter of isolated occurrence is an affirmative defense. n3 Standard Glass Co., Inc., 1 BNA OSHC 1045, 1971-73 CCH OSHD para. 15,146 (No. 259, 1972); Robert T. Winzinger, Inc., 4 BNA OSHC 1475, 1976-77 CCH OSHD para. 20,929 (No. 6790, 1976). In order to sustain the defense an employer must prove that the employee's action constituting non-compliance was a departure from a uniformly and effectively enforced workrule and the employer had neither actual nor constructive knowledge of the employee's conduct. B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. [*5] 4713, 1976). Here, respondent had adduced no evidence to this effect and Judge Burroughs correctly found that respondent's unprotected employees were clearly visible and that respondent could, with the exercise of reasonable diligence, have known of the violation.

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n3 An "isolated occurrence" defense is a corollary to one of unpreventability. See, for example. Utilities Line Construction Co., 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976). See also National Realty & Constr. Co. v. O.S.H.R.C., supra.

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Respondent's second contention, that complainant has failed to demonstrate feasible compliance measures to be taken by respondent as required by National Realty, supra, also fails. n4 The OSHA compliance officer maintained that a cable could have been installed on which to attach safety belts to prevent employees from falling off the beam bottoms. Respondent presented no evidence rebutting the feasibility of the compliance officer's suggestion or establishing impossibility of compliance. [*6] Respondent's assertion that complainant must show how to prevent employee misconduct is incorrect. See B-G Maintenance Management, Inc., supra and note 3, supra. Accordingly, the serious violation of 1926.28(a) is affirmed.

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n4 Concerning the requirement that complainant prove the feasibility of measures to avoid citation in the context of an alleged violation of 1926.28(a) see Frank Briscoe Company, Inc., 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976).

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Alleged Violation of 1926.500(d)(1)

The Commission, by a divided vote, has reversed its previous position holding that 1926.500(d)(1) is applicable to flat roofs. Under the Commission decisions in Frank Briscoe Company, Inc., 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976) and Central City Roofing Company, Inc., 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), 1926.500(d)(1) has been found to be inapplicable to flat roofs. Although not raised by respondent, it is [*7] undisputed that the alleged violation concerned an unguarded flat roof. Therefore, our recent precedent is controlling, and we vacate the citation for violation of 1926.500(d)(1).

This does not mean that hazardous conditions on flat roofs are to go unchecked. In appropriate circumstances 1926.28(a) may require the use of tied off safety belts and 29 CFR 1926.105(a) may require the use of safety nets another equipment. If no standard is applicable, 29 U.S.C. 654(a)(1) would apply. Central City Roofing, supra (concurring opinion).

Inasmuch as we have decided the 1926.500(d)(1) issue in this manner, we do not reach respondent's third contention, that the man working on the roof was not its employee.

Accordingly, it is ORDERED that the citation for serious violation of 29 CFR 1926.28(a) and proposed penalty of $700 are affirmed, and the citation for non-serious violation of 29 CFR 1926.500(d)(1) is vacated.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The citation charging respondent with failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.28(a) should be vacated because complainant [*8] has failed to establish that respondent had knowledge, either actual or constructive, of the existence of the alleged hazardous condition. The affirmance of the citation by my colleagues on the ground that respondent failed to establish lack of knowledge is a gross miscarriage of justice which demonstrates a lack of understanding of the law. n5

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n5 I have previously commented in some detail in Secretary v. Ocean Electric Corp., OSAHRC Docket No. 5811, November 21, 1975, on the impropriety of such a shift of the burden of proof.

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Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Horne Plumbing and Heating Co. v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Mountain States Telephone and Telegraph Company, 2 OSAHRC 168 (1973). Complainant therefore has [*9] the burden of establishing that the respondent knew or with the exercise of reasonable diligence could have known of the existence of the condition or practice upon which the violation is based.

In the Alsea Lumber case, the United States Circuit Court of Appeals for the Ninth Circuit stated:

"In our view, the Secretary has at least the initial burden of establishing a prima facie case of employer knowledge before the burden of going forward shifts to the employer." 511 F.2d at 1143.

In this case, complainant has not introduced any evidence whatsoever tending to show that respondent had knowledge of the hazardous condition. My colleagues have apparently concluded that knowledge of a hazard can be presumed and that respondent has the burden of rebutting that presumption. Such a conclusion violates the most basic concepts of our system of justice. As the court stated in Alsea Lumber:

"Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system, to date at least no man is held accountable, or subject to fine, for the totally independent [*10] act of another. . . . ."

". . . Not requiring the Secretary to establish that an employer knew or should have known of the existence of an employee violation would in effect make the employer strictly and absolutely liable for all violations and would render meaningless the statutory requirement for employee compliance, 29 U.S.C. 654(b)." n6 511 F.2d at 1145 (emphasis added and footnote omitted).

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n6 These statements were quoted and endorsed by the United States Court of Appeals for the Fifth Circuit in Horne Plumbing and Heating Co. v. OSAHRC, 528 F.2d 564, 570 (5th Cir., 1976).

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I concur with my colleagues for the reason stated in the lead opinion that the citation charging respondent with failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.500(d)(1) should be vacated. I nevertheless refuse to join in the speculation of my colleagues regarding the possible applicability of 29 C.F.R. 1926.28(a) and 1926.105(a) and 29 U.S.C. 654(a)(1) to hazardous conditions on roofs. [*11] n7 Such speculation is unnecessary and improper. Secretary v. Warnel Corp., OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

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n7 In the instant case there can be no violation of 29 C.F.R. 1926.28(a) or 1926.105(a) as to either citation because the heighth involved was not more than 25 feet above the ground or other surfaces. Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975) (dissenting opinion).

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