TED WILKERSON, INC.

OSHRC Docket No. 13390

Occupational Safety and Health Review Commission

June 30, 1981

[*1]

Before: CLEARY, and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Alan M. Wienman is before the Commission pursuant to a direction for review issued by former Commissioner Moran under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision Judge Wienman affirmed two citations issued to Respondent, Ted Wilkerson, Inc., by the Secretary of Labor ("Secretary"). Citation 1 alleged a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n1 in that an employee of Respondent was permitted to ride on and work from the end of a crane truck boom at a height 30 feet above a travelled street without the provision of a boom basket or work platform. Citation 2 alleged a repeated serious violation of the Act for failure to comply with 29 C.F.R. 1926.28(a) n2 in that two employees of Respondent working on the outside edge of a bridge were exposed to a drop of up to 30 feet and were not protected by safety belts and lifelines. [*2] n3 The judge assessed penalties of $700 and $1,600 for the violations, respectively, as proposed by the Secretary. For the reasons that follow, we affirm the judge's decision.

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n1 Section 5(a)(1) of the Act provides:

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

n2 This standard provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n3 This citation also alleged a violation of 29 C.F.R. 1926.500(d)(1) in that the employees were not protected by guardrails. In the complaint, however, the violations were pleaded in the alternative. Counsel for the Secretary stated at the hearing that the complaint was intended to amend the citation in this respect. Because the judge affirmed citation 2 insofar as it alleged a violation of 29 C.F.R. 1926.28(a), he vacated the portion of the citation alleging an alternative violation of section 1926.500(d)(1) as being "moot." No issue concerning the section 1926.500(d)(1) violation originally alleged is before us on review.

[*3]

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I

Respondent was engaged in finishing the surface of a highway bridge in Kansas City, Missouri. The compliance officer testified that, while driving on a public street that passed beneath the bridge, he observed a man being hoisted on the tip of the boom of a crane truck. The Compliance officer turned his vehicle around and returned to the bridge. From a distance of about 200 feet the compliance officer photographed the man on the boom and subsequently observed him from a position directly alongside the truck as the man was again being hoisted. The compliance officer contacted Roy Sanderson, Respondent's leadman in charge of the work crew, who identified the man on the boom as Respondent's employee Graham.

The employee on the boom was engaged in the removal of steel needle beams, used to support concrete forms, from the underside of the bridge. To perform this task the employee loosened the bolts on the beam, tied a cable around the beam, and handed the cable to another employee standing on top of the bridge. The employee on the crane boom was then lowered, the cable connected to a hook on the [*4] boom, and the beam removed.

The compliance officer testified that the employee on the boom was not wearing a safety belt or lifeline. By dropping a tape from the top of the bridge, the compliance officer calculated that the height from the ground to the area where the employee had been raised was approximately 30 feet. The compliance officer testified that hoisting a man as he straddles the end of a telescopic crane boom is a recognized hazard. The compliance officer stated that "there is provisions [sic] made for a bucket or a platform securely mounted in which a man can fasten a safety belt to and be hoisted on this same equipment with no problem." The compliance officer further testified that he knew of no specific safety regulations dealing with this type of activity. He testified that the following hazards are present when an employee rides a crane boom without protective equipment: a misjudgment by the crane operator could cause the person on the boom to be hoisted into the steel and be crushed; a mechanical failure or a hydraulic hose failure could cause a sudden movement of the crane boom which could cause the employee to fall; and the employee could slip and fall to [*5] the ground. n4

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n4 The recording equipment of the court reporter malfunctioned for approximately 14 pages of the compliance officer's testimony. The missing testimony was reconstructed from a summary prepared by Respondent's counsel. The parties agreed that the summary, identified in the case record as J-17, is a complete and accurate record of the unreported testimony.

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Respondent's superintendent at the job site, Bill Stevens, testified that he had not been Graham riding the crane boom on the day of the inspection and had observed the beam removal operation that morning, at which time a basket was being used to raise the employee. Stevens testified that it is not always possible to use a boom basket to remove needle beams because, if the basket is used, the employee sometimes cannot get close enough to tie the cable to the beam. Stevens testified that there were no support columns obstructing the removal operation at the time that it was observed by the compliance officer. He stated, however, that other unspecified [*6] "obstructions" can also prevent the use of the basket. According to Stevens, when the boom basket cannot be used, the employee riding the crane boom must wear a safety belt tied-off to the boom with a lanyard. He testified that to his knowledge no employee had ever ridden on the boom without using a tied-off safety belt. To do so, he stated, would be contrary to instructions given at safety meetings. Stevens further testified that the leadman in charge of the crew removing the beams should have been in a position to observe the employee riding the boom.

II

The administrative law judge affirmed the citation. The judge did not specifically discuss the elements of a section 5(a)(1) violation, but after reviewing the evidence found that a violation had been established. He rejected Respondent's argument that the violation was an isolated occurrence contrary to Respondent's safety instructions. He observed that citation 2 also concerned the failure of Respondent's employees to wear tied-off safety belts when required. In particular, he further noted that the employee on the boom was working under the immediate direction of an experienced leadman. The Judge's decision was directed [*7] for review by former Commissioner Moran, sua sponte, "for error". n5

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n5 After the case was directed for review the Commission issued a supplemental briefing order inviting the parties to address the question of whether a violation of 29 C.F.R. 1926.28(a) was tried by the consent of the parties. In view of our conclusion regarding the alleged section 5(a)(1) violation, it is unnecessary to reach the issue raised in the supplemental briefing order.

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On review Respondent advances several arguments for reversing the Judge's affirmance of the section 5(a)(1) allegation. Initially, Respondent submits that the hazard observed by the compliance officer can be abated by the use of personal protective equipment, i.e., a tied-off safety belt, and that the failure to use such protective equipment gave rise to the issuance of the citation. Therefore, Respondent argues, because 29 C.F.R. 1926.28(a) is a standard specifically applicable to the hazardous condition involved, the citation for violation of section [*8] 5(a)(1) must be vacated.

Respondent also asserts that the Secretary failed to establish the elements of a section 5(a)(1) violation. Respondent argues (1) that there is no evidence to support a conclusion that the practice observed is a recognized hazard in the construction industry, (2) that the evidence does not establish that "serious injury or death would probably result from a fall from the crane boom," and (3) that the Secretary did not establish that the suggested means for abating the hazard were "feasible or reasonable" in the circumstances involved.

The Secretary argues that a citation under section 5(a)(1) was appropriate even though the proper means of abatement includes the use of a safety belt. The Secretary asserts that no specific standard, including section 1926.28(a), "comprehensively deal[s] with the hazard that is at issue", i.e., "not only the failure to provide any device to break a fall if one should occur but also the providing of a method of transportation and a working surface that created a strong possibility, if not a likelihood, that a fall would occur." In the Secretary's view, "only through a citation under section 5(a)(1) can Respondent be required [*9] to provide a safe means of transportation and a safe surface to work from, e.g., a boom basket or a platform, and only through such a citation can the hazard for which respondent was cited be totally eliminated."

The Secretary also argues that the elements of a section 5(a)(1) violation have been established. He asserts that the evidence establishes, not only recognition of the alleged hazard in the construction industry, but that the hazard was recognized by Respondent. Also, the Secretary submits, the hazard involved "is so obvious" that, regardless of industry recognition, it must be classified as a recognized hazard. The Secretary further argues that the description of the work method observed by the compliance officer establishes that the hazard was likely to cause death or serious physical harm and that the use of a basket or platform "was a feasible means of substantially reducing, if not eliminating, the hazard involved. . . ."

III

A

Under the Act, a citation alleging a violation of section 5(a)(1) is inappropriate when a specific standard applies to the facts. Mississippi Power & Light Co., 79 OSAHRC 109/D2, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, [*10] 1979); Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHC 1546, 1977-78 CCH OSHD P21,887 (No. 13810, 1977). A citation under section 5(a)(1) will not be vacated, however, where the hazards presented are interrelated and not entirely covered by any single standard, Crescent Erection Co., 77 OSAHRC 145/B12, 5 BNA OSHC 1711, 1976-77 CCH OSHD P20,955 (No. 2159, 1977), or where a specific standard does not address the particular hazard for which the employer has been cited. Armstrong Cork Co., 80 OSAHRC    , 8 BNA OSHC 1070, 1980 CCH OSHD P24,273 (No. 76-2777, 1980), aff'd, No. 80-1580 (3d Cir. Nov. 3, 1980); U.S. Pipe & Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD P22,514 (No. 11739, 1978). Here, the hazard cited by the Secretary was posed not only by the employee working to loosen the beams while straddling the telescopic boom, but also by the fact that he rode the boom while it was being raised and lowered to position him for the beam removal. We agree with the Secretary that the use of a safety belt tied-off to the boom would not have been adequate to fully eliminate the hazard involved. Respondent's work method itself creates an increased [*11] likelihood that the employee being raised will fall. Accordingly, because no specific standard, including section 1926.28(a), entirely covers the hazard alleged, citation under section 5(a)(1) was proper.

B

In order to establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized, the occurrence of an incident is reasonably forseeable, and the likely consequence in the event of an incident is death or serious physical harm to its employees. Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC    , 9 BNA 1681, 1691, 1981 CCH OSHD P25,363 at p. 31,547 (No. 76-450, 1981). The Secretary must also demonstrate that there were feasible means available to the employer to abate the hazard. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); see Continental Oil [*12] Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978). Furthermore, it is the hazard, not a specific incident that resulted in injury, which is relevant in determining the existence of the recognized hazard. See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977).

We conclude that the evidence of record establishes that the hazard involved in riding on and working from a telescopic boom is a recognized hazard within the meaning of section 5(a)(1). Respondent does not dispute that the use of a boom basket is preferable to straddling the boom. Respondent's witness further testified that Respondent had a work rule requiring the use of a tied-off safety belt while riding the boom if using a boom basket was not possible. That Respondent provided and encouraged the use of a boom basket, and required the use of personal protective equipment when the basket was not used, indicates that Respondent [*13] recognized the existence of a hazard when an employee rides on and works from a crane boom without the protection of a boom basket and a tied-off safety belt. See Armstrong Cork Co., supra; Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979) (lead and concurring opinions), aff'd, Nos. 79-7622 & 79-7628 (9th Cir. May 18, 1981). See also Crescent Erection Co., supra.

We also conclude that Respondent failed to render its worksite free of the recognized hazard. Although the employee riding the boom was totally without protection, Respondent argues that it had a workrule covering the situation and its superintendent at the site was not aware of circumstances involving the employee on the boom. In essence, Respondent contends that the violation was an "isolated incident . . . which could not be foreseen or prevented. . . ." See Bomac Drilling, supra. We reject this argument.

First, Respondent's argument is premised on the existence of an adequate workrule. We find, however, that under the facts of this case the wearing of a tied-off safety belt while working from and riding a telescopic boom [*14] does not reduce the multiple hazards to the employee to the same extent as the use of a bucket or platform attached to the boom. Moreover, as discussed below, the facts here also do not show that the use of a bucket or platform in this instance was infeasible. Thus, even had Respondent adequately enforced its workrule, the facts do not support a finding that Respondent had taken all necessary precautions to render the worksite free of the hazards to the employee on the boom. n6

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n6 Commissioner Cottine rejects Respondent's argument solely on this basis because Respondent had no workrule that would have freed the worksite of the recognized hazard even if the workrule had been implemented. An additional analysis of whether Respondent's leadman could have known that employees would ride the boom without protection is unnecessary because, even if the Respondent knew that the employee was riding the boom without protection, it would not have prevented the violation by enforcing its inadequate workrule.

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Second, the [*15] employee on the boom was a member of a four-man crew working under the immediate direction of an experienced leadman. Respondent's superintendent testified that the leadman was "in charge" of the beam removal operation in that he "directs the men, shows them what to do and helps them out." The superintendent further acknowledged that the leadman would have been in a position to observe the employee on the boom. We find that Respondent's leadman knew, or with the exercise of reasonable diligence could have known, of the presence of the violation and that his knowledge properly is imputed to Respondent. Turner Communications Corp. v. OSHRC, 612 F.2d 941 (5th Cir. 1980); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977); Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 13689, 1978 CCH OSHD P22,551 (No. 15919, 1978). Accordingly, Respondent's argument that it rendered the workplace free of the hazard because of its workrule and the isolated nature of the incident is rejected.

Furthermore, we conclude that the Secretary demonstrated that feasible means were available to abate the hazard. The compliance [*16] officer testified that a bucket or platform attached to the boom and to which the employee could tie off would abate the hazard. Furthermore, Respondent acknowledged its possession and use of the type of bucket described by the compliance officer. This evidence is sufficient, by itself, to prove that a feasible abatement method exists that would provide protection against the cited hazard. Therefore, the burden shifted to Respondent, as part of its case in rebuttal, to produce evidence either that use of the method suggested by the Secretary was infeasible in the particular circumstances involved or that an alternative method of abatement as effective as the proposed method was used to free the worksite of the hazard. See Beaird-Poulan, Division of Emerson Electric Co., supra. Respondent did not meet this burden. Respondent's superintendent admitted, as corroborated by a photographic exhibit introduced by the Secretary, that there were no bridge support columns preventing the use of the boom bucket when the compliance officer observed the scene. He further testified that other unspecified obstructions could preclude the use of a bucket, but failed to identify any [*17] particular obstruction in the cited instance. Although it is apparent that under some circumstances the use of a bucket is not feasible, this testimony is insufficient to prove that the abatement method suggested by the Secretary was not feasible in the circumstances here. Nor has Respondent established that it had adopted an equally effective, alternative method to that suggested by the Secretary for freeing the worksite of the hazard. As discussed previously, the employee's use of a tied-off safety belt while riding the boom is not as effective a means of protection as the use of a bucket or platform.

We next determine whether the hazard was likely to cause death or serious harm to Respondent's employee. A hazard is likely to cause death or serious harm if an incident is reasonably foreseeable and the likely result of an incident would be death or serious harm. Bomac Drilling, supra. n7

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n7 Commissioner Cleary believes that it is inappropriate to inquire into whether an incident is reasonably foreseeable in determining whether an employer violated 5(a)(1). Bomac Drilling, supra (Cleary, concurring). He notes that the United States Court of Appeals for the Second Circuit has also stated that reasonable foreseeability is an improper inquiry under 5(a)(1). Pratt & Whitney Aircraft v. Secretary of Labor, 9 BNA OSHC 1554, 1557, 1981 CCH OSHD P25,329 at p. 31,412-13 (2d Cir. April 20, 1981). However, the discussion is consistent with the precedent established by the Commission majority in Bomac Drilling, supra, and Commissioner Cleary agrees to follow that precedent for the purpose of deciding this case.

[*18]

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We conclude that the occurrence of an incident was reasonably foreseeable on the basis of the operation performed by the employee on the boom, the multiple hazards to which he was exposed, and the absence of any protection offered by Respondent. In addition, we conclude that the hazard presented was likely to cause death or serious physical harm. At a minimum, Respondent's employee was exposed to a hazard of falling about 30 feet onto a public highway. Under these circumstances, the likely result of a fall would be serious bodily injury or death. See Jensen Construction Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979). We therefore find that the Secretary established each of the elements of a section 5(a)(1) violation. For these reasons, we affirm the judge's decision finding a violation of section 5(a)(1) of the Act.

IV

A

After discussing the crane boom incident with Respondent's leadman, the compliance officer went to the top of the bridge in an attempt to locate Respondent's job superintendent. Before locating the superintendent, however, the compliance officer observed two of Respondent's [*19] employees stripping forms while standing on an unguarded walkway along the edge of the bridge. The compliance officer testified that in his opinion the walkway on which the employees were working was a standard bridge plank 12 inches wide. The employees working on the walkway were using no safety equipment to protect them from falling. By dropping his tape measure over the edge of the bridge, the compliance officer determined that the height from the walkway to the ground was between 18 and 23 feet. The compliance officer testified that the employees were presented with the hazard of falling from the walkway to the ground while stripping the forms. He considered the probability of a fall to be quite high because the forms being removed were old, increasing the likelihood that the forms would stick to the concrete and be more difficult to remove.

Respondent's superintendent testified that he had not observed the employees working on the walkway without protective equipment. He stated that the employees were supposed to be standing on the inside of a parapet wall bordering the edge of the bridge, prying the forms with 3 foot long "L" bars. According to the superintendent, the [*20] employees had safety belts available and had been instructed to attach the belts to a lifeline erected along the parapet wall when working on the walkway. The superintendent had not observed the employees working on the walkway without tied-off safety belts, but did not dispute the compliance officer's report of the incident. In fact, the employees were reprimanded by the superintendent in the compliance officer's presence. Based on the above, a citation alleging a repeated serious violation of the Act for failure to comply with 29 C.F.R. 1926.28(a) was issued by the Secretary and affirmed by the judge.

B

On review, Respondent advances several arguments for reversing the judge's decision and vacating the citation. Respondent first argues that section 1926.28(a) is "in conflict with and contrary to" section 5(a)(1) of the Act because it constitutes an attempt by the Secretary to promulgate as a standard a general duty clause with a lesser burden of proof than that imposed by Congress in section 5(a)(1). The Commission has previously considered and rejected this argument and we do so here. Lehr Construction Co., 78 OSAHRC 12/B4, 6 BNA OSHC 1352, 1979 CCH OSHD P22,542 (No. [*21] 7240, 1978). Section 1926.28(a) was adopted as a valid specific standard under section 6(a) of the Act, 29 U.S.C. 655(a), and it is neither contrary to nor in conflict with section 5(a)(1). Id.; S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) (lead and concurring opinions), pet. for rev. filed, No. 79-2358 (5th Cir. June 7, 1979).

Respondent also attacks section 1926.28(a) as being unenforceably vague. The Commission has previously held that section 1926.28(a) properly is read to require the wearing of personal protective equipment where a fall hazard is presented. E.g., Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979). The conclusion that the standard is not unenforceably vague as applied in this case is further supported by the evidence of Respondent's work rule requiring employees to use safety belts and lifelines when working on the walkeay outside the bridge wall. Id.

Respondent further contends that the 25 feet limitation in 29 C.F.R. 1926.105(a) n8 preempts the application of section 1926.28(a) to a factual situation, [*22] such as the instant one, involving heights of less than 25 feet. The Commission previously has rejected this argument and sanctioned the application of section 1926.28(a) to fall distances of less than 25 feet. E.g., Joseph Bucheit & Sons Co., 78 OSAHRC 43/E9, 6 BNA OSHC 1640, 1978 CCH OSHD P22,770 (No. 14739, 1978).

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n8 This standard provides as follows:

1926.105 Safety nets.

(a) 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.

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Respondent also argues that the Secretary did not sustain his burden of proving that it had knowledge of the serious violation observed by the compliance officer. n9 Respondent asserts that, because its superintendent did not observe the violation, it had no knowledge of and cannot be held responsible for the violation. Respondent further argues that it cannot be held responsible for the [*23] violation because the evidence establishes that the employees' failure to wear tied-off safety belts was an "isolated incident" contrary to safety instructions enforced by Respondent. We agree with the judge that the asserted defense of unpreventable employee misconduct was not established. "In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule." H.B. Zachry Co., 80 OSAHRC    , 7 BNA OSHC 2202, 2206, 1979 CCH OSHD P24,196, at p. 29,425 (No. 76-1313, 1980), aff'd, No. 80-1357 (5th Cir. May 2, 1981). Respondent's superintendent testified that Respondent held weekly safety meetings and instructed its employees to use tied-off safety belts when working on the walkway outside the parapet wall. The mere establishment of a work rule, however, is not sufficient to avoid responsibility for a violation. The evidence in this case does not indicate that Respondent effectively communicated and enforced its rule regarding the use of safety belts and lines. As noted by the judge, on the day of the inspection, out [*24] of a crew of ten to twelve employees, three employees, i.e., the two employees on the walkway and the employee on the crane boom, were observed working without the fall protection purportedly required by Respondent. In addition, the employees working without fall protection were doing so in open view when they were observed by the compliance officer. It is reasonable to conclude that an employer's workrule is inadequately communicated and enforced when multiple violations of that workrule occur openly despite the presence of a supervisor on the jobsite. See Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978). The record also establishes that Respondent had twice before been cited for the failure of its employees to wear safety belts when working near the edge of a bridge. As a result of these prior citations, Respondent should have been aware of the need for more effective enforcement of its work rule. For these reasons we conclude that Respondent failed to establish that the cited failure to comply with section 1926.28(a) resulted from unpreventable employee misconduct.

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n9 Section 17(k) of the Act, 29 U.S.C. 666(j), provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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C

Finally, we reject Respondent's argument that the violation improperly was found to be a repeated violation. n10 In this respect Respondent argues that a repeated violation cannot be found because previous violations of the same standard by Respondent occurred on different projects under different supervisors and because of variations in the height at which Respondent's employees were working at the times of the various violations.

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n10 Section 17(a) of the Act, 29 U.S.C. 666(a), provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[*26]

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The stipulation entered into by the parties concerning two prior citations issued to Respondent alleging section 1926.28(a) violations provides a sufficient basis for concluding that the violation in the present case is a repeated violation. The parties stipulated that in February 1974 a citation alleging a nonserious violation for failure to comply with section 1926.28(a) was issued to Respondent for failure of its employees working near the edge of a bridge more than 25 feet above ground to wear safety belts and lifelines. The parties also stipulated that in June 1974 a citation alleging a serious violation for failure to comply with section 1926.28(a) was issued to Respondent for the failure of six of its employees working at the edge of a bridge, exposed to a fall of 23 feet, to wear safety belts and lifelines. Both of these citations were not contested by Respondent and became final orders of the Commission. 29 U.S.C. 659(a).

Thus, at the time that the citation in the present case was issued, April 29, 1975, there were two Commission final orders against Respondent for violations substantially [*27] similar to the violation at issue here. Therefore, the violation in the present case properly was found to be a repeated violation. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). The fact that the prior violations occurred on different worksites and under different supervisors does not bear on our determination that the instant violation is repeated. Id. We also reject the assertion that the present violation is not substantially similar to the previous violations because of the variations in the heights at which the employees were working at the time of the violations. The differences between the height of 18-23 feet here and the heights of 23 feet and more than 25 feet for the previous violations are not material dissimilarities for the reasons set forth in Potlatch and succeeding cases. n11 See Automatic Sprinkler Corp. of America, 80 OSAHRC    , 8 BNA OSHC 1384, 1980 CCH OSHD P24,495 (No. 76-5089, 1980), and cases cited therein.

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n11 This case was tried and decided prior to our decision in Potlatch. Usually when there has been an intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense. See, e.g., Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976). However, in view of the facts as discussed above and Respondent's defense to the repeated violation, we conclude that the defense here would not have been tried any differently had Potlatch been issued before the hearing. Therefore we need not offer Respondent an opportunity for a remand. Cf. Belger Cartage Serv., Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).

[*28]

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V

We affirm the judge's decision finding a violation of section 5(a)(1) of the Act and a repeated serious violation for failure to comply with the standard at 29 C.F.R. 1926.28(a). Respondent has not challenged on review the amount of the penalties proposed by the Secretary and assessed by the judge. We find that the penalties of $700 and $1,600, respectively, are appropriate and affirm the judge's assessment thereof.

Accordingly, the judge's decision is affirmed. IT IS SO ORDERED.