C. KAUFMAN, INCORPORATED

OSHRC Docket No. 14249

Occupational Safety and Health Review Commission

January 11, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

U.S. Dept. of Labor, Regional Solicitor

Kenneth F. Kahn, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On February 18, 1976, Administrative Law Judge Ben D. Worcester vacated a citation alleging a "serious" violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The citation alleged that respondent had not complied with the occupational safety and health standards at 29 CFR 1910.252(e)(1) and 1926.28(a). It stems from the failure of an employee of respondent to use a tied-off safety belt while performing a "tack weld" on a scaffold. On March 19, 1976, I granted the petition for discretionary review filed by the Secretary of Labor and invited submissions on the following main issue:

Whether the Administrative Law Judge erred in vacating the citation on the findings that the Secretary of Labor had failed in his burden of proof and that protection of respondent's employee was "neither feasible nor necessary."

In his petition, the Secretary argues that the Judge should not have vacated [*2] the citation based on his finding that measures required by the standard were not "necessary"; that the Judge erroneously required the Secretary to prove the "feasibility" of compliance; that respondent had not proved impossibility of compliance, but merely that compliance was inconvenient; that the Judge failed to consider all the evidence of record, including respondent's evidence, but instead vacated the citation because he determined that the evidence presented during the Secretary's case-in-chief was insufficient; and that because respondent's general practices was not to require safety belts during tack welding, the Judge erroneously found that respondent lacked knowledge of the violation. Respondent argues essentially that the exposed employee was an experienced employee who was called upon to exercise his judgment in protecting himself; that the Secretary may not substitute his judgment for that of the employee; and that the employee had violated instructions of his formen. We reverse the Judge's decision.

Respondent, C. Kaufman, Inc., performs plumbing and heating work at various worksites in and around Philadelphia, Pennsylvania, where it maintains its principal office. [*3] On July 11, 1975, respondent was engaged in the renewal of the deaeration system of a boiler at the Pennsylvania Forge Works Company. Mr. Vincent Gallagher, a compliance officer of the Occupational Safety and Health Administration had been conducting a routine inspection of the entire forge works when he saw in the boiler room a scaffold that had been erected by respondent. Planks leading to the scaffold's platform and the platforms themselves lacked railings. Mr. Gallagher contacted Mr. Richard Baker, respondent's foreman, and informed him of the condition. He was assured by Mr. Baker that employees working on the scaffold would be protected by railings or safety belts. Mr. Gallagher then left the boiler room.

About 45 minutes later, Mr. Gallagher again passed by the boiler room. He saw sparks falling down from the area where he knew the scaffolding was, and decided to investigate whether any employee on it was protected against falling. As he entered he saw Mr. Joe Baker, an employee, descending from the highest point on the staging, a height of about 19 to 23 feet, without the protection of a railing and while not wearing a safety belt. Although Mr. Gallagher had not [*4] actually seen Joe Baker working without a tied-off safety belt, the testimony of the exposed employee, taken during respondent's case-in-chief, persuasively establishes that no safety belt had been worn while he was working. n1

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n1 Judge Worcester was concerned with the failure of the Secretary to submit evidence of an actual observation of a welder making a tack weld without fall protection. In his decision he states:

The Secretary must prove by a preponderance of the evidence that there was in fact a violation of the cited standard. Actual observation of a welder making a tack weld at an elevation of 19 feet without any restraint to prevent a fall might be sufficient to establish a prima facie case, but the Secretary submitted his case without adducing credible evidence of a violation. It was the respondent who [sic] presented the witness, Baker, who admitted that he had in fact made a tack weld without tying off by using a safety belt and lanyard.

On review, Kaufman lays much emphasis on this omission by the Secretary. We note, however, that respondent did not object, by means of a motion for involuntary dismissal under Fed.R.Civ. P. 41(b) at the close of the Secretary's case-in-chief, to the sufficiency of the evidence presented by the Secretary. Instead, respondent presented evidence during its case-in-chief, and thereby waived any objection to the sufficiency of the Secretary's case-in-chief. Lee Way Motor Freight, Inc., 75 OSAHRC 20/E12, 3 BNA OSHC 1843, 1846, 1975-76 CCH OSHD para. 20,250 (No. 7674, 1975). The Judge was therefore bound to decide the case in light of the entire record before him. See Harrington Constr. Corp., 77 OSAHRC 7/B3, 4 BNA OSHC 1471, 1473-1474, 1976-77 CCH OSHD para. 20,913 (No. 9809, 1976). See also Bradford Builders v. Sears, Roebuck & Co., 270 F.2d 649 (5th Cir. 1959). Considering all the evidence of record, we conclude that the requisite evidence is present.

[*5]

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The cited standards read as follows:

1910.252 Welding, cutting, and brazing.

* * *

(e) Protection of personnel --

(1) General --

(i) Railing. A welder or helper working on platforms, scaffolds, or runways shall be protected against falling. This may be accomplished by the use of railings, safety belts, life lines, or some other equally effective safeguards.

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.

Taken together, these standards required respondent to protect its employees with either railings, tied-off safety belts, n2 or "some other equally effective safeguards." Contrary to the standards, a welder employed by respondent, Mr. Joe Baker, worked without any protection from the danger of falling while performing what is known as a "tack", a preliminary weld that secures in place a pipe that is to be permanently [*6] welded later. Unlike a weld, which might consume thirty to forty-five minutes for a six-inch pipe, a tack would take only two to three minutes of actual work. Respondent's rule was that welders making welds on a scaffold were to be tied off. Mr. Richard Baker, the job foreman, so told the welders at the beginning of this job. The evidence is conflicting, however, on whether respondent had such a rule for tacks. Richard Baker testified that for tacks, he left employees to their own discretion, expecting them to tie off only if the work situation was "extremely dangerous" or if tying off was not too time-consuming in relation to the expected time it would take to perform the tack weld. He also testified that Joe Baker had not been specifically instructed just before the tack in question to tie off.

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n2 A standard requiring safety belts requires that they be tied off. See e.g., Hoffman Constr. Co., 75 OSAHRC 31/E12, 2 BAN OSHC 1523, 1525, 1974-75 CCH OSHD para. 19,275 (No. 644, 1975). Parenthetically we note that the Commission precedent in Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976) is not applicable to this case. Here 29 CFR 1926.28(a) has been cited in conjunction with another standard that identifies both the hazard to be abated (falling) as well as methods of abatement. Thus, the Secretary need not in this case have introduced evidence describing feasible means of protection. Compare Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1976), pet. for review filed, No. 76-1467 (5th Cir., February 19, 1976).

[*7]

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Mr. Joe Baker, however, testified that he had indeed been instructed by Richard Baker, his foreman, to tie off during the tack. He testified that he had not tied off because he had thought it unduly time consuming and unnecessary. He cited the good quality of the work surface provided by the staging and planks, and thought that because tying off would have required him to change positions twice, it would have doubled the otherwise short amount of time needed to perform the tack. Later, when he made a permanent weld, he was tied off.

It is possible that Judge Worcester may have credited the testimony of Joe Baker rather than that of Richard Baker, for in his decision, he stated that "[t]here is no proof that anyone employed by Kaufman in a supervisory capacity knew or is presumed to have known that [Joe] Baker made a tack weld without tying off." On the other hand, Judge Worcester's opinion did not mention the testimony of Richard Baker, and therefore it could be said that in making the quoted finding, he did not evaluate the relative credibility of the two witnesses at all. This may have been the [*8] case if he had simply overlooked the testimony of Richard Baker or if he had erroneously thought that testimony pertaining to work rule was irrelevant because the opinion of an experienced employee regarding the need for fall protection was the controlling point.

Whether the Judge's finding reflects a credibility evaluation need not be resolved here, for the Commission could not adopt it in any case. It is the policy of the Commission to ordinarily accept an Administrative Law Judge's evaluation of the credibility of witnesses, (see e.g., CTM, Inc., 77 OSAHRC 136/C2, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,597 (No. 13008, 1976)), for it is the Judge who has lived with the case, heard the witnesses, and observed their demeanor. n3 Nevertheless, it is the Commission, and not its Administrative Law Judges, that is ultimately responsible for the findings entered. n4 Thus, before it decides to defer to a Judge's credibility evaluation, n5 the Commission may require it to be carefully and impartially made in light of the entire record, n6 and not be materially distorted by an erroneous view of the legal issues. n7 To assist it in its review function and to comply with [*9] statutory requirements, the Commission has also required that a Judge's view of a credibility question be stated n8 and explained. P & Z, Inc., No. 76-431 (December 15, 1977); 5 U.S.C. 557(c), 8(b) of the Administrative Procedure Act, 5 U.S.C. 551 et seq. Here, all of these prerequisites are unfulfilled.

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n3 Evansville Materials, Inc., 77 OSAHRC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975); cf. River Terminal Railway Co., 75 OSAHRC 13/A2, 3 BNA OSHC 1808, 1975-76 CCH OSHD para. 20,215 (No. 4419, 1975).

n4 5 U.S.C. 557(b). See generally Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 492 (1951). See also Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2d Cir., August 29, 1977) (slip op. at 5592); Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976); K. Davis, Administrative Law Treatise 10.04 (1958).

The question of what weight the Commission should accord to a Judge's resolution of an ultimate factual issue, where the Commission has deferred to the Judge's credibility determination on a subsidiary factual issue, is treated in the Commission precedent in Okland Constr. Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976). Here, a Judge's possible credibility evaluation has not been adopted.

n5 Adolph Coors Co. v. F.T.C., 497 F.2d 1178, 1184 (10th Cir. 1974), cert. denied, 419 U.S. 1105 (1975); Retail, Wholesale & Department Store Union, AFL-CIO v. N.L.R.B., 466 F.2d 380, 386-387 (D.C. Cir. 1972); Local 441, International Brotherhood of Electrical Workers, AFL-CIO, 22 NLRB No. 24, 91 LRRM 1348 (1976); see House of Lord's, Inc., 69 FTC 44, Trade Reg. Rep. para. 17,437, 18 Ad.L.2d 599 (1966).

n6 Capa Iron Works, Inc., 77 OSAHRC 42/D13, 5 BNA OSHC 1221, 1977-78 CCH OSHD para. 21,712 (No. 14275, 1977) (concurring and dissenting opinion); Western Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1315-1316, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976) (concurring and dissenting opinion), rev'd and remanded, No. 76-1703 (8th Cir., August 23, 1977).

n7 See Allis-Chalmers Corp. v. O.S.H.R.C., 542 F.2d 27, 30 (7th Cir. 1976), aff'g 75 OSAHRC 86/F5, 3 BNA OSHC 1629, 1975-76 CCH OSHD para. 20,065 (No. 5599, 1975). At least one federal court has looked to this factor to govern its own proceedings. McGowan v. United States, 296 F.2d 252, 254 (5th Cir. 1961). We adopt it here by analogy.

n8 In addition to a plain statement of the matter, the Judge should state why his evaluation is necessary or relevant to the issues and avoid discussions that will unnecessarily impugn the character of a witness. We do not, however, wish to discourage the prudent use of alternative findings of facts where the Judge is of the view that such findings will expedite a proper disposition by the Commission. See Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1114, 1975-76 CCH OSHD para. 20,589 (No. 1263, 1976).

[*10]

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The Judge's possible credibility determination was not reduced to writing, his opinion does not mention the testimony of Richard Baker, and it does not state any reasons why his account is less credible than that of Joe Baker's. Any credibility evaluation therefore was not adequately explained and does not merit deference. If the Judge's finding does not reflect a credibility evaluation because the Judge overlooked the testimony of Richard Baker, then the Judge's finding was not made in light of the entire record, does not resolve an important subsidiary factual issue (the question of credibility), and therefore cannot be adopted by the Commission. The same conclusion would follow if the Judge had viewed the work rule issue as immatrial because he thought that only the employee's view of the need for fall protection was controlling.

These deficiencies would ordinarily form a basis to remand to the Judge for further consideration and explanation. Evansville Materials, Inc., 77 OSAHRC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975); P & Z, Inc., supra. In order [*11] to bring this adjudication to a close without further delay and because we think that the credibility question here is open to only one answer, however, we shall resolve the problem now and without remand. n9 We find from an examination of Joe Baker's testimony regarding respondent's work rules that his statements on the matter were not more worthy of belief than his foreman's and, therefore, that respondent did not have a work rule requiring that welders tie off while making tacks. His testimony concerning the instructions he received from Richard Baker would be consonant with that of his foreman's except that the work rule described by Richard Baker was limited to permanent welds, while Joe Baker stated that it applied more broadly to include tack welds. Yet, his won actions were more consistent with the rule described by Richard Baker. Our view takes full account of the circumstances surrounding Joe Baker's inconsistent statements during the "walkaround." Compliance officer Gallagher testified that when he first spoke to Joe Baker, he was told that he had not been instructed by his formean to tie off; but after Joe Baker heard Mr. Gallagher talking to the foreman, Joe Baker told [*12] Mr. Gallagher that he had indeed been told to tie off. On the other hand, Richard Baker, in his testimony on this matter, appears to have presented a more straightforward and frank description of the respondent's actual practices. For these reasons, we accord his statements greater weight.

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n9 Cf. Accu-Namics, Inc. v. O.S.H.R.C., supra note 4.

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We now turn to the principles controlling our disposition. It is well settled that if an employer chooses the technique of the safety belt and lanyard to protect his employees against falls, he must do more than make lanyards and safety belts available and instruct employees to use them. He must at the very least have uniformly and effectively enforced work rules, (see B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 21,098 (No. 4713, 1976)), which, if follwed, would implement the requirements of the standards and thereby secure to employees the protection the standards require. The work rules, in other words, [*13] must "track" the requirements of the standards. The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1205-1206, 1977-78 CCH OSHD para. 21,696 (No. 11015, 1977); Dic-Underhill, A Joint Venture, 77 OSAHRC 46/A2, 5 BNA OSHC 1271, 1273, 1977-78 CCH OSHD para. 21,721 (No. 9561, 1977); Utilities Line Constr. Co., 76 OSAHRC 121/A2, 4 BAN OSHC 1681, 1684, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976); Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1786, 1976-77 CCH OSHD para. 21,234 (No. 5209, 1976), aff'd, No. 76-2166 (7th Cir., December 14, 1977). We need not consider in this case whether any work rules respondent had were uniformly and effectively enforced, however, for we find that respondent's work rules did not requires safety belts in the circumstances required by the standards. And inasmuch as Joe Baker's failure to tie off during the tack weld was entirely consistent with his employer's safety practices, respondent must be charged with knowledge of the violation. See e.g., Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1144, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977).

We note that Judge Worcester [*14] found that Joe Baker's testimony that tying off was "unnecessary" was more credible than that of the compliance officer's, which he found to be "of no probative value." n10 This credibility determination, even if accepted, would not affect the disposition, because the factual question to which it relates is not material. As noted above, the cited standards require fall protection for welders. There is no discretion to disregard them when their protection is thought to be "unnecessary." n11 Similarly, we cannot approve the intimation in Judge Worcester's opinion that an experienced employee may be permitted to disregard the standards' requirement for fall protection. It has been our view that employers are required to provide to all their employees, experienced and inexperienced alike, the protection that occupational safety and health standards are designed to accord to them. n12 For these same reasons, we hold that employers are not permitted to delegate to their employees a choice in this matter, and we must reject respondent's argument that the Secretary may not substitute his judgment on the question of fall protection for that of an experienced employee.

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n10 The Judge's opinion reads in pertinent part as follows:

. . . Baker's testimony that, based upon his more than 25 years experience, tying off under the circumstances was neither feasible nor necessary was not disputed by the Secretary.

* * *

It may be that even a few seconds of work activity on this scaffold would unnecessarily subject a welder to risk of a fall which could have been prevented, but the welder who was in the scaffold, relying on his quarter of a century of experience in this kind of work and the actual conditions at the site, said that tying off while tack welding was not only not feasible but also unnecessary. The Secretary's compliance officer, Gallagher, whose only qualification so far as the record revals is three and one-half years as an employee of the Secretary of Labor, did not take time to ascend the scaffold. Obviously, his opinion when weighed against that of the man who was working there, a skilled workmen of many years of experience, is of no probative value. If this were not so, it would be logical to conclude that Gallagher would have been offered as a rebuttal witness. The burden of proof was not met.

n11 See F.X. Messina Constr. Corp. v. O.S.H.R.C., 505 F.2d 701 (1st Cir. 1974); Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1010-1011, 1974-75 CCH OSHD para. 19,526 (No. 2818 etc., 1975), aff'd, 534 F.2d 541 (3d Cir. 1976); B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1284, 1976-77 CCH OSHD para. 21,098 (No. 4713, 1976).

We note that the the facts of this case do not present the question of whether the violative condition was de minimis. In cases where they do, the Commission has the power to hold that abatement is not required. See e.g., Van Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20,633 (No. 5007, 1976).

n12 See e.g., Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1086, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977); Cornell & Co., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1739, 1977-78 CCH OSHD para. 22,095 (No. 8721, 1977); Cornell & Co., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1020, 1976-77 CCH OSHD para. 21,532 (No. 9353, 1977), and cases cited therein. Our views on this matter are also consonant with those of the Second Circuit as expressed in Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2d Cir., August 29, 1977) (slip op. at 5597) (". . . the experience of the injured employee has nothing to do with liability under the Act.").

[*16]

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Other matters in this case may now be disposed of. We note that Judge Worcester relied on testimony by Joe Baker that tying off while performing the tack in question would not have been "feasible" because to tie off, Baker would have had to change position twice, and this would have prolonged the making of the tack. We note, however, that under our precedent the proper inquiry is whether compliance is impossible, and that it does not appear that tying off could not have been done or would have precluded the accomplishment of the tack weld. This finding is enough to reject a defense of impossibility. General Steel Fabricators, Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD para. 22,104 (No. 13646, 1977); Taylor Building Associates, Inc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).

Respondent also appears to contend that the use of a safety belt would have been more hazardous than not tying off at all. n13 The Commission has not read section 5(a)(2) so literally as to require a form of compliance that will diminish the safety of employees. [*17] We have required, however, employers to show affirmatively that the hazards of compliance are greater than the hazards of non-compliance, that they have used available alternative protective means, and that an application for a variance would have been inappropriate. This is well-settled. See General Steel Fabricators, supra. In this case, however, we find no evidence that tying off would have been more hazardous than not tying off. Although tying off would have required a momentary lapse in safety belt protection while the employee changed positions to tie off again, the fall hazard from this cannot be said to be greater than the hazard of not tying off at all. n14 Thus, the first element of the defense is not established.

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n13 We note that on review Kaufman has never explicitly raised the "greater hazards" defense we discuss here. It has instead cited the belief of the exposed employee that he could limit his exposure time by not tying off only as the motive explaining the employee's actions. The truth of the employee's statement is not relied upon in Kaufman's brief.

n14 This case therefore does not present the "Catch-22" situation discussed in U.S.. Steel Corp. v. O.S.H.R.C., 537 F.2d 780 (3d Cir. 1976), where it was claimed that the process of erecting a safety net would have exposed other employees installing the nets to falls.

[*18]

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We also conclude that the violation was "serious" within the meaning of section 17(k) of the Act. We accept the testimony of the compliance officer that in the event of a fall from the height respondent's employee was working (about 19 to 23 feet), a substantial probability of death or serious physical harm could have resulted. We also think that inasmuch as Joe Baker's failure to tie off during a tack weld was entirely consistent with his employer's safety practices, respondent knew, or with the exercise of reasonable diligence could have known, of the violation.

We find that a penalty of $300 is appropriate, and we reject the Secretary's proposal of $800. Respondent has a history of one previous violation; in view of its unwillingness to require fall protection in all work situations and especially after having been previously notified of the need for fall protection by the compliance officer, its good faith is questionable. Nevertheless, the size of its business is medium to small, and the gravity of the violation was moderate.

Accordingly, the citation is affirmed, and a penalty of $300 is [*19] assessed. So Ordered.