MINNOTTE CONTRACTING & ERECTION CORPORATION

OSHRC Docket No. 15919

Occupational Safety and Health Review Commission

February 7, 1978

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

H. W. Pfeifer, Vice President, Minnotte Contracting & Erection Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION: A September 7, 1976, decision of Review Commission Judge David H. Harris is before the Commission pursuant to a direction for review issued by former Commissioner Robert D. Moran under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. The Judge affirmed a citation for serious violation, alleging that respondent, Minnotte Contracting & Erection Corp., had failed to comply with the requirements of the safety standard published at 29 C.F.R. 1926.451(u)(3). n1 A $550 penalty was assessed.

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n1 The cited standard provides, in pertinent part, as follows:

1926.451 Scaffolding.

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(u) Roofing brackets.

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(3) A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. . . . This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.

[*2]

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Although the direction for review did not specify issues to be considered by the Commission, respondent filed a petition for discretionary review of the Judge's decision and a brief on review that raise the following issues:

1. Whether the violation of 29 C.F.R. 1926.451(u)(3) was a result of unforeseeable employee misconduct.

2. Whether respondent's foreman had knowledge of the violation and, if so, whether this knowledge can be imputed to respondent.

3. Whether respondent has established a "greater hazard" defense.

4. Whether the Judge erred in admitting into evidence photographic exhibits taken by the compliance officers prior to their presentation of credentials.

For the reasons stated below, the Judge's decision is affirmed.

Respondent was engaged in the construction of a fabrication shop when two of its employees were observed working without the protection of either a catch platform or safety belts on a pitched roof having a slope of 5 inches in 12 inches. The roof was 35 feet above ground level.

On the morning of the inspection, respondent's vice president had discussed safe work [*3] practices for the jobsite with his foreman. A static line to which safety belts could be attached was extended across the peak of the roof. Although tied off to the line in the morning, employees' safety belts were not attached when two of complainant's authorized representatives who conducted the inspection in this case observed the work being performed on the roof.

Respondent argues that the action of its employees in failing to secure their safety belts was unforeseeable, and that it did all that was possible to assure compliance with the requirements of the standard. The record in this case does not support respondent's contentions. Respondent states in its review brief that its vice president met with the work crew and their foreman to discuss the use of safety belts, and "advised the employees that disciplinary procedures could result from failure to follow these instructions." The testimonial evidence of record, including the citations to the record in respondent's brief, does not support the assertion that the vice president met with the work crew and discussed disciplinary procedures.

In order to defend against the prima facie showing of a violation on the basis of [*4] the unpreventable employee misconduct defense, an employer must prove that the employee conduct was a departure from a uniformly and effectively enforced safety rule. Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD para. 21,718 (No. 11175, 1977); B.G. Maintenance Management, Inc., 77 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4173, 1976). To establish this defense, an employer must show that his employees received adequate training and instructions designed to prevent the violation. Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977); Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977).

As indicated by his conversation with respondent's vice president, the foreman was clearly aware that the employees should have been tied off while working on the roof. There is no evidence, however, indicating that this safety requirement was conveyed by the foreman to the employees, n2 thereby affording them instructions on the proper means of dealing with the hazard. Judge Harris considered the record, [*5] determined that there was no evidence concerning the enforcement of safety instructions, and properly rejected respondent's asserted employee misconduct defense.

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n2 The evidence is conflicting as to whether the foreman himself was tied off while he was on the roof. One of the compliance officers testified that the foreman was one of the two employees he observed working on the roof without fall protection. The foreman did not deny this, but testified only that he was not one of the employees in complainant's photographic exhibits.

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Respondent also argues that its foreman did not know that employees' safety belts were not tied off. The foreman was, however, working on the roof. A supervisor's knowledge of violative conduct is imputable to his employer unless the employer proves that the supervisor was himself adequately supervised and instructed with regard to safety matters. Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), opinion withdrawn and rehearing [*6] granted, No. 76-1060, 4th Cir., October 26, 1977. The employer is generally responsible for any violations of which a supervisory employee has actual or constructive knowledge. Alder Electric Co., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD para. 21,748 (No. 13573, 1977). n3 Constructive knowledge is established when it is shown that violative conditions are detectable through the exercise of reasonable diligence.

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n3 Although the Commission has recognized that there are instances in which a hazardous condition results from the unforeseeable and un-preventable actions of supervisory employees, this does not mean that ultimate responsibility for compliance may be shifted to supervisory employees. Alder Electric Co., Inc., supra.

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The record in this case establishes that the foreman was present on the roof at the time of the violation and may himself have participated in the violative conduct. Therefore, although the foreman denied actual knowledge, the fact that he was on the roof when the violation [*7] occurred is sufficient to establish that, had he exercised reasonable diligence, he would have known of the violation. n4 Constructive knowledge has been shown and it is imputable to respondent.

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n4 The Judge's decision states that the foreman testified that he knew the men were not tied off. The respondent is correct in his assertion that this is erroneous. The foreman stated at the hearing that he was on the roof at the time of the inspection but did not know that the employees were not tied off.

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In Ocean Electric Corp., supra, we held that an employer who would otherwise be found in violation of the Act could defend against the prima facie showing of a violation on the basis that it took all necessary precautions to prevent the occurrence. As noted previously, however, respondent failed to establish the defense in this case.

With respect to the third issue before us on review, Judge Harris rejected respondent's asserted "greater hazard" defense for two reasons. First, he determined that the record was [*8] devoid of evidence supporting the contention that a properly secured safety belt would endanger rather than protect employees. n5 Second, he concluded that if tied-off safety belts were hazardous, a catch platform should have been erected.

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n5 The foreman testified that the employees may have unhooked their belts because they became tripping hazards when the men were carrying roofing sheets.

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We agree with the Judge that the "greater hazard" defense has not been established. Respondent has not proved that the use of safety belts would diminish employee safety. Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976). n6 We also agree with the Judge that the greater hazard defense is inapplicable in this case because the cited standard permits the use of safety belts only as an alternative to the installation of a catch platform. Respondent has not claimed that the use of a catch platform would create a hazardous condition.

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n6 Had respondent proved the hazard of compliance to be greater than noncompliance, it would also be incumbent upon respondent to show the unavailability of alternative means of protection and that a variance application would be inappropriate. Russ Kaller, Inc., supra.

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Lastly, respondent objects to the introduction into evidence of two photographs depicting the working conditions involved in this case. The photographs were taken by the compliance officers from a public roadway prior to their presenting credentials to respondent's representative. Respondent argues that 29 C.F.R. 1903.7(a), which requires the presentation of credentials at the beginning of an inspection, renders evidence gathered before presentation inadmissible.

The cited regulation is a regulatory codification of the statutory requirement set forth in section 8(a) of the Act, 29 U.S.C. 657(a), which grants to the Secretary of Labor the authority to conduct inspections of workplaces "upon presenting appropriate credentials to the owner, operator, or agent [*10] in charge" of the workplace. The Commission has previously considered whether section 8(a) requires the exclusion of evidence obtained prior to the presentation of credentials. In Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977-78 CCH OSHD para. 21,709 (No. 5324, 1977), and Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976) rev'd on other grounds, 560 F.2d 947 (8th Cir., 1977), it was stated that this Commission would not provide a remedy for technical noncompliance with section 8(a) unless the noncompliance violates the Fourth Amendment. In Environmental Utilities Corp., supra, it was held, under similar facts, that respondent could not claim a reasonable expectation of privacy that would be protected by the Fourth Amendment where its worksite was open to public view. Similarly, upon review of the Commission decision in Western Waterproofing Co., Inc., supra, the 8th Circuit stated the following:

[T]he scaffolding was exposed to public view while suspended on the building, and was also readily observable by the tenants in the building. Therefore, Western could have [*11] had no reasonable expectation of privacy concerning the viewing of the scaffolding and, consequently, there was no Fourth Amendment violation. . . .

. . . In short, we hold that where there has been neither a Fourth Amendment violation nor prejudice to the complaining employer as a result of a failure of the compliance officer to present credentials to the employer, suppression of evidence is unjustified under section 8(a). . . .

560 F.2d at 951. In the case before us, respondent's employees were in plain view, readily visible from a public roadway. n7 The evidence was properly admitted.

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n7 Respondent has made no claims of prejudice.

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It is ORDERED that the decision of the Administrative Law Judge be affirmed.