PRESTRESSED SYSTEMS, INC.

OSHRC Docket No. 16147

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye S. Spears, Regional Solicitor, USDOL

Elliot Goldstein, Safety Dir., Prestressed Systems, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge John S. Patton is before the Commission by a general direction for review issued under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661-78 ("the Act"). Judge Patton ruled that Respondent, Prestressed Systems, Inc. ("Prestressed"), had committed a serious violation of 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a), two repeated violations of 29 C.F.R. 1926.500(d)(1), and a repeated violation of 29 C.F.R. 1926.700(a) and 701(a)(1). n2

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n1 29 U.S.C. 661(i). Review was directed by former Commissioner Moran. The direction did not specify the issues on review.

n2 The judge also affirmed a repeated violation of 29 C.F.R. 1926.451(a)(4) and assessed a $235 penalty. In its submissions on review, Respondent does not except to the judge's disposition of this item, the characterization of three items as "repeated" violations, or any of the penalties assessed by the judge. Also, there is no compelling public interest warranting further Commission consideration of these matters. Accordingly, they are not before the Commission on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

[*2]

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I

Prestressed was engaged as a subcontractor erecting concrete joists and slabs at a building under construction in Miami, Florida. An inspection of the worksite was conducted by a compliance officer of the Occupational Safety and Health Administration. During the inspection, the compliance officer observed one of Prestressed's employees standing on a joist, 16-24 inches wide, at the 60-foot level of the building. Although the employee was wearing a safety belt, the belt was not tied off. Prestressed was cited for a serious violation of section 1926.28(a) and section 1926.105(a). n3 In testimony presented at the hearing, all witnesses indicated that it was possible for employees to tie off while working on the joists.

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n3 The standard at 29 C.F.R. 1926.28(a) provides the following:

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.

The standard at 29 C.F.R. 105(a) provides the following:

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.

[*3]

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The repeated serious violation n4 of section 1926.500(d)(1) n5 alleged that there was no perimeter guarding at the 40-foot level of the building. The compliance officer testified that he twice observed Prestressed's foreman at the edge of the building. Although the foreman was wearing a safety belt, the belt was not tied off.

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n4 Although the citation classified this violation as repeated, in the complaint the Secretary also alleged that the violation was serious.

n5 The standard at 29 C.F.R. 1926.500(d)(1) in pertinent part provides:

(d) Guarding of open-sided floors, platforms and runways.

(1) 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,. . .

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The repeated other than serious violation n6 of section 1926.500(d)(1) was based on the absence of perimeter guarding [*4] at the 17-foot level of the building. Prestressed's employees were engaged in dismantling a perimeter scaffold at that level. The normal procedure for dismantling scaffolds, which was followed on the day of the inspection, involved pulling the scaffolds 4-5 feet into the building away from the perimeter of the floor. Although it is unclear whether the employees were wearing safety belts, it is undisputed that none of the employees were tied off. While the scaffold was being dismantled, one of Prestressed's employees fell to his death when he backed over the unguarded edge of the floor.

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n6 The citation classified the violation as repeated. In the complaint the Secretary also alleged that the violation was other than serious.

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Evidence indicates that the general contractor was contractually responsible for the installation of guardrails. Respondent's construction vice-president testified that after scaffolds were pulled away from the floor perimeter, the general contractor would install guardrails. He stated that [*5] the installation of the guardrails might occur from 5 minutes to "a few hours" after the scaffolds were pulled inside the building. No evidence was adduced indicating whether Prestressed requested that the general contractor install guardrails more quickly or whether Prestressed could have erected the guardrails itself.

Prestressed had a safety rule requiring that employees wear and tie off safety belts when guardrails were not in place. Prestressed's safety director testified that enforcement of company safety rules was accomplished through disciplinary measures such as warnings, reprimands and temporary lay-offs. He also indicated that two employees were discharged for violating Prestressed's safety rules. One discharge was based on an employee's repeated violation of the safety belt rule. However, one of Prestressed's employees stated that he had failed to tie off his safety belt on several occasions and had seen other employees fail to tie off more than once. In addition, the compliance officer noted at least four occasions during the inspection when employees were not tied off.

Judge Patton affirmed the violation of section 1926.28(a) and section 1926.105(a), found it [*6] to be serious, and assessed a $500 penalty. He stated that despite the disciplinary actions taken by Prestressed, the requirement that safety belts be tied off was not adequately enforced. He based this finding on the evidence that violations of Prestressed's safety rules requiring employees to tie off were "not infrequent," as indicated by the numerous instances during the inspection when employees were not tied off.

The judge affirmed a violation of section 1926.500(d)(1) because of Respondent's failure to install guardrails at the 40-foot level of the building. He assessed a penalty of $800. The judge rejected Prestressed's defense that its employees were required to wear safety belts. He concluded that the cited standard requires the installation of guardrails regardless of whether employees are wearing safety belts. Nonetheless, the judge noted that Prestressed's safety belt rule was ineffective.

Judge Patton also affirmed a violation of section 1926.500(d)(1) because of the absence of guardrails on the 17-foot level. He assessed a penalty of $1085. The judge rejected Prestressed's contention that because the general contractor was contractually responsible for the [*7] installation of guardrails, Respondent had no responsibility to protect its employees. The judge noted that there was no indication that Prestressed had complained to the general contractor about the lack of guardrails or that Prestressed could not have erected guardrails itself. He concluded that Respondent had responsibility for the safety of its employees despite the contract with the general contractor. In addition, Judge Patton found that the evidence failed to substantiate the claim that it was impossible to dismantle the scaffold with the guardrails in place.

In its submissions on review, Prestressed argues that section 1926.28(a) requires the wearing of personal protective equipment, but does not make the employer responsible for the use of the equipment. Prestressed asserts that the judge erred in finding that its safety belt policy was not effectively enforced. Respondent also contends that the judge erred in finding violations of section 1926.500(d)(1). Prestressed claims that the use of safety belts rather than guardrails provided its employees with "equivalent protection," a concept that Respondent asserts was endorsed by the Commission in Anning-Johnson Co., [*8] 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976).

Prestressed's assertion that section 1926.28(a) requires only wearing and not tying off safety belts is erroneous. In Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD P20,441 (No. 3395, 1976), the Commission stated that section 1926.28(a) requires the use of safety belts and rejected the contention that merely providing employees with safety belts constitutes compliance with the standard. Accord, C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978). These cases are dispositive of this issue, and Prestressed's contention is rejected.

Prestressed's contention that its safety belt rule was effectively enforced raises the defense of unpreventable employee misconduct. Judge Patton found that a number of proven instances of noncompliance with the safety belt rule occurred during the inspection. In addition, one of Prestressed's employees testified that he did not always tie off and had seen other employees wearing safety belts without tying off. Clearly, Prestressed did not effectively enforce its safety belt rule. [*9] Therefore, the "unpreventability" defense has not been sustained. See Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978); Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD P21,718 (No. 11175, 1977). Accordingly, the section 1926.28(a) item is affirmed. n7

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n7 Prestressed also contends that it did not violate 1926.105(a) since, in its opinion, that standard only applies where the use of safety belts is impractical. As noted in Diamond Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1083, 1980 CCH OSHD P24,274 (No. 76-3653, 1980), it is proper for the Secretary to cite 1926.28(a) and 1926.105(a) in the alternative if the Secretary concludes that either safety belts or safety nets are appropriate means of abatement applicable to the situation. Since in this case the feasibility of using safety belts is not disputed and a violation of 1926.28(a) has been established, it is not necessary to address Respondent's argument concerning the applicability of 1926.105(a) or to determine whether a violation in the alternative of 1926.105(a) has been established. Therefore, the citation and penalty assessed by the judge are affirmed with respect to the 1926.28(a) charge only.

[*10]

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Judge Patton was also correct in concluding that the Secretary established two violations of section 1926.500(d)(1). In Western Waterproofing Co., 77 OSAHRC 95/A2, 5 BNA OSHC 1496, 1977-78 CCH OSHD P21,869 (No. 9739, 1977), the Commission held that on a multi-employer worksite safety belts could be used as an alternative to guardrails if an employer can demonstrate that it did not create nor control the hazardous condition such that it could abate the violation in the manner prescribed by the perimeter guarding standard. Although the general contractor was contractually responsible for the installation of guardrails on this worksite, no evidence was adduced indicating that Prestressed could not have erected guardrails itself. Therefore, Prestressed has failed to demonstrate a lack of control that precluded its abating the violative condition. Howard Electric Co., 78 OSAHRC 37/B9, 6 BNA OSHC 1518, 1978 CCH OSHD P22,672 (No. 15339, 1978).

Even if Prestressed had shown that it could not correct the condition, it would be required by Western Waterproofing Co., supra, and Anning-Johnson [*11] Co., supra, to take realistic protective measures as alternatives to literal compliance with the cited standard. In this case, safety belts were a realistic alternative to guardrails, but Prestressed failed to enforce their consistent use by all employees. Accordingly, the items alleging violations of section 1926.500(d)(1) are affirmed.

II

The Secretary also alleged a repeated other than serious violation of the ANSI standard at A10.9-1970 Article 6.2.1, as adopted by sections 1926.700(a) and 701(a)(1). n8 During the inspection, a concrete joist supported by hangers made of reinforced steel fell three feet, injuring two employees. The hangers had rested on beams at either side of the building. The joist and hangers were manufactured by Prestressed and were set in place at the worksite. One vertical and two diagonal bars extended from each hanger into the concrete joist.

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n8 The standards provide the following:

1926.700 General Provisions.

(a) General. All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work.

1926.701 Forms and Shoring.

(a) General Provisions. (1) Formwork and shoring shall be designed, erected, supported, braced and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during placement of concrete

ANSI A10.9-1970 Article 6.2.1: Form Design: Any form, regardless of size, shall be planned in every particular and designed and constructed with an adequate factor of safety. In addition to computable load, additional form pressures may result from impact during concrete placement, sudden lowering of temperatures retarding the set and increasing the liquid head or static pressure, vibrations of the form or concrete, uneven stressing resulting from failure or weakening of form members, or impact from concrete buckets or placing equipment. As a result, an adequate factor of safety is required to offset these unpredictable conditions.

[*12]

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Prestressed's construction vice-president testified that the hangers were capable of supporting 25,000 pounds. He stated that he had inspected the joist after the accident and discovered that there was no concrete around the vertical bar. Based on this inspection, he expressed the opinion that a void in the concrete around the vertical bar resulted in the hanger failing to support the joist. He also testified that hangers had been used as joist supports "for years" without incident.

The compliance officer testified that the hanger had "apparently" failed, causing the joist to fall. It was his opinion that the void in the concrete also contributed to the accident. He stated that during his inspection, Prestressed's vice-president told him that the void in the concrete "should have been caught in [Prestressed's] inspection" and that the vertical bar was too short. n9

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n9 Prestressed's construction vice-president testified that he did not recall telling the compliance officer that the vertical bar was too short. He was not questioned concerning the compliance officer's statement that he told the compliance officer that the void "should have been caught in inspection."

[*13]

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Prestressed's superintendent testified that he had not previously seen a joist fall. He stated that a void in the concrete would ordinarily be easy to see, but that it was possible that the exterior of the joist could have been coated with concrete, making it difficult to determine whether a void existed in the concrete.

Judge Patton found Prestressed in violation of the standard and assessed a $285 penalty. He stated that the testimony of the compliance officer and construction vice-president established that the "problem" was that the vertical bar was not properly set in concrete. He also stated that the vertical bar was "apparently" not manufactured by Prestressed to support the loads placed upon it.

In its brief on review, Prestressed contends that the judge's affirmance of the citation is based on the doctrine of res ipsa loquitor, which Respondent asserts is inapplicable to cases before the Commission. Prestressed maintains that there is no direct evidence disclosing that the void in the concrete weakened the hanger or the joist. Prestressed also asserts, as it did below, that there was [*14] no evidence that the void was sufficiently large to cause the joist to fall. n10 Judge Patton rejected this factual contention, relying upon testimony by the compliance officer and Prestressed's vice-president establishing that the fall was caused by the void in the concrete. We adopt the judge's disposition of that contention. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n10 Prestressed states that the best evidence of the cause of the fall was an engineering report prepared for it after the accident. Prestressed urges the Commission to vacate the item because the Secretary did not seek discovery of the report and did not produce it at the hearing. Respondent's argument is without merit. Prestressed had control over the document and could have produced it at the hearing. No negative inference can be drawn against the Secretary under these circumstances.

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We further find that Prestressed, who was charged with the failure to erect, support, brace, and maintain [*15] the joist so that the joist would safely support all vertical and lateral loads, violated the terms of the cited standards. The standards at section 1926.700(a) and 1926.701(a) cover the full range of concrete construction procedures, including formwork design, construction, placement, inspection, and maintenance. The standards require that concrete formwork be able to safely support all vertical and lateral loads. Prestressed both constructed the joist and set it in place at the worksite. Prestressed was in control of the joist for the period during which the concrete construction procedures required by the standards were applicable. The failure of the joist, which we have found to have been caused by the void in the concrete, reveals that the performance required by the standards was not met in this case. No explanation or evidence has been offered on the record as to the cause of the void. In light of Prestressed's responsibility during the manufacture and placement of the joist and in the absence of any evidence that would indicate that the cause of the failure was the result of factors outside of Prestressed's control, we conclude that a preponderance of the evidence establishes [*16] that the failure of the joist was the result of Prestressed's failure to comply with the terms of the cited standards.

Two employees of Prestressed were injured as a result of the failure of the joist. Therefore, there can be no doubt that Prestressed's employees were exposed to the cited hazard. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).

Having established that Prestressed failed to comply with the cited standards and that Prestressed's employees were exposed to the cited hazard, the issue remains as to whether knowledge of the hazard by Prestressed has been shown. This issue of employer knowledge, which was not discussed by Judge Patton, is before us on review as a result of Prestressed's reference to res ipsa loquitor. n11

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n11 In my experience, which goes back to the Commission's earliest days, it is rare that a case on review has "employer knowledge" as an issue to be resolved. In those cases where an employer's actual knowledge of the violation cannot be found, constructive knowledge, that is, what an employer should have known with the exercise of reasonable diligence, is almost always clearly demonstrated on the record. As the discussion infra explains, I find that the employer in this case had constructive knowledge of the violation. Yet, I seriously doubt that Respondent's knowledge of the violation is at issue at all in this case. Because my colleagues believe that the issue of Respondent's knowledge is before us, however, and because they differ in their respective views of the "knowledge" issue, I am constrained to set forth my view in order to avoid a possible deadlock.

[*17]

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Under Commission precedent, neither a serious nor an other than serious violation can be affirmed unless the Secretary establishes as part of his prima facie case that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. Scheel Construction, Inc., 76 OSAHRC 38/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD P21,263 (No. 8687, 1976). The Commission has found the burden of proving knowledge to be on the Secretary in furtherance of the Congressional intent that employers only be held responsible for hazards they can reasonably be expected to prevent. Green Construction Co. and Massman Construction Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD P21,235 (No. 5356, 1976) ("Green and Massman"); see also Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1965); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

I disagreed with the majority's treatment of the knowledge issue in Green and Massman and in D.R. Johnson Lumber Co., 75 OSAHRC 54/A2, 3 BNA OSHC 1124, [*18] 1974-75 CCH OSHD P19,695 (No. 3179, 1975). I concluded in those cases that for both serious and other than serious violations the burden of proving lack of knowledge of the cited violation should be placed on the employer. n12 I have carefully reexamined this issue in light of the statutory scheme, the Act's legislative history, and subsequent experience, and it is my view that the Commission precedent placing the burden of proving employer knowledge on the Secretary is appropriate.

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n12 In Williams Enterprises, Inc., 77 OSAHRC 165/C7, 5 BNA OSHC 1785, 1977-78 CCH OSHD P22,113 (No. 12100, 1977) and in Welsh Farms Ice Cream, Inc., 77 OSAHRC 162/F8, 5 BNA 1755, 1977-78 CCH OSHD P20,800 (No. 15906, 1977), cases that were decided by only two members of the Commission, I agreed in the absence of Commission consensus to follow Commission precedent placing the burden of proving employer knowledge on the Secretary.

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In my earlier conclusion that the burden of proving lack of knowledge should be placed on the employer, [*19] I relied on the premise that a party should not be assigned the burden of establishing facts peculiarly within the possession of the opposing party. Subsequent experience, however, has shown that employer knowledge can usually be established by the Secretary without the need of extensive discovery of facts peculiarly within the employer's possession. In a very few cases, such as those involving hazards that are latent or only detectable by testing, hazards that are of very short duration, or hazards outside the employer's direct control, it has been necessary for the Secretary to obtain information beyond that which the compliance officer observes during his inspection. However, when such additional evidence is needed, it can be established through interviews conducted by the compliance officer at the worksite, expert testimony concerning industrial safety practices, and examination or cross-examination of the employer, his representatives, or his employees. See, e.g., Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1978-79 CCH OSHD P22,555 (No. 10757, 1978); The Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2015, 1977-78 CCH OSHD P22,266 (No. [*20] 12879, 1977). Additionally, our rules of procedure permit the Secretary to gain through discovery information beyond that gathered during the inspection. See KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD P22,350 (No. 13490, 1977), appeal dismissed, No. 79-3127 (6th Cir. July 3, 1979). Therefore, I concluded that placing the burden on the Secretary of proving knowledge for both serious and other than serious violations does not conflict with the Act's remedial purpose of preventing occupational safety and health injuries. n13

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n13 It is my belief that the burden of proof should be the same for other than serious as for serious violations. Commission precedent placing the burden of proving knowledge on the Secretary for both serious and other than serious violations has been in effect for some time. Further, at least three circuits require the Secretary to establish employer knowledge as an element of a serious violation. See Brennan v. OSHRC (Alsea Lumber Co.), supra; Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979); Mountain States Telephone and Telegraph Co. v. OSHRC, 623, F.2d 155 (10th Cir., 1980). Finally, as discussed above, proof of employer knowledge has not proven difficult for the Secretary to establish in most cases.

[*21]

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I now turn to whether Prestressed knew or could have known of the defect in the joist support. Prestressed's superintendent testified that the void in the concrete that caused the joist to fall may have been coated with concrete. Since the void may not have been visible, an inference of employer knowledge cannot be drawn from the mere presence of the violative condition at the worksite. However, an employer's duty to exercise reasonable diligence requires it to inspect and perform tests in order to discover safety-related defects in materials and equipment. Green and Massman, supra; Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976). Indeed, the standards under which Prestressed was cited require such inspection. Therefore, constructive knowledge of the violation can be found if it can be shown that Prestressed failed to exercise reasonable diligence in its inspection procedures concerning the joist.

The only evidence of Prestressed's inspection procedures for joists is the statement of Prestressed's vice-president to the compliance [*22] officer that the void in the concrete "should have been caught in inspection." I find this statement to be an admission by a party opponent. Fed. R. Evid. 801(d)(2); see Paramount Plumbing & Heating Co., 77 OSAHRC 79/D14, 5 BNA OSHC 1459, 1977-78 CCH OSHD P21,820 (No. 12652, 1977), appel withdrawn, No. 77-1433 (2d Cir. November 15, 1977); Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD P21,120 (No. 5873, 1976), aff'd, 578 F.2d 1021 (5th Cir. 1978). While additional testimony explaining this remark would have been helpful in determining whether Prestressed had constructive knowledge of the violative condition, neither of the parties chose to elicit such testimony. Although it is possible that the failure to discover the defect during inspection was the result of factors beyond Respondent's control, Respondent has not attempted to demonstrate the affirmative defense of unpreventability concerning the inspection of the joist or aver that the particular joist was inspected. Therefore, in evaluating the vice-president's testimony within the context of the record as a whole, I interpret the statement to be an admission that Respondent's [*23] failure to discover the void in the joist was the result either of a failure to inspect the joist or of a failure to perform an adequate inspection on the joist. Therefore, I conclude that a preponderance of the evidence establishes that if Prestressed ahd exercised reasonable diligence, it could have known of the presence of the violative condition. As discussed in note 2 supra, the amount of the penalty and the characterization of the violation as repeated are not before us on review. Accordingly, the citation alleging a repeated violation of 29 C.F.R. 1926.700(a) and 701(a)(1) and the $285 penalty assessed by the judge are affirmed.

III

The citations alleging a serious violation of 29 C.F.R. 1926.28(a), two repeated violations of 29 C.F.R. 1926.500(d)(1), and a repeated violation of 29 C.F.R. 1926.700(a) and 701(a)(1) and the penalty amounts assessed by the judge totalling $2,905 are affirmed.

IT IS SO ORDERED.

CONCURBY: BARNAKO; Cottine

CONCUR:

BARNAKO, Acting Chairman, Concurring:

I concur in Commissioner Cleary's disposition of the citations for violation of 29 C.F.R. 1926.28(a) and 1926.500(d)(1) for the reasons stated by him. I also agree with him that the Secretary [*24] has the burden of proving that an employer either knew or could have known, with reasonable diligence, of a condition alleged to constitute a non-serious violation and that the Secretary carried his burden with respect to the alleged violation of 29 C.F.R. 1926.700(a) and 1926.701(a)(1).

In Green Construction Co. & Massman Construction Co., 78 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD P21,235 (No. 5356, 1976), I concluded that knowledge is an element of all violations and that the Secretary has the burden to prove knowledge for non-serious as well as serious violations. See Scheel Construction, Inc., 78 OSAHRC 138/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD P21,263 (No. 8687, 1976); Kent Nowlin Construction Co., 80 OSAHRC 39/A10, 8 BNA OSHC 1286, 1290 n.6, 1980 CCH OSHD P24,458 at 29,866 n.6 (Nos. 76-191 & 76-192, 1980), appeal filed, No. 79-1112 (10th Cir. Feb. 20, 1979). I continue to adhere to those views.

The Secretary bears the burden of establishing all essential elements of a violation, n1 and this is true even if certain factors are not mentioned in the Act or the cited standard. n2 Clearly knowledge is an essential element of any violation [*25] since knowledge is fundamental to an employer's culpability under the Act. Regardless of whether a violation is non-serious or serious in the sense that it is likely to cause death or serious physical harm, an employer cannot be expected to prevent its occurrence unless it knew or could have known of the violative conditions. As the Court of Appeals for the Ninth Circuit stated,

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.

Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139, 1145 (9th Cir. 1975). Since knowledge is an essential element of a violation, there is no reason to depart from our normal rule that the burden of proof rests with the Secretary.

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n1 29 C.F.R. 2200.73(a) states:

In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.

n2 For example, although the Act is silent on the point, the Commission requires the Secretary to prove that employees have access to the hazard created by a violative condition. Stahr & Gregory Roofing Co., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1979 CCH OSHD P23,261 (No. 76-88, 1979). Similarly, in order to prove a violation of the Act's general duty cluase, 29 U.S.C. 654(a)(1), the Commission requires the Secretary to prove, in addition to the statutory elements of such a violation, the existence of feasible steps the employer could have taken to avoid the citation. Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979).

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COTTINE, Commissioner, concurring:

I concur in the rationale and disposition of the alleged violations of 29 C.F.R. 1926.28(a) and 1926.500(d)(1). 1926.700(a) and 1926.701(a)(1).

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* In General Electric, I concluded that the Secretary has the burden of proving employer knowledge and that a monetary penalty should not be assessed when the Secretary fails to sustain that burden. However, I also stated that an abatement order requiring employees to be protected from the hazard discovered during the Secretary's inspection should be issued regardless of the employer's knowledge of the violation before the inspection.

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