GILLES & COTTING, INC.

OSHRC Docket No. 504

Occupational Safety and Health Review Commission

February 20, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Robert C. Adams, for the employer

James S. Merkle, Business Agent, Carpenters District Council, for the employees

Cecil G. Tucker, Business Agent, Local #74, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case is before the Commission pursuant to an order of the U.S. Court of Appeals for the Fourth Circuit, vacating and remanding our decision in Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973). Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir., 1974). On remand, we are directed to determine what rule of exposure should be applied to Respondent (Gilles), a general contractor in the construction industry.

The relevant facts are essentially undisputed. At the time of the occurrence which gave rise to these proceedings, Respondent was engaged as the general contractor for the construction of an addition to a building at the Goddard Space Flight Center in Maryland. Respondent subcontracted the installation of glass on the building to Southern Plate Glass Company (Southern).

In order to install the glass, Southern's employees rigged a scaffolding [*2] assembly consisting of two tubular scaffolding units each with an I-beam inserted through it. The I-beam were tied to the tubular scaffolding units with rope and projected over the edge of the roof of the building to support a suspended staging or swinging platform. Each of the scaffolding units was counterbalanced with 350-400 pounds of elevator weights and cement blocks which were set unsecured on a plywood platform, which in turn rested against a 2 X 4 placed at the back of the tubular unit. When the assembly was first used, the I-beams were also tied back to eye bolts located in the roof. After each vertical drop of the platform was completed, it was necessary for Southern's employees to move the assembly to a new location on the roof. After a number of moves, the I-beam tiebacks to the roof were removed. While the assembly was being used in this manner one of the tubular scaffold units tipped over the roof parapet causing two of Southern's employees to fall to their deaths. The remains of the scaffolding unit, the counterweights, and 374 pounds of glass were scattered over an area 50 feet in diameter.

Both Respondent and Southern were cited for violations of the standards [*3] relating to scaffolding. Southern did not contest the citation or proposed penalty. While Gilles did contest the citation, it admitted that Southern's use of the scaffolding constituted a serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereinafter "the Act"). n1 Thus, the sole question presented was whether Gilles had any responsibility under the Act for the violative condition.

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n1 Respondent also stipulated that the proposed penalty was appropriate.

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The Administrative Law Judge determined that Gilles was responsible for the violation on the alternative grounds (1) that its own employees had access to the hazard and could have been in a position to suffer injury from the collapse, and (2) that it was responsible for the exposure of Southern's employees.

On review, a divided Commission reversed the Judge's decision. OSHRC held (1) that Gilles was not responsible for any employees other than its own, and (2) that no employee of Gilles was shown to be affected by, i.e., [*4] actually exposed, to any unsafe condition existing with respect to the scaffold. The Fourth Circuit accepted the Commission's determination that, on these facts, a general contractor should not be held responsible for the exposure of its subcontractors' employees. n2

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n2 504 F.2d at 1262. On remand, Complainant asks that we reconsider our holding on this issue. In view of our disposition herein it is unnecessary to reconsider this issue in this case. In this regard it is enough to note that the issue is presented in other cases on review and consideration of the issue in them may be appropriate in view of Brennan v. O.S.H.R.C. (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975), and Anning Johnson Co., et. al. v. O.S.H.R.C., 516 F.2d 1081, n. 21 (7th Cir. 1975). In any event, reconsideration in this case is inappropriate since the Fourth Circuit's determination is the law of the case.

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n3 The Second Circuit determined that access alone is sufficient. Brennan v. O.S.H.R.C. (Underhill Construction Corp.), infra, n. 2.

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As we understand it, the question on remand is whether in order to support a citation the evidentiary record must show that employees of a cited contractor were actually exposed to the hazard presented by a violative condition or whether it is enough for the record to show that the employees had access to the hazard.

On remand, Complainant argues that proof of actual exposure imposes a heavy evidentiary burden on him. He points out, as did the Court, (504 F.2d at 1263) that actual exposure would require direct observation [*6] by a compliance officer of employee presence in a zone of danger or it would require worker testimony to that effect. He stresses the difficulties involved in developing evidentiary facts along these lines. Accordingly, he urges that we adopt a practical rule of access based on reasonable predictability. He states that his compliance officers will not be unduly burdened in developing evidence if access is shown by the following:

1. the violative condition,

2. the normal duties of employees in the course of their work activities,

3. the employees' personal comform activities, and

4. the routes for employee ingress and egress to and from their assigned workplaces.

On the other hand Respondent argues for an actual exposure rule saying, among other things, that the rule advocated by Complainant is a rule for strict liability, is too speculative, and is contrary to Commission precedents. Respondent cites, among other cases, our decisions in Arizona Public Service Co., 4 OSAHRC, 1229, 1 OSHC, 368, 2 OSHC para. 16,800 (1973); and J.E. Roupp & Company, Inc., 7 OSAHRC 919, 1 OSHC 1680, OSHD para. 17,660 (1974). Nevertheless, states Respondent, if we adopt a rule of access [*7] we should not find a violation unless employees of an employer in Respondent's circumstances had access to the zone(s) of danger and the employer had notice or should have had notice of the existence of the violation.

We have given careful consideration to the question presented. On balance we conclude that a rule of access based on reasonable predicability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure.

As we view it, the zone or zones of danger will be determined by the hazards presented by the violative conditions. In this case, for example, three zones of danger were present. They comprise the swinging platform on which Southern's employees were working, the impact area under the platform including the area in which material, tools, or equipment were or could be strewn as a result of an occurrence, and the rooftop area affected by the platform's supporting structure.

In this case the Court determined and Gilles admits that its employees had access to the zones of danger. In other cases we would expect Complainant, absent an admission, to establish access by evidentiary facts. We would expect the proofs to show that employees [*8] either while in the course of their assigned working duties, their personal comfort activities while on the job, or their nornal means of ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger.

Lest there be any confusion we would emphasize that the touchstone of our decision is stated by the words "will be . . . in a zone of danger." n4 We cannot, by this decision, foresee all the possibilities; the question is one of fact to be determined on a case by case basis. However, by way of guidence we would say, as Judge Burroughs did in Allied Electric Company: n5

If defective equipment is available for use by the employee and a standard is violated, then a citation should issue. Under such circumstances, the employee is exposed to a potential hazard even if he is not using the equipment at the time of the inspection. The equipment is accessible to him and could be used.

Where [an] employer asserts his intention not to use . . . defective equipment until repaired and his contention is manifested in overt acts which have denied accessibility to the equipment by the employees, then the employer should not be held in violation of the particular safety [*9] standard which might apply to that equipment. If the equipment has been effectively removed from accessibility by the employees, the employer has taken positive means to assure safe and healthful working conditions for his employees. 1 OSAHRC at 451, 452.

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n4 Obviously, if employees "are" in or "have been" in a zone of danger then actual exposure is established.

n5 1 OSAHRC 440 (1972).

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Judge Burroughs' statement was made with reference to an ungrounded saw that was available for use in an electrical contractor's tool box at a construction site. His statement, however has equal applicability to non-equipment hazards such as falling hazards.

In reaching our decision we have considered Gillee' arguments. What has been said disposes of the argument that a rule of access imposes strict liability. As for the speculative argument we believe the parameters of the rule provide a complete answer.

We turn now to the question of whether Gilles violated the Act. As was said above Gilles admits that its employees had access [*10] to zones of danger. The question that remains is whether Gilles knew or with reasonable diligence could have known of the presence of the violation. n6 such that it had a duty to take action to prevent going into zones of danger or to warn its employees not to enter the zones of danger. We conclude that Gilles could have known of the violation, and we affirm the citation.

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n6 29 USC 666(j).

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In this regard, Respondent's foreman testified that he had the responsibility for general safety surveillance at the jobsite. Furthermore, Respondent's Accident Prevention Plan states that all scaffolds were to be in accord with safety standards and that all equipment owned by subcontractors was to be inspected by Respondent's job superintendent upon arrival at the jobsite, and periodically thereafter. In addition, the Accident Prevention Plan recoguizes that unsafe scaffolds are one of the job hazards resulting in employee injury.

Respondent's superintendent, Norman Lowe, testified that he reviewed the safety standards with [*11] Southern's foreman and inspected the scaffold when it first arrived on the jobsite. Lowe also testified that he told Southern's foreman that the scaffolding must be tied down. In addition, Lowe stated that his work required him to be on the roof three times a day and that he made it a point to check the entire roof area when he was there. The record also establishes that NASA's construction inspector tried to inspect the roof area once a day. He testified that the scaffold was safe only as long as it was tied to the roof.

During the period that the scaffold was in use, Lowe was succeeded as Respondent's superintendent, by James Divan. Divan testified that he saw the scaffolding several days before the collapse, at which time it was tied down to the roof. However Divan did not reinspect the scaffolding from that time until it collapsed, despite the fact that he had never seen a scaffold constructed in that manner during his 25 years in the construction industry.

We find that the actions of Respondent's Superintendent, Lowe, and the NASA construction inspector, indicate that the exercise of reasonable diligence in this case would include daily inspection of the scaffolds. Therefore, [*12] we find that Respondent's failure to reinspect the scaffold during the several day period prior to its collapse constitutes a failure to exercise reasonable diligence by which the hazardous condition might have been discovered. For these reasons, we will affirm the citation for serious violation of the Act.

The parties have stipulated to the appropriateness of the $550 proposed penalty. Inasmuch as the penalty is not repugnant to the purposes of the Act and no employee or employee representative has objected to it, we will assess the penalty as proposed. Thorleif Larsen & Son, Inc., 12 OSAHRC 313 (1974).

Accordingly, it is ORDERED that the citation be affirmed and that Respondent be assessed a penalty of $550.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur in the lead opinion's disposition and rejection of a rule of law that would require complainant to prove actual employee exposure to a hazard before abatement can be required.

Prevention of occupational injuries and illnesses is the goal of the Act. n7 The House Committee on Education and Labor characterized the Act's purpose as follows:

Death and disability prevention is the primary intent of this bill. . . . [*13] If we are to reduce disability and fatalities, it is essential that we guarantee adequate warning of possible hazards (emphasis added).

House Comm. on Education and Labor, H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 23 (1970).

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n7 Section 2(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"].

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Similarly, several courts of appeals have stressed the concept of accident prevention underlying the Act. See, e.g., Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974); REA Express, Inc. v. Brennan and O.S.H.R.C., 495 F.2d 822, 826 (2d Cir. 1974); Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974). Indeed, one court noted that the purpose of the Act is "to head off industrial accidents before they happen." Brennan v. O.S.H.R.C. and Kesler & Sons Constr. Co., 513 F.2d 553, 558 (10th Cir. 1975).

In remanding this case to the Commission the Fourth Circuit characterized [*14] the issue on remand as "crucial to the enforcement of the Act. . . ." n8 I agree. Moreover, I note that an effective enforcement program was expressly contemplated by Congress as one method of achieving the Act's ultimate goal. n9 Consequently, any decision regarding the enforcement of section 5(a) of the Act must be made in view of the Act's goal of prevention.

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n8 Brennan v. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1263 (4th Cir. 1974).

n9 Section 2(b)(10) of the Act.

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It is antithetical to the Act's goal of accident prevention to require the Secretary of Labor to establish through direct or circumstantial evidence that employees were actually exposed to noncomplying working conditions. Any such requirement would seriously undermine the Secretary's ability to prevent accidents inasmuch as observation of actual employee exposure to hazardous conditions would, in many cases, be difficult if not impossible. Similar difficulties would also be encountered if compliance officers are required to gather [*15] sufficient circumstantial evidence to show that employees were actually exposed to each and every noncomplying condition encountered in the course of an inspection.

In addition to the practical difficulties that adoption of an actual exposure requirement would generate relative to the Secretary's enforcement mission, the most compelling reason for rejecting this requirement is its tacit endorsement of a brinksmanship approach to employee safety and health. Actual exposure to a hazard simply means that employees must be shown to have been exposed to the hazards created by a violative working condition. In other words, employees must risk injury and possibly death before the Secretary can require abatement of hazardous conditions. I conclude that Congress did not intend to endorse such game-playing with the health and safety of employees in order to achieve safe and healthful working conditions.

It is clear that Congress expected abatement of possible safety and health hazards before employees risked injury or death. Accidents on the job are not prevented by requiring the employees whom the Act seeks to protect to place themselves in a precarious situation before the hazard [*16] can be ordered abated by the Secretary. A sound approach is to allow the Secretary to require abatement of potential dangers to employees upon a showing that a condition exists at a worksite in violation of a safety standard and that the hazard posed by the violation is accessible to employees, cf. Brennan v. O.S.H.R.C. and Underhill Constr. Corp., supra, or that the hazard otherwise may pose dangers to employees that may be described in functional rather than spatial terms. There is nothing talismanic about the phrase "access to exposure" or the term "zone of danger" as used by the lead opinion. The test that is really applied may be more precisely stated in terms of the risks to employees that may be reasonably anticipated when a standard is breached. n9a An employer is, of course, free to show the absence of any risk to his employees. In doing so, however, the employer cannot challenge the wisdom of a safety standard, n10 but must deal with the risks at which the standard is directed.

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n9a I do not examine here the evidentiary burdens of the parties. This is not a close case. See my earlier dissenting opinion describing the evidence of access to the hazards.

n10 See The Budd Co., 7 OSAHRC 160, 1 BNA OSHC 1548, 1973-74 CCH OSHD para. 17,387 (Nos. 199 & 215, March 8, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).

[*17]

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Respondent, as the lead opinion notes, has admitted that its employees had access to the hazards attendant to the violative scaffolding assembly. n11 Although it is undisputed that respondent did not erect the cited scaffolding, it is clear that respondent did, however, have responsibility for and control over safety precautions taken at the jobsite. Specifically, with regard to the hazards in this case, respondent periodically inspected scaffolds to determine whether they complied with applicable safety standards. This measure of control over the noncomplying conditions coupled with the fact that the hazards generated by the violative scaffolding assembly were accessible to respondent's employees, supports the finding that respondent violated section 5(a)(2) of the Act. n12

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n11 Respondent stipulated that the scaffolding assembly did not comply with the safety standards at 29 CFR s1926.451(a)(2), (a)(7) and (g)(2). The hazards presented by the noncomplying scaffolding are the improperly secured scaffold itself, the area beneath it, and the area near the rooftop assemblies.

n12 In view of the fact that respondent exercised control over the scaffold and its employees had access to the dangers attendant to the violations, it is unnecessary to decide at this time whether respondent, as a general contractor at a multi-employer jobsite, should be held jointly responsible with a subcontractor for the safety of the latter's employees.

[*18]

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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Southern Plate Glass Company, the employer who was primarily responsible for the safety violation in this case and whose employees were exposed to the hazardous conditions resulting from that violation, has admitted legal liability therefor. Southern has been found in violation of the Act for the very same offense charged against this respondent. Presumably, although this record does not so state, Southern has complied with the order resulting from the enforcement action initiated against it, by paying the fine and abating the hazardous condition. However, this obviously is not sufficient for the majority of this Commission.

My colleagues first extend employer liability to those situations where an employer's employees "will be . . . in a zone of danger," and then, like a fortune-teller stroking her crystal ball, find that this respondent is also liable. In their desire to extract another pound of flesh, they completely disregard the Circuit Court's well-reasoned decision in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1089 (7th Cir. 1975) which states: [*19]

"We fail to see how requiring several different employers to [correct the same condition] fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary's position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive."

Furthermore, they have totally discarded sound Commission precedent of long-standing in adopting a rule which imposes strict liability on all employers and makes them insurers of employee safety, something not contemplated by the Act. E.g. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1144-1145 (9th Cir. 1975); National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1266 n. 36 (D.C. Cir. 1973).

The decision in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1257 (4th Cir. 1974), which remanded this case to the Commission [*20] stated that:

"the Commission's decision was an unexplained rejection of the administrative judge's decision [based on the 'access' principle] and an unexplained departure from the rule of decision followed in other OSHA cases that access alone is sufficient to make out a violation." n13

However, I respectfully submit that our Gilles & Cotting decision was not a departure from prior precedent but, to the contrary was consistent therewith.

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n13 The reference to other cases pertains to Secretary v. Christiansen, Docket No. 3108, and Secretary v. Allied Electric Co., 1 OSAHRC 440 (1972). The Christiansen case is presently under review by the Commission on the issue of whether it was necessary for the complainant to establish usage of defective electrical tools by the respondent's employees. In Allied Electric, the Judge found that there was no violation because the defective saw was not accessible to the respondent's employees. Since the result would not have been changed by application of the actual exposure rule, the Commission did not direct review of that case. Less than a month after deciding Allied Electric, the same Judge found no violation of two standards pertaining to stairways because the evidence was "insufficient to establish that respondent's employees used the stairways at a time when they failed to conform to the requirements of" those standards. That decision also became the final order of this Commission without review. Secretary v. Ellison Electric, 1 OSAHRC 547, 555 (1972) (emphasis added).

[*21]

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The Commission has dealt with the matter of employee exposure in numerous decisions. In Secretary v. Arizona Public Service Company, 4 OSAHRC 1229, 1231 (1973), we held that where an employee "was not actually exposed there [was] no violation." (Emphasis added.) Although we may not have literally enunciated the application of the accual exposure rule in such clear language in our other decisions on the subject, those decisions demonstrate that the actual exposure rule has in fact been followed by the Commission. n14 Finding good cause for adhering to that rule, I would hold that there is no violation of 29 U.S.C. 654(a)(2) unless the complainant establishes that at least one of a cited respondent's employees was actually exposed to a hazard as a result of a failure to observe the requirements of an occupational safety and health standard.

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[*22]

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I agree with the conclusion expressed in several appellate decisions that employer liability for failing to comply with legislative and regulatory standards should be assessed on a basis of reasonableness. See also McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Accordingly, I believe that the Act's objective of protecting employees from hazardous working conditions contemplates affixing liability upon the employer who exposes his employees to unsafe conditions but only when that employer's employees are directly endangered by the work they are performing for that employer. This is consistent with our prior pronouncement that "the intent of the Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered employees." Secretary v. Hawkins Construction Company, 8 OSAHRC 569, 570 (1974).

For several reasons, I disagree with the adoption of a rule that establishes employer liability on the basis of proof that an employer's employees will have access [*23] to a zone of danger created by a safety violation. Primarily, the nebulousness of such a rule of law will result in undesirable imprecision in applying it. n15 For example, the question of what degree of proximity to a hazard constitutes access thereto is subject to wide and varied interpretations. Conceivably, any worker on a large worksite has access to any hazard existing thereon. Although his normal duties may place him in a position where he is not endangered by the hazard, it is possible to speculate that, for his own purposes or for other reasons not related to his assigned duties, he may engage in unexpected conduct that would cause him to be actually endangered by an unsafe condition. To require an employer to engage in speculation as to the possibility of such aberrant behavior to protect himself from liability is clearly unreasonable. That unreasonableness is compounded in those situations where many different contractors are employed on a project. For instance, in Secretary v. Union Boiler Company, 7 OSAHRC 218 (1974), 40 different contractors participated in the construction of a power plant. Should all 40 speculate as to what constitutes access to a hazard [*24] by their employees even though the normal duties of those employees will not actually expose them to that hazard? I think not. Such a requirement is grossly unreasonable, but that is exactly what the Barnako-Cleary crystal ball rule requires.

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n15 Of course, I recognize that in many instances the question of whether there was actual exposure will have to be decided on an ad hoc basis in each case. However, I don't believe that the actual exposure rule provides nearly as vast a margin for disagreement among reasonable minds as will prevail under an access rule.

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Another deficiency in their access rule is that it does not properly deal with the possibility that an employer might correct a hazardous condition before any of his employees are exposed thereto in the normal performance of their duties. I predict that under this rule we will see future cases where an employer is held liable although he has limited the assigned duties of his employees so as not to actually expose them to a hazardous condition and intended [*25] to correct the conditions before there was actual exposure. The unfairness of such a rule is obvious. Moreover, it rests on a shaky foundation. A good illustration of this is provided in Secretary v. Allied Electric Company, 1 OSAHRC 440, 450 (1972), one of the major touchstones in the lead opinion.

The Judge in that case found no employer liability on the basis of insufficient evidence of employee access to the hazard. He applied the accessibility test because:

"It would be an undue burden on the [complainant] to require a showing of actual use of defective equipment. Any such requirement would cause the compliance officer to wait around in hopes of someone using the equipment. This would result in a cat-and-mouse game as contended by the [complainant]. More importantly, it would expose an employee to a hazard prior to the Secretary being able to require it to be corrected."

Id. at 451. My colleagues rely on the same rationale which, in my opinion, overstates the matter.

The complainant can establish actual exposure of an employee by means other than the eyewitness testimony of the inspector. Proof of a crime or a tort is often established by evidence developed [*26] in an investigation conducted after the commission thereof rather than by eyewitness testimony. Since both inspection and investigation are provided for in the Act, the inspector can utilize investigative procedures to obtain evidence of actual exposure prior to his inspection. 29 U.S.C. 659(a). Furthermore, actual exposure can be established by circumstantial evidence. See Secretary v. Sun Shipbuilding and Drydock Co., 11 OSAHRC 171 (1974). However, even if it were necessary for the complainant to play "a cat-and-mouse game," this is far better than playing the Barnako-Cleary crystal ball game which improperly shifts the burden of proof to employers and requires employers to satisfy them that their prediction of the future would not have come true - which probably will prove to be a virtual impossibility - rather than requiring the complainant to establish exposure.

Under our system of jurisprudence, a prosecutor's burden has always been a heavy one, and for good reason - to preclude the conviction of innocent persons. In my view, the rule established in this case will result in punishing wany innocent employers. This would be precluded under an actual exposure [*27] rule without significantly impeding the corrective purposes of the Act. n16 After employers are advised of unsafe conditions by inspectors, they can be expected to voluntarily correct those conditions before their employees are actually exposed thereto. n17 This is consistent with congressional recognition of the fact that the purposes of the Act can best be achieved by voluntary means. 29 U.S.C. 651(b); Staff of the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1216 (Comm. Print 1971). The law, of course, is not designed to facilitate convictions but to ensure safe and healthful workplaces.

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n16 The Act is directed at reducing employee deaths, injuries, and illnesses. These are not likely to result if there is no actual exposure of an employee to a hazard. Comment, OSHA: Developing Outlines of Liability in Multi-Employer Situations, 62 Geo. L.J. 1483, 1490 (1974).

n17 If they do not, they risk being cited on a reinspection which establishes actual exposure.

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As the lead opinion notes, the Circuit Court concluded that the record does not establish that any employee of this respondent n18 was actually exposed to any hazard resulting from the unsafe condition of the scaffold. I agree with that determination. There is no evidence that any of the respondent's employees had been assigned to duties that required them to use the scaffold or to work in a position of danger underneath it. Nor, was there evidence that any of its employees had, because of their assigned duties or for other reasons, passed through the zone of danger beneath the scaffold. Additionally, there is no evidence that any of the respondent's employees were ever located in positions on the roof where they were in danger of being struck by the outrigger beam or other components of the scaffold which might have moved because of a defect in the scaffold or as a result of its falling. The record does indicate that roofers and "other people . . . a lot of [whom] were NASA people" were on the roof when the scaffold was improperly secured. However, the proximity of these people to the scaffold is not established, and none of them are identified [*29] as employees of the respondent.

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n18 The parties stipulated that the average daily number of employees on the worksite was 30. I note, however, that the respondent contended in its answer to the complaint "that only six or eight of these employees were on the job site at the time" covered by the complaint. No evidence to the contrary was introduced during the proceedings.

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The facts in this case clearly illustrate why the accessibility rule imposes strict liability on employers. Southern's foreman had been told by one of the respondent's superintendents that the scaffolding must be tied down. Accordingly, as the lead opinion indicates, the I-beams of the scaffold ware initially tied back to eye bolts located in the roof. Subsequently, another one of the respondent's superintendents observed that the scaffold was tied down to the roof. To accomplish its work, Southern had to move the scaffold a number of times. My colleagues, in effect, hold the respondent liable for not checking the scaffold after the last [*30] move. This means that to avoid liability the respondent would have to have had a supervisor present each time that the scaffold was moved. The ramifications of this are apparent. In the future it will be necessary for general contractors to constantly provide a supervisor over each of his subcontractors, no matter how many there may be on a project, to insure that the subcontractors comply with all their safety responsibilities in those areas which the subcontractors control on the worksite and where only the subcontractors' employees are actually exposed to a hazard. This is senseless and contrary to the concept that the Act does not impose strict liability on employers.

For the foregoing reasons, I would adhere to our decision of October 9, 1973, vacating the citation and the penalty assessment.