OSHRC Docket No. 76-2552

Occupational Safety and Health Review Commission

October 26, 1977


Before: CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Martin J. Saunders, for the employer



BY THE COMMISSION: A decision of Review Commission Judge George W. Otto, dated March 1, 1977, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed a citation for a serious violation of the personal protective equipment standard codified at 29 C.F.R. 1926.28(a) n1 and assessed a $600 penalty therefor. The respondent filed a petition for discretionary review of that decision, raising the following significant issues:

(1) Whether the respondent knew or with the exercise of reasonable diligence, should have known, that its employee was not utilizing a safety belt.

(2) Whether the use of a safety belt was feasible.

(3) Whether the hazard of compliance with the cited standard was greater than the hazard of noncompliance with it.

(4) Whether the assessment of a $600 penalty was appropriate and whether prejudicial error resulted from the admission into evidence of the inspector's penalty worksheet.

(5) Whether prejudicial error resulted from the inspector's [*2] pretrial destruction of his inspection notes.

For reasons that follow, the Judge's decision is affirmed.

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n1 This standard provides that:

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.

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The respondent was engaged in the construction of a seven-story parking garage when its worksite was inspected by an authorized representative of the Department of Labor. The inspector who conducted the inspection observed one of the respondent's employees, Walter Jackson, leaning out over the unguarded third floor of the structure. The respondent was cited because Jackson was not using a safety belt, nor was he otherwise protected, while engaged in the process of trimming the outer edge of the prestressed concrete slab floor with a saw.

Jackson testified that he had worked in the same unprotected fashion prior [*3] to inspection and that he was never instructed to wear a safety belt. He also stated that belts were provided for ironworkers but not laborers.

The respondent's field superintendent, Floyd Page, testified that he was unaware that Jackson was working without a belt and that belts were available at the site. Although employees were told to wear them when in unsafe areas, this determination was discretionary. His testimony fails to establish that Jackson was specifically told to wear a safety belt when trimming concrete. Page also testified that there was nothing in the area to tie off to except three-inch rebars which could not support 5,400 pounds. He further indicated that large concrete panels were being lifted into place by crane and that it was unsafe for employees to be tied off while working in the vicinity of these panels because they could be injured by a shifting panel.

The inspecting officer testified that Jackson was exposed to serious injury as he was working 30 feet above a hard ground surface. He considered a safety belt, tied off to the three-inch rebars, to be an appropriate form of personal protective equipment. These rebars were located on the concrete floor [*4] two feet behind Jackson.

Judge Otto found that the occurrence of the violation "was within the knowledge of the [respondent] prior to the actual performance of the assigned work." The failure of the respondent to give adequate instructions to Jackson regarding the use of personal protective equipment indicates that the respondent failed to exercise reasonable diligence and adequately supports the Judge's finding that the respondent possessed the requisite knowledge. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). Judge Otto's finding on employer knowledge is therefore correct. n2

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n2 The respondent takes exception to two of the Judge's associated findings. These exceptions lack merit. Jackson's testimony supports the Judge's finding that Jackson was performing his duties in his usual and ordinary way. The testimony of both Jackson and Page establishes that the respondent neither instructed nor required Jackson to wear a safety belt.

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On the feasibility [*5] issue, the respondent argues that no suitable anchorage was available for tying off a safety belt where Jackson was working. n3 The record, however, persuasively supports the Judge's finding that the rebars provided suitable anchorage for the attachment of a safety belt. Although Page testified that he did not think the rebars could hold 5,400 pounds, the complainant's area director testified that the rebars were capable of supporting a working load of 4000-6000 pounds. Impossibility of compliance with 29 C.F.R. 1926.104(b) is not a defense to a citation for noncompliance with 29 C.F.R. 1926.28(b). Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976); see Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976).

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n3 Under 29 C.F.R. 1926.104(b), "[l]ifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds." (Emphasis added.)

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In regard to the respondent's "greater hazard" defense, the Judge's decision states:

Respondent contends the attachment to rebars would interfere with escape from an errant heavy panel. The panels were controlled by the crane operator and by ropes handled by two employees on the ground; the panel operation was suspended during windy periods. If in fact the panels were installed under windy conditions, the hazard due to the wind would be greatly increased for the exposed employee regardless of the panel location, considering the employee had to lean over the side to perform the concrete cutting at a point below foot-level. Even if a panel did move improperly toward the employee, there is no indication in the record that it would penetrate the floor area to a point within or beyond the lanyard radius. The fact that an employee without appropriate personal protective equipment might remove himself further from the building edge than the lanyard would permit did not necessarily make the practice safer. There was no untoward panel movement during exposure . . . .

The Commission agrees with these findings and also observes that Jackson testified that [*7] he was out of the area before the panels were installed.

For a "greater hazard" defense to prevail, the evidence must establish that: (1) the hazards of compliance would have been greater than the hazards of not complying; (2) alternative means of protection were unavailable; and (3) a variance application under 29 U.S.C. 655(d) would have been inappropriate. 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). In the instant case, the respondent has failed to prove any of these elements.

There is no error in the Judge's admission of the penalty worksheet. It was an original writing. See Fed. Rules of Evid. Rule 1002. The inspector testified that he prepared it himself for the purpose of calculating the proposed penalty. He testified in detail as to its content and was cross-examined thereon by the respondent's counsel. See Fed. Rules of Evid. Rules 612 and 801(c). The inspector also testified that the worksheet was "kept in the ordinary course of business in the OSHA office." See Fed. Rules of Evid. Rule 803(6). The respondent's contentions that the document is hearsay and not the best evidence therefore [*8] have no merit. However, if it was improperly admitted, there was no prejudice to the respondent. The Judge properly based his $600 penalty assessment on his own independent evaluation of the penalty assessment factors set forth at 29 U.S.C. 666(i), the penalty worksheet having been introduced solely for the purpose of showing how the complainant arrived at his proposed penalty. Moreover, the Commission finds that the assessed penalty is appropriate in light of the gravity of the violation and the lack of specific safety instructions.

Jackson was subject to a three-story fall while working at the edge of the building without any fall protection. Under these circumstances, it was highly probable that he could fall. There was also a substantial probability that such a fall would result in death or serious physical harm.

The final issue to be resolved is whether the destruction of the inspector's notes requires that his testimony be stricken.

At the close of direct examination of the inspector, the respondent requested production of any notes made during the inspection, citing Frazee Construction Co., infra. Following an off-the-record discussion, the respondent asked [*9] the inspector if he had made any notes during the inspection. The inspector indicated that he had used notes to make out a "narrative" which was provided to the respondent. The notes had been destroyed. The respondent moved to strike the inspector's testimony because of what he characterized as a "flagrant violation" which undermined the purpose of the Jencks rule. n4 Counsel stated that there was no effective way of cross-examining the witness' recollection and that the narrative produced off-the-record was self-serving. n5 The witness was not questioned regarding any omissions or additions to his narrative, the substance of the original notes, or his reasons for destroying the notes.

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n4 The Jencks Act, 18 U.S.C. 3500, requires the government to turn over any pretrial statements of government witnesses during criminal prosecutions. The statute enacted into law principles first announced in Jencks v. United States, 353 U.S. 657 (1957).

n5 This document was not made part of the record.

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Notes made by an inspector [*10] during the course of an inspection are discoverable by a respondent when the inspector appears as a witness. n6 Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973-74 CCH OSHD para. 16,409 (No. 1343, 1973). n7 Furthermore, some cases have held that the principle of the Supreme Court's Jencks decision is generally applicable to administrative proceedings. Harvey Aluminum (Incorporated) v. NLRB, 335 F.2d 749 (9th Cir. 1964). n8

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n6 The question of pretrial discovery is not before the Commission in this case. Commission Rules 53-55, 29 C.F.R. 2200.53-.55, permit such discovery upon order of the Judge or the Commission, as appropriate.

n7 Notes made during a government investigation have been held subject to production, even if their contents are included in subsequent reports. United States v. Harris, 543 F.2d 1247 (9th Cir. 1976).

n8 See also Great Lakes Airlines, Inc. v. CAB, 291 F.2d 354 (9th Cir. 1961); Communist Party of United States v. Subversive Activities Control Board, 254 F.2d 314, 327-328 (D.C. Cir. 1958); and United States v. Bostic, 336 F. Supp. 1312 (D.S.C. 1971), aff'd, 473 F.2d 1388 (4th Cir. 1972), cert. denied, 411 U.S. 966 (1973).


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The Commission, however, need not reach the question of the applicability of the Jenck's rule in this case because the record establishes that the error if any was harmless. Lewis v. United States, 340 F.2d 678, 684 (8th Cir. 1965); Fed. R. Civ. P. 61. Even if the inspector's testimony is excluded, the violation is established by other independent evidence, particularly the testimony of Jackson and Page.

Accordingly, the Judge's decision is affirmed.