PAUL BETTY d/b/a BETTY BROTHERS

OSHRC Docket No. 76-4271

Occupational Safety and Health Review Commission

February 27, 1981

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

William F. Betty, Jr., Betty Brothers, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision Judge Harris vacated citations alleging that Respondent, Paul Betty d/b/a Betty Brothers, committed a repeated violation of the standard at 29 C.F.R. 1926.451(d)(10) n1 and other than serious violations of the standards at 29 CFR 1926.451(a)(13) n2 and 29 C.F.R. 1926.25(a). n3 Penalties were proposed for these alleged violations in the amounts of $300, no penalty, and $50, respectively. Although the judge found that noncomplying conditions existed at the worksite, he vacated the citations on the basis that the work performed by Respondent's employees was done without Respondent's authorization and that Respondent "did not and could not, with the exercise of due diligence, have known of the presence of the violations [*2] alleged herein."

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n1 This standard provides:

1926.451 Scaffolding.

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(d) Tubular welded frame scaffolds.

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(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

n2 This standard provides:

1926.451 Scaffolding

(a) General Requirements

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(13) An access ladder or equivalent safe access shall be provided.

n3 This standard provides:

1926.25 Housekeeping

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

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The Secretary of Labor's ("Secretary") petition for discretionary review of the judge's decision was granted by Chairman Cleary. Review was directed on the following issues raised in the Secretary's petition: n4

(1) Whether the Administrative Law Judge erred in vacating the alleged nonserious violations in this case on the basis that the work was being done without Respondent's knowledge and that Respondent did not and could not, with the exercise of reasonable diligence, have known of the violations?

(2) Whether the actual knowledge of the senior employee at the worksite should be imputed to Respondent?

For the reasons that follow, we reverse the judge's decision.

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n4 In his brief on review, the Secretary points out that, although citation 1 alleged a repeated violation of section 1926.451(d)(10), Chairman Cleary's direction for review characterized all of the alleged violations as "nonserious." At the hearing, the Secretary introduced evidence on the repeated nature of this alleged violation. Accordingly, on review the Commission will determine whether the alleged violation was properly classified as repeated within the meaning of section 17(a) of the Act, 29 U.S.C. 666(a).

[*4]

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On August 30, 1976, Compliance Officer Donald Poore of the Occupational Safety and Health Administration (OSHA) conducted an inspection of a single dwelling unit located on lot 88 of the Bicentennial Village housing development in Dover, Delaware. Respondent, the plastering and stucco subcontractor for the development, was under contract with Kent Construction Company, the general masonry contractor. n5 The general contractor for the development was Nettles and Ashburn.

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n5 Prior to the inspection, Respondent had completed the plastering work on five homes in the development. Under its agreement with Kent Construction Co., Respondent submitted individual estimates on individual units as they neared completion.

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At the hearing, the compliance officer testified that upon arriving at the worksite he observed two of Respondent's employees, Bernard Yeatman, a plasterer, and Curtis Wolfendeal, a laborer, working on a 12 foot-high tubular welded [*5] frame scaffold. The scaffold was not equipped with guardrails on all open sides and ends or with an access ladder. The compliance officer observed Wolfendeal climbing the cross bracing of the scaffold. The compliance officer also found that the ground surrounding the dwelling unit and scaffold was littered with broken concrete blocks and lumber with protruding nails. The compliance officer further testified that during the inspection Yeatman identified himself as a foreman for Betty Brothers. Following the inspection, the compliance officer conducted a closing conference with Yeatman at the worksite.

The compliance officer also testified that during his investigation he spoke to Tony Ashburn, the general supervisor at the site, and to Walt Nelson, a representative of Kent Construction Company. Ashburn informed the compliance officer that he did not instruct Respondent's employees to begin work on lot 88. According to the compliance officer, Nelson informed him that, although there was no contract between Respondent and Kent Construction Company to begin work on the unit on lot 88, Respondent knew that it would plaster this unit. Neither Ashburn nor Nelson testified at the [*6] hearing.

According to the compliance officer, Respondent's failure to provide guardrails on the scaffold was charged as a repeated violation because Respondent previously had been cited for a violation of the same standard and the prior citation had become a final order of the Commission. The hazard associated with the cited condition was characterized as "high nonserious."

With respect to his duties on the worksite, Yeatman, a plasterer with 30 years experience, testified that he was responsible for supervising Wolfendeal. Yeatman also was authorized to purchase construction materials on Respondent's account. At the end of each work week, Yeatman supplied Respondent with time cards describing the work done during the week. According to Yeatman, Lex Betty was Respondent's foreman in charge of the Bicenntenial Village housing site. Foreman Betty, who did not visit the worksite on a daily basis, normally assigned a series of tasks to Yeatman so that upon completion of one task, Yeatman would move to another location and begin work. While working at the housing project Yeatman did not communicate with the Respondent unless "something happened" or unless Respondent contacted him. [*7] Respondent's business office was located in Wilmington, Delaware.

Yeatman testified that he and Wolfendeal originally had been instructed by Lex Betty to complete an archway on a dwelling unit on lot 10 of the development. Upon arriving at lot 10, Yeatman discovered that construction had not progressed to a point that would allow him to begin work. Thereupon, Ashburn asked Yeatman to begin plastering work on a dwelling unit on lot 88. This dwelling unit was owned by Ashburn and, upon completion, was to be his home.

Yeatman testified that, prior to being directed to work on lot 88, he had received other working assignments from Ashburn. These assignments, however, involved minor repairs. According to Yeatman, the work on lot 88 did not involve minor repairs but new construction. Assuming that Respondent had contracted to perform this work, Yeatman proceeded to lot 88 and began work on Ashburn's home. n6 Yeatman had never been instructed by Respondent to begin work on this lot. During the three-day interval between commencement of this work and the OSHA inspection on August 30, 1976, Yeatman did not contact Respondent.

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n6 Yeatman's assumption also appeared to be based upon his knowledge that Kent Construction Co. considered the unit ready for plastering and that the unit on lot 88 was the next unit on the development ready for such work.

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Yeatman testified that OSHA standards had been posted at Respondent's workshop prior to the inspection and that employees had received a pamphlet containing these standards. Respondent also conducted a meeting with regard to the standards. Yeatman's testimony with respect to the requirements imposed by the standards, however, was contradictory. Yeatman testified that, although he knew that the scaffold did not comply with OSHA standards, he continued to work on the scaffold without informing Respondent of this condition contrary to Respondent's policy requiring employees to report all conditions that violate OSHA standards. Yeatman then testified that he first learned of the OSHA requirements for guardrails and an access ladder on the day of the compliance officer's inspection.

Paul Betty, appearing pro se, stipulated that the scaffold, [*9] as it existed on the day of the inspection, was in violation of the cited standards. Betty testified that Yeatman had been assigned to work on archways on a different lot of the development and that, prior to the inspection, Respondent had no contact with Yeatman and was not aware that he was working on lot 88. Betty further testified that at the time of inspection Respondent did not have a contract nor had it begun negotiations with Kent Construction Company to perform the plastering work on lot 88. Following the inspection, Respondent contracted to complete the work begun by Yeatman. According to Betty, much of the scaffolding that would have been used on lot 88 was at a different worksite. Ordinarily, such a job would require a crew of six persons under full supervision. Betty also testified that Respondent had instituted a policy whereby employees who failed to comply with OSHA standards were terminated.

II

As noted previously, it was not disputed and the judge found that the cited conditions did not comply with the requirements of the standards and that Respondent's two employees were exposed to the hazards resulting from the noncomplying conditions. These findings are [*10] not disputed on review.

On review, the Secretary argues that Respondent could have known of the cited violations by exercising reasonable diligence. The Secrecary contends that, by neglecting to adequately train and supervise its employees, Respondent failed to exercise such diligence. Alternatively, the Secretary argues that Yeatman should be considered a supervisor and that his knowledge should be imputed to Respondent. Accordingly, the Secretary argues that Respondent's lack of knowledge defense should be rejected. Respondent, on the other hand, asserts that it adequately instructed its employees in safe working practices, consistent with OSHA standards.

We need not reach the issue of whether Respondent actually made sufficient inquiries into conditions on the site because we find that Yeatman must be considered a supervisor and his knowledge imputed to Respondent. An employee delegated supervisory authority has been found to be a supervisor for the purposes of determining whether that employee's knowledge may be imputed to his employer. Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977), aff'd, 595 F.2d 309 (5th [*11] Cir., 1979); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNS OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977). It is the substance of the delegation of authority over other employees that is of primary importance and not the title of the employee to whom authority is given. Iowa Southern Utilities Co., supra. Based upon his substantial supervisory authority at the worksite, his work experience and the fact that Respondent otherwise provided minimal on-site supervision, we find that Yeatman functioned as Respondent's supervisor at the time of the inspection.

Despite the fact that Respondent's site foreman, Lex Betty, made periodic visits to the job, it is clear that Yeatman, an experienced plasterer, exercised considerable independent authority on behalf of Respondent. He supervised Wolfendeal. He possessed authority to purchase material on Respondent's account. He also apprised Respondent of construction progress on weekly time cards. It was through Yeatman that Respondent would learn if "something happened" on the job. As indicated by his conversation with Ashburn and his participation in the closing conference with the compliance officer, Yeatman acted [*12] as Respondent's on-site representative. Indeed, when approached by the compliance officer on the day of the inspection, Yeatman acknowledged that he was foreman on the job. n7

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n7 Although Yeatman denied that he was ever employed as Respondent's foreman, this testimony does not contradict the compliance officer's testimony that Yeatman identified himself as foreman on the day of the inspection.

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Furthermore, we note that the work performed by Yeatman on lot 88 was the type of work for which Respondent had contracted with Kent Construction Company in the past. Prior to the inspection, Respondent completed plastering on five other homes at the site. The record also indicates that Yeatman was informed by Kent Construction Company that the home on lot 88 was ready for plastering. Following the inspection, Respondent contracted to complete the work begun by Yeatman. Finally, it is clear that in beginning work on lot 88, Yeatman acted in response to the direction of Ashburn, the general supervisor on the job, from whom [*13] he had received past instructions, albeit with regard to less extensive repair work. In view of the foregoing, we find that Yeatman functioned as a supervisor such that his knowledge is imputable to Respondent.

Although an employer is generally responsible for a violation either created by its supervisory personnel or within their actual or constructive knowledge, the employer may defend by showing that it took all necessary precautions to comply with the Act, including adequate supervision of its supervisory personnel. Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670, (No. 76-2414, 1979). In order to sustain this defense, the employer must show that it established workrules designed to prevent the violation; adequately communicated these rules to its employees; and, effectively enforced these rules when violations were discovered. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457, (No. 76-3105, 1980). Having entrusted Yeatman with considerable supervisory responsibility, it was incumbent upon Respondent to adequately train him with respect to hazards associated with his work. This is especially true [*14] since Respondent otherwise provided minimal on-site supervision. See Baroid Division of NL Industries, Inc., 79 OSAHRC 45/A9, 7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979) (lead and concurring opinions), petition for review filed, No. 79-1775 (10th Cir. Aug. 16, 1979). An employer cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning dangerous working conditions. Danco v. OSHRC, 586 F.2d 1243 (8th Cir. 1978).

We conclude that Yeatman was not adequately instructed. Yeatman's testimony reveals that, although Yeatman had a general awareness of the cited standards' requirements, he was unaware of the fact that a twelve foot high scaffold should be equipped with guardrails and an access ladder. In its submission on review, Respondent concedes that Yeatman was "ignorant" of the OSHA standards, copies of which were dispensed to employees and discussed in a safety meeting. Respondent argues that Yeatman's ignorance does not compel the conclusion that he was inadequately trained. We cannot agree. In order to fulfill its statutory obligation an employer must do more than issue safety instructions [*15] or hold safety meetings. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). Specific safety instructions and workrules concerning particular hazards that may be encountered on the job are the essential foundations of an adequate safety program. Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977). Nevertheless, Yeatman, Respondent's senior employee at the jobsite, did not recognize the scaffold's deficiencies until informed of them by the compliance officer. In view of this fact, we conclude that Respondent's safety program was not adequately communicated to Yeatman by Respondent. We, therefore, find that Respondent has not carried its burden with respect to this element of the defense.

In addition, Respondent has not proven that its safety program was effectively enforced. The only evidence in this respect was that Respondent has a policy whereby employees who failed to comply with OSHA standards were terminated. There is, however, no evidence that any discipline was ever imposed. There is no evidence that Respondent made any efforts to ascertain whether [*16] its safety rules were followed. Effective safety enforcement requires a diligent effort to discover and discourage violations of safety rules by employees. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 1978); B-G Maintenance Management, Inc., supra. No such effort has been shown on the record here.

Thus, we reverse the judge's finding on the issue of Respondent's knowledge. For the reasons stated, we conclude that Yeatman was a supervisor such that his knowledge of the violative conditions is imputed to Respondent. n8 Accordingly, we find Respondent in violation of the cited standards.

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n8 In our disposition of this issue, we have not relied on the compliance officer's testimony regarding statements allegedly made by general supervisor Ashburn and the representative of Kent Construction Company, Walt Nelson.

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III

Although the Secretary proved that Respondent violated the standard contained at section 1926.451(d)(10), he has failed to establish [*17] that the violation was repeated within the meaning of section 17(a) of the Act, 29 U.S.C. 666(a). In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD P23,294, p. 28,171 (No. 16183, 1979), we held that "[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." Consistent with this requirement, we have rejected the allegation that a violation was repeated when the Secretary has failed to prove that the antecedent violation upon which he relied became a final order of the Commission prior to the occurrence of the violation under review. See, e.g., Otis Elevator Co., 80 OSAHRC 14/A2, 8 BNA OSHC 1019, 1980 CCH OSHD P24,236 (No. 14899, 1980), appeal withdrawn, No. 80-4070 (2d. Cir. May 13, 1983). n9

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n9 Commissioner Barnako's views with respect to repeated violations are set forth in his separate opinion in Potlatch Corp., supra. He nevertheless agrees with his colleagues that the Secretary must prove that the antecedent violation upon which he relies became a final order of the Commission prior to the date of the violation alleged to be repeated. See Otis Elevator Co., supra, 8 BNA OSHC at 1026 n.18, 1980 CCH OSHD at p. 29,486 n.18.

[*18]

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The violation of the standard at section 1926.451(d)(10), the violation at issue, occurred on August 30, 1976. In order to sustain his allegation that this violation was repeated, the Secretary must show that the prior Commission order, upon which he based his allegation, became a final order before August 30, 1976. The prior Commission order upon which the Secretary relies is a settlement agreement between the Secretary and Respondent in which Respondent withdrew its notice of contest to a citation alleging a serious violation of the standard at section 1926.451(d)(10). This settlement agreement was approved by the Commission on September 30, 1976. n10 See Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978), appeal dismissed, No. 79-7047 (9th Cir. Feb. 7, 1980). The prior Commission order thus did not become final before the date of the alleged repeated violation, August 30, 1976. Accordingly, we find that the Secretary has failed to establish a repeated violation under the Potlatch test.

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n10 The settlement agreement was introduced into evidence at the hearing as exhibit C-6. At the hearing, counsel for the Secretary stated that the agreement, introduced into evidence, bore a stamp indicating that the agreement had been "granted" by the Commission. Upon examining exhibit C-6, we find no such stamp. Examination of the Commission's official files for the above-docketed case reveals that the settlement agreement was approved by the Commission on September 30, 1976. In resolving the issue of the repeated nature of this violation, we take official notice of this date from the Commission's records.

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Nevertheless, the Secretary did establish that Respondent violated the standard at section 1926.451(d)(10). The compliance officer characterized the hazard associated with this condition as "high nonserious." Based upon this testimony and the photographic exhibits introduced at the hearing, we find [*20] that Respondent committed an other than serious violation of the standard at section 1926.451(d)(10).

IV

The Secretary proposed a $300 penalty for the alleged repeated violation of the standard at section 1926.451(d)(10). The compliance officer considered the alleged repeated nature of the violation as a factor in calculating this penalty. Since we have found that the violation was not repeated, we consider the $300 proposed penalty to be excessive. Accordingly, upon consideration of the penalty adjustment factors contained in section 17(j) of the Act, n11 we assess a penalty of $150.

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n11 Section 17(j), 29 U.S.C. 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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The Secretary also proposed a $50 penalty for Respondent's [*21] other than serious violation of the standard at section 1926.451(a)(13). In our opinion, the existence of this violation presented a moderate potential for injury to employees at the worksite. In view of this fact and the small size of Respondent's business, we conclude that a $50 penalty is appropriate. The Secretary did not propose a penalty for Respondent's violation of the standard contained at section 1926.25(a) and we assess no penalty for this violation.

Accordingly, we reverse the judge's decision. We affirm other than serious violations of the standards at section 1926.451(d)(10), section 1926.451(a)(13) and section 1926.25(a). A $150 penalty is assessed for the violation of section 1926.451(d)(10). A $50 penalty is assessed for the violation of section 1926.451(a)(13). No penalty is assessed for the violation of section 1926.25(a).

SO ORDERED.