UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC DOCKET NO. 3395 |
|
OKLAND CONSTRUCTION COMPANY |
|
|
Respondent. |
|
February
20, 1976
DECISION
BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BARNAKO,
Chairman:
In
this matter Complainant’s (Labor) citation alleged that Respondent committed a
serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C.
§ 651 et seq.) because, contrary to 29 C.F.R. § 1926.28(a)[1]
its employees exposed to the hazard of a fall from formwork they were
assembling for the placement of concrete were not required to wear appropriate
equipment to protect against this hazard. Specifically, Labor alleged that the
employees could fall because they were working while standing on horizontal
beams, or walers. Administrative Law Judge John J. Morris found that one
employee not wearing a safety belt was standing on a waler while working at a
point on the forming about eight feet above a scaffold platform and concluded
that work being performed in this manner is hazardous. Accordingly, he affirmed
Labor’s citation and assessed a penalty of $550 therefor.[2]
For the reasons given below we affirm his decision.
It
is undisputed that one employee fell between 15 and 18 feet to his death while
installing one of the walers, which were 2- by 4-inch boards. It is further
undisputed that this employee was not wearing a safety belt at the time he
fell. However, approximately 40 minutes before his fall he had been working
while standing on the aforementioned scaffold, which was equipped with a
guardrail. There is no direct evidence showing where he was standing when he
fell or the cause of his fall.
Respondent
does not contend that an employee working while standing on a 2- by 4-inch beam
is not exposed to the hazard of a fall. Rather, Respondent contended, among
other things, that on these facts Labor failed to prove that a hazardous
condition existed requiring the use of a safety belt because it did not
establish that the deceased employee had been on a waler at the time he fell.
Respondent also argued that, in any event, the cited standard does not impose a
requirement for the use of safety belts.
We
have since held that employees exposed to the hazard of a fall are required by
this standard to use safety belts or some type of personal fall protective
equipment. E.g., Island Steel and Welding, Lte., 17 OSAHRC 143, BNA 3
OSHC 1101, CCH E.S.H.G. para. 19,545 (1975); Eichleay Corporation, 15
OSAHRC 635, BNA 2 OSHC 1635, CCH E.S.H.G. para. 19,324 (1975); Carpenter
Rigging and Contracting Corporation, 15 OSAHRC 400, BNA 2 OSHC 1544, CCH
E.S.H.G. para. 19,252 (1975); Hoffman Construction Company, 15 OSAHRC
327, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (1975), petition for review
docketed, No. 75–1741 (9th Cir., March 27, 1975). Accordingly, we reject
Respondent’s contention to the contrary.
We
turn now to the question whether Labor on the facts proved that Respondent’s
employee was exposed to the hazard of a fall. As previously noted, the only
direct evidence as to this employee’s location is that he was on a guarded
scaffold at a time prior to his fall. Nevertheless, the judge found that he
fell from a waler above the scaffold. The judge’s finding is based on
inferences he drew from the testimony of two fellow employees and the job
superintendent describing the method by which the work was being performed and
their observations of the deceased employee both before and after his fall.
That is, the judge’s decision is predicated on circumstantial rather than direct
evidence. His inferences and resultant finding are reasonable, but, arguably,
different inferences and a contrary finding would have been equally proper.
However,
it is the judge who as trier of fact had the opportunity to observe the
demeanor of the witnesses, evaluate their credibility,[3]
and weight the evidence accordingly. Since his finding is supported by the
evidence, it cannot be said that he erred. Under such circumstances, we do not
believe it appropriate to reweigh the evidence on review and substitute our
view of the evidence simply because a contrary factual finding is also
possible. Accordingly, we will adopt the judge’s decision on the merits
concerning the existence of the violation.
We
also agree with the judge that on the facts the violation is serious in nature[4]
and that a penalty of $500 is appropriate. Lastly, Judge Morris correctly
disposed of the other issues before him, and we note that on review Respondent
presents no specific argument in opposition to his decision.
Accordingly,
it is ORDERED that the Judge’s decision be and the same is hereby affirmed.
FOR
THE COMMISSION:
William
S. McLaughlin
Executive
Secretary
BY:
Gloria W. White
Acting
Executive Secretary
MORAN,
Commissioner, Dissenting:
The
foregoing opinion presents an interesting contrast to the opinion rendered by
the same two members in Secretary v. Allis-Chalmers Corp., 20 OSAHRC 546
(1975).
In
the instant case the Judge’s opinion sustained the Secretary of Labor’s
position. Messrs. Barnako and Cleary uphold that finding and state:
‘. . .
it is the Judge who as trier of the fact had the opportunity to observe the
demeanor of the witnesses, evaluate their credibility, and weigh the evidence
accordingly. Since his finding is supported by the evidence, it cannot be said
that he erred. Under such circumstances, we do not believe it appropriate to
reweigh the evidence on review and substitute our view of the evidence simply
because a contrary factual finding is also possible.’ [Footnote omitted.]
In
Allis-Chalmers, the Judge’s opinion sustained the employer’s position.
The same two members who today say it is not appropriate for them ‘to reweigh
the evidence . . . and substitute our view of the evidence,’ did exactly that
in Allis-Chalmers. They reversed the Judge and entered on opinion
favorable to the Secretary of Labor despite this specific credibility finding
made by the Judge:
‘The
testimony as to how and when to use scaffolds by two Allis Chalmers officials .
. . far outweighs the testimony of Van Kuiken [complainant’s inspector]. All
three were credible witnesses, but Van Kuiken’s views were not supported by
enough knowledge of the subject to be persuasive.’
Messrs.
Barnako and Cleary didn’t accept that credibility finding for, as they said in
that case
‘. . .
the testimony and photographic evidence convinces us that the work
performed on their surfaces [the scaffolds] cannot be done safely.’ [Emphasis
added.]
My
conclusion from reading the Barnako-Cleary opinions in these two cases is this:
When the Judge finds for the Secretary of Labor it is error to substitute their
view of the evidence for his—but when the Judge finds for the employer they
will ‘reweigh the evidence on review’ and substitute their view of the evidence
for that of the Judge. I disagree with this rule for it is my belief that the
Constitution requires equal justice under law. When the Secretary of Labor, as
complainant, and the employer, as respondent, appear as opposing parties in a
case before this Commission the same evidentiary rules should apply to both
parties and the same credibility determinations should apply.
In
the instant case I would vacate the citation on the same basis as that stated
in my opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC
143 (1975). At pages 144–147 of that decision I explained in detail why section
1926.28(a) requires that employees use safety belts only when they are working
at heights that are more than 25 feet above the ground or other surfaces. In
the instant case, that evidence is lacking.
The
Judge found the respondent liable because of a fatal fall of about 16 feet by
one of its employees from the side of the wall on which he was working to the
bottom of a stairwell below. The Judge’s findings were based on estimates by
several witnesses as to the distance of the fall. These estimates ranged from
15 to 22 feet. Since there is no evidence that the employee was working more
than 25 feet above the ground or other surface, the citation should be vacated.
In
view of the repeated references in this decision to Judge Morris’ decision, the
latter is attached hereto as Appendix A.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC DOCKET NO. 3395 |
|
OKLAND CONSTRUCTION COMPANY |
|
|
Respondent. |
|
FINAL
ORDER DATE: November 18, 1974
DECISION
AND ORDER
Appearances:
William J. Kilberg, Solicitor of
Labor T. A. Housh, Jr., Regional Solicitor Henry C. Mahlman, Associate Regional
Solicitor Roger L. Rutter, Trial Counsel of Denver, Colorado for the Secretary
of Labor.
Wilford A. Beesley, Trial
Counsel of Salt Lake City, Utah for the Respondent.
STATEMENT
OF THE CASE
John
J. Morris, Judge, OSAHRC
This
is a proceeding pursuant to 29 USC 659(c) for an adjudication under the
Occupational Safety and Health Act of 1970, (29 USC 651, et seq, hereafter
called the Act). Respondent is contesting a citation issued by Complainant
under the authority vested in Complainant by 29 USC 658.
The
citation alleges that Complainant inspected a workplace described as a power
station and located approximately 46 miles southwest of Park Valley, Utah.
It
is further alleged that on the basis of the inspection at the above workplace
Respondent violated 29 USC 654(a)(2) of the Act by failing to comply with an
occupational safety and health standard promulgated by Complainant, pursuant to
29 USC 655. Abatement one day from receipt of the citation was proposed.
The
contested citation was issued on June 8, 1973; the inspection occurred June 4,
1973. It is alleged that the standard violated was published in the Code of
Federal Regulations at 29 CFR 1926.28(a).
The
description of the serious violation alleged in citation number one states as
follows:
Employees
were allowed to work standing on 2″‘ x 4″‘ walers on the side wall
form without the employer requiring them to wear appropriate personal
protective equipment.
The
foregoing standard as promulgated by the Secretary provides as follows:
§
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.
Pursuant
to the enforcement procedure as set forth in 29 USC 659(a) of the Act, the
Respondent was notified by letter dated June 8, 1973 from the Area Director for
the Occupational Safety and Health Administration U. S. Department of Labor;
said Area Director proposed to assess a penalty for the violation alleged in
the amount of $600. Additional citations and proposed penalties were not
contested and have become the final order of the Review Commission by virtue of
29 USC 659(a).
After
respondent contested this enforcement action, and a complaint and an answer
having been filed by the parties, the case came on for hearing in Ogden, Utah
on December 4, 1973. No parties desired to intervene in the proceedings. Notice
of the hearing was posted (Tr. 5–6)
STATEMENT
OF JURISDICTION Respondent’s answer admits that it is an employer under the
terms of the Act, having nine employees at the construction site in question,
and sixty-five employees at all projects. Further, Respondent does business in
several states (Tr. 5, 9).
In
view of the above, respondent is an employer subject to the terms of the Act
and the Occupational Safety and Health Review Commission has jurisdiction of
the subject matter of this litigation.
COMPLAINANT’S
EVIDENCE
As
a result of a fatality, respondent was investigated on June 4, 1973 (Tr. 9). On
the day of the fatality, laborers were assembling forms for the placement of
concrete and two such laborers were working on the opposite sides of an 8 inch
wall. Employee Schwandt had been working with Lasson (deceased) on Lasson’s
side of the wall 10 or 15 minutes before the accident (Tr. 14, 20, 21–22, 98,
99). At that time Lasson was not wearing a safety belt or using a ladder, nor
did either employee use a belt although when Schwandt was working on walers he
used a safety belt ‘most of the time’ (Tr. 21–22). There were safety belts on
the job and Schwandt had been told they were to be used (Tr. 17–18, 22). At the
time of this accident Schwandt and Lasson were in the second day of erecting
wooden forms (Tr. 26) which are known as ‘walers’ which are 2 x 4’s in
corresponding positions on each side of the forms. The walers are set in a
horizontal plane never over 2 feet apart (Tr. 27, 28, 30–31); a waler is a
brace placed against a form to steady the form and thereby prevent waves or
wrinkles in the poured concrete (Tr. 24). In effect it holds the wood forms
together (Tr. 24, 25). Clamps to the walers are held with ties (Tr. 25). Lasson
and Schwandt were putting clamps on tie rods which would go through and attach
to walers on each each side of the wall (Tr. 27). At the time of the accident
Schwandt and Lasson were working on the second from the top waler and Lasson’s
head was about 4 to 5 feet from the top of the wall (Tr. 28). Schwandt thought
the wall was 12 feet high on the outside which was his side (Tr. 24, 29) and
the distance was greater on the inside due to the underground level of the
building (Tr. 30).
Lasson
fell at approximately 10:40 a.m. (Tr. 15); when observed by Schwandt after the
fall Lasson was not wearing a safety belt (Tr. 16–17) nor was there one
attached to where he had been working (Tr. 16). Lasson fell to the concrete on
the bottom level, which was a distance of 15 to 18 feet (Tr. 26, 30, 40).
Complainant’s exhibit 2 shows the stairwell into which Lasson fell (Tr. 37,
38). Complainant’s exhibit 4 shows the wall at the time of the accident (Tr.
40); complainant’s exhibit 7 shows the platforms, walers and walls (Tr. 42).
The platform as shown in the photographs was 4′ by 8′ (Tr. 43); and
the top guardrail was about 40″‘ above the platform (Tr. 43 44). In the
opinion of the compliance officer it would be possible to string a safety line
and attach belts to it (Tr. 45) or the alternative run a line to the top and
attach it to the vertical rebars (Tr. 45).
As
to the issue of penalties the parties stipulated that the proposed mandatory
penalty from the compliance manual is $1,000 (Tr. 48–49, 52) and that the
respondent was allowed 10% for good faith, because he had a good but not
effective safety program. Further, respondent was allowed 20% for history and
full credit for size. The net proposed penalty was $600 (Tr. 48–49, 52–53). The
compliance officer’s guidelines was received in evidence by stipulation of the
parties (Tr. 50–51; compl’s. ex. 16).
RESPONDENT’S
EVIDENCE
Respondent’s
office manager indicated that at the beginning of each construction project
they send out a safety manual with guidelines, procedures and instructions (Tr.
57, 58–59). Five safety belts together with ladders were furnished for this job
(Tr. 58, 63). The type of construction undertaken at this worksite was similar
to that used on many projects and climbing on walers is an unusual procedure
(Tr. 60, 61).
Respondent’s
foreman indicated that they have safety meetings every two weeks of about five
minutes duration and the men are instructed to use scaffolds, step ladders, or
safety belts (Tr. 63, 70). The superintendent saw Lasson about 10 a.m., at
which time he was standing on the platform above the stairwell (Tr. 64). It is
the function of the superintendent to see that the job is done safely and
according to the blueprints (Tr. 65). The superintendent did not know where
Lasson was standing when he fell, but he fell some 16 feet (Tr. 65–66). The
framework extended some 12 feet above the platform (Tr. 66). The top railing on
the platform was 3′6″‘ and the top rail was a 2 x 6 (Tr. 68). From
his inspection after the accident the superintendent determined that the work
being done was at a point about 8 feet above the platform (Tr. 68–69), but this
was an assumption; the last clamp was 8 feet above the platform (Tr. 69, 72).
He had not seen Lasson standing on any of the walers.
Witness
Merrill, a carpenter for the respondent offered extensive evidence showing the
relative position of the area under discussion (Tr. 74–82; respondent’s exhibit
A). Cross examination of employee Merrill involved a prior statement which was
read by complainant’s counsel; the reading thereof was objected to by
respondent’s counsel on the basis that he was not given a copy there in advance
in accordance with his interrogatories citing 4 Moore’s Practice 26.65. After
Lasson was removed Merrill did not observe any ladder (Tr. 88–89, 91). Merrill
was situated on a wall and he could see Lasson’s head and the wall from which
he was observing Lasson was 10 feet high and Lasson’s head was 8 or 8 1/2 feet
from the platform (Tr. 94). There were no broken boards in the area (Tr. 96).
Rebuttal
evidence indicated that the guardrails in complainant’s exhibit 7 were not
there on the day of the accident (Tr. 98, 99); in reply thereto respondent’s
evidence indicated that only the bottom part of the guardrail, i.e., the
portion 2 feet from the bottom of the platform was there on the day of the
accident (Tr. 101).
ISSUES
1.
Was respondent’s counsel entitled to a prior copy of a statement taken from
witness Merrill as evidenced by complainant’s exhibit 17?
2.
Respondent contends that complainant has failed to prove by a preponderance of
the evidence that a dangerous or hazardous condition existed at the
construction site (conclusions of law number 1).
3.
Respondent contends that complainant has failed to prove by a preponderance of
the evidence that a safety belt was required to be used by the deceased at the
time he fell from the platform or that a safety belt is required under the
provisions of the Act (conclusion of law number 2).
4.
Respondent contends that it has not violated any of the provisions of the Act
and is entitled to a dismissal therefrom.
5.
Respondent contends in his motion to dismiss that there was a lack of knowledge
on the part of respondent as required by 29 USC 666(j) (Tr. 52–53, 109).
6.
What penalty, if any, is appropriate in the event a violation of the standard
is established?
DISCUSSION
Respondent’s
complaint on the failure of complainant to furnish a list of witnesses known to
complainant (Tr. 103–109) was cured by a post-trial order directing complainant
to divulge the names of all witnesses known to complainant. Respondent was
advised of the witnesses and was further granted an opportunity to reopen the
hearing. No such reopening having been sought the issue heretofore raised as to
the production of names and addresses of witnesses known to the complainant is
deemed to be moot.
As
to the complainant’s failure to furnish a copy of the statement of witness
Merrill: Respondent previously sought to submit a number of interrogatories to
complainant. Interrogatory number 4 states as follows:
State
the name and address of each person who has furnished a statement to
complainant pursuant to an inspection of the casualty of the alleged violation
herein.
(a)
Will complainant furnish a copy of said statements, and if so kindly attach a
copy to complainant’s answer to these interrogatories.
On
August 28, 1973 Judge Charles K. Chaplin denied respondent’s motion for leave
to submit interrogatories. In again ruling on interrogatory 4 the undersigned
Judge denied the above interrogatory (Order, December 20, 1973).
Respondent
relies on 4 Moore’s Federal Practice 26.65 claiming that he was entitled
to a prior copy of witness Merrill’s statement. This issue might readily be
disposed of by Review Commission Rule 53 which states as follows:
(a)
Except by special order of the Commission or the Judge, discovery depositions
of parties, intervenors, or witnesses, and interrogatories directed to parties,
intervenors, or witnesses shall not allowed.
However,
the issue having been squarely raised it is this Judge’s view that respondent
is not entitled to a copy of the statement of witness Merrill prior to trial.
As the outset we note that witness Merrill is not a party to this litigation
nor is he a corporate officer of the respondent. Under Rule 34 of the Federal Rules
of Civil Procedure it is now apparent that a party to litigation can obtain a
copy of his own statement. This is clearly within the scope of the Federal
Rules and adopted in many states by court rule and state statutes. While the
‘good cause’ requirement in Rule 34 was eliminated in the amendment effective
in 1970 it still remains the duty of a movant to show by motion or supporting
affadavit that there is a substantial need and the inability to obtain the
equivalent by other means (Almaguer v. Chicago, R. I. & P. R. Co. D.
C. Neb. 1972, 55 F. R. D. 147). Merrill was at the time of trial an employee of
Respondent (Tr. 74–98). Further, a casual reading of the testimony indicates
that respondent was not in any way prejudiced by the failure of complainant to
furnish a copy of the statement prior to trial (Tr. 87–90). Respondent’s
contention is denied.
Respondent’s
second contention that complainant failed to prove that there was a dangerous
or hazardous condition at this worksite is without merit. Employee Lasson was
not wearing a safety belt at the time of the accident nor was there one
attached to where he had been working (Tr. 16–17). The respondent’s
superintendent testified Lasson and Schwandt were working at a point about 8
feet above the platform (Tr. 68–69, 72). The work had been going on at this
point (Tr. 68–69); he was able to tell this from where the clamp was located
(Tr. 69). The only conclusion that can be reached in the absence of a step
ladder is that the deceased Lasson was standing on a whaler above the platform
adjusting the tie with employee Schwandt who was on the other side of the 8
inch wall. Working in such a manner involved an obviously dangerous situation.
Respondent’s
third contention that a safety belt is not required either under the facts or
provisions of the standard is denied. The transcript indicates that five safety
belts were furnished (Tr. 58) and the workmen were instructed to use a
scaffold, safety belt or step ladder (Tr. 63, 70). Employee Schwandt was not
wearing them on the date of this accident and he would have fallen a distance
of 10 or 12 feet (Tr. 17) and when working on a whaler Schwandt used a safety
belt most of the time (Tr. 21). The record indicates that the employees on the
job and the supervisory personnel on the job including the superintendent and
the office manager had no difficulty determing that safety belts should be
used. Respondent’s contention that safety belts are not required under the act
was disposed of in two recent Court of Appeals cases relating to personal
protective equipment, Namely McLean Trucking Company v. Occupational Safety
and Health Review Commission, DOCKET No. 73–2392 decided by the U. S. Court
of Appeals for the 4th Circuit on September 4, 1974 —— F.2d ——. Also to like
effect see the case of Ryder Truck Lines, Inc. v. Brennan, Secretary of
Labor 497 F.2d 230. Both of the cited cases uphold the protective equipment
standard, specifically they relate to protective shoes but the reasoning
therein is equally applicable to the facts in the instant case.
The
respondent’s contention that it has not violated any of the provisions of the
Act is denied for the reasons heretofore discussed.
Respondent
further contended that there is a lack of knowledge on its part and by virtue
of 29 USC 666(j) complainant’s case should be dismissed.
29
USC 666(j) provides as follows:
‘(j)
For purpose of this section, a serious violation shall be deemed to exist in a
place of employment if there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been adopted or
are in use, in such place of employment unless the employer did not, and could
not with the exercise of reasonable diligence, know of the presence of the
violation.’
A
fair reading of the evidence in this case indicates that respondent did not, in
fact, know of this violation. However, the evidence indicates that the
respondent could have known of the violation. Lasson fell at approximately
10:40 a.m. (Tr. 15). The superintendent had been on the worksite frequently
(Tr. 63–64) and last saw Lasson about 10 a.m. (Tr. 64). It is the
superintendent’s function to see that the job is going safely and according to
blueprints (Tr. 65). The superintendent knew that the work was progressing
upward (Tr. 69). The record is totally devoid of any indication of safety
instructions or directives to employee Lasson or the supervision of him after
the commencement of this two day job. The study of the blueprints coupled with
the knowledge of the activity being undertaken and the time interval involved
indicate that there was sufficient time for respondent to realize that a
violation could occur. Lasson was not wearing a seat belt when he was working
with Schwandt on Lasson’s side of the wall (Tr. 16). There is a time interval
of ten or fifteen minutes (Tr. 21–22). Once a condition is shown to have
existed (lack of safety belt) the legal presumption is that such a condition
existed until the fall occurred. There are sufficient facts indicating that
respondent should have known of this violation.
The
final issue for determination is what penalty, if any, is appropriate for the
violation of the standard.
The
Review Commission under 17(j) of the Act, now 29 USC 666(i) is required to give
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. In the leading case of Secretary v. Nacirema Operating Company,
Inc. 1 OSAHRC 33 the Commission stated that the criteria provided for in the
Congressional enactment cannot always be given equal weight. It has further
been indicated that the principle factor to be considered in assessing an
appropriate penalty for the violation is the gravity of the offense. In
determining the gravity of violation, several elements must be considered
including but not necessarily limited to the following: (1) the number of
employees exposed to the risk of injury; (2) the duration of the exposure; (3)
the precautions taken against injury, if any; and (4) the probability of the
occurrence of an injury.
In
the instant case one employee was exposed to the risk of injury. The record
fails to show the duration of the exposure in an exact time frame. The
precautions taken against injury included the furnishing of safety belts. A
degree of probability of the occurrence of an injury appears to be moderate.
Giving due consideration of all factors with particular emphasis on the gravity
of the violation a civil penalty of $500 is proper.
FINDINGS
OF FACT
1.
Respondent is an employer subject to the terms and conditions of the
Occupational Safety and Health Act of 1970 having employees and doing business
in several states (Tr. 5).
2.
Respondent had 9 employees on the construction site in question and 65 on all
projects (Tr. 5).
3.
Employee Lasson was not wearing a safety belt when he was placing rods through
walers on a concrete wall (Tr. 16, 17, 27).
4.
Lasson was working standing on a waler eight foot above a wooden platform when
he fell from that point approximately 16 feet (Tr. 30, 65, 66, 68 69).
5.
Lasson died as a result of the fall (Tr. 9).
6.
It was not shown for how long Lasson was exposed to a fall (Totality of Record)
7.
Respondent had safety belts available and also furnished ladders at the jobsite
(Tr. 58).
8.
Respondent conducted safety meetings every two weeks (Tr. 63, 70).
9.
The proceedings did not show a history of previous violations (Totality of the
Record).
CONCLUSIONS
OF LAW
1.
Respondent is, and was at all times, relevant to the issues herein engaged in a
business affecting commerce within the meaning of 29 USC 652 being the
Occupational Safety and Health Act of 1970. (Facts 1, 2).
2.
Respondent is and was at all times mentioned, an employer within the meaning of
29 USC 652(5) and subject to the provisions thereof and the standards
promulgated under 29 USC 655 (Facts 1, 2).
3.
Respondent violated 29 CFR 1926.28(a) and citation number 1 should be affirmed
(Facts 3, 4).
4.
The proposed civil penalty of $600 for the violation should be vacated and a
penalty of $500 should a assessed in lieu thereof.
ORDER
Based
on the foregoing findings of act and conclusions of law it is hereby ADJUDGED
and ORDERED:
1.
Citation number 1 for the alleged serious violation of 29 CFR 1926.28(a) is
affirmed.
2.
The proposed civil penalty of $600 for the violation established in the
preceding paragraph is vacated and a civil penalty of $500 is established in
lieu thereof.
So
ORDERED in the city and county of Denver, Colorado.
John J. Morris
Judge, OSAHRC
October 18, 1974
[1]
This
standard requires as follows:
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.
[2] The judge also concluded that Labor was not required to furnish prior to trial a copy of a written statement given by one of Respondent’s employees to Labor’s inspector. We agree with the judge’s ruling for the reasons he assigns. Moreover, Respondent did not take exception to the ruling in its post-trial submissions to the judge and it has not argued the issue before us on review. We also note that the employee was called as a witness, his statement was read into the record, and it was made available to Respondent’s counsel for his examination of the witness. Accordingly, the requirements of the ‘Jencks rule’ have been satisfied. See, e.g., Great Lakes Airlines, Inc. v. CAB, 291 F.2d 254, 363–65 (9th Cir.), cert. denied, 368 U.S. 890 (1961); NLRB v. Adhesive Products Corp., 258 F.2d 403, 408 (2d Cir. 1958); Frazee Construction Co., 4 OSAHRC 188, BNA 1 OSHC 1270, CCH E.S.H.G. para. 16,409 (1973).
[3] We have said that we will
not disturb judges’ decisions founded on credibility determinations. Paul L.
Heath Contracting Co., BNA 3 OSHC 1550, CCH E.S.H.G. para. 20,006 (1975); Northeast
Stevedoring Co., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH E.S.H.G. para. 19,001
(1974).
[4] While Commissioner Cleary concurs, he also adds that
in his view in order to prove a serious violation Labor need not establish as
part of its prima facie case that Respondent knew or could reasonably have
known of the presence of the violation. Rather, lack of knowledge is an
affirmative defense to be raised and proven by Respondent. See his dissenting
opinion in D. R. Johnson Lumber Co., 17 OSAHRC 426, BNA 3 OSHC 1124, CCH
E.S.H.G. para. 19,695 (1975). See also Atlas Roofing Co. v. OSHRC, 518
F.2d 990, 1013 (5th Cir. 1975).