UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 3395
OKLAND CONSTRUCTION COMPANY
February 20, 1976
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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) 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. 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, 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 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
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,
OSHRC DOCKET NO. 3395
OKLAND CONSTRUCTION COMPANY
FINAL ORDER DATE: November 18, 1974
DECISION AND ORDER
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.
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 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).
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?
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.
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
October 18, 1974
 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.
 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).
 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).
 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).