UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15450 |
|
STRUCTURAL
PAINTING CORPORATION, |
|
|
Respondent. |
|
August 17, 1979
DECISION
Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
CLEARY, Chairman:
A citation
issued to respondent on October 9, 1975, alleged that respondent, Structural
Painting Corporation, committed a serious violation of the Act[1] by failing to comply with
the standard at 29 CFR § 1926.104(b).[2] A penalty of $600 was
proposed. At the hearing on April 20, 1976, the Secretary of Labor moved to
amend the citation to allege a failure to comply with the standard at 29 CFR §
1926.28(a).[3]
Administrative Law Judge Abraham Gold granted the motion over respondent’s
objection. However, in his opinion, Judge Gold amended the citation to allege
noncompliance with a third standard, 29 CFR § 1926.105(a).[4] The factual allegations
made in support of the claim against respondent were not altered by either
amendment. The judge affirmed the citation as amended and assessed a $300
penalty. Respondent petitioned for review of the judge’s affirmation of the
citation. Pursuant to section 12(j) of the Act, Commissioner Barnako directed
review on two issues raised in the petition: whether the judge committed reversible
error (1) by granting the Secretary’s motion to amend the citation, and (2) by
amending the citation on his own motion. Former Commissioner Moran also
directed review of the judge’s opinion without specifying which issues should
be addressed. The petition raised a third issue—whether the judge erred by
finding that the use of a safety belt by respondent’s employee would have been
practical. In view of Commissioner Moran’s direction, and because respondent
filed its petition, with supporting argument, after that direction was filed,
this issue will be addressed.[5] See Abbott-Sommer, Inc.,
76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976);
Commission Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976).
Eight
of respondent’s employees, including a foreman, were sandblasting and painting
the structural steel on a bridge over the Mohawk River at Crescent, New York,
when the worksite was inspected on October 2, 1975. The road surface on the
bridge is 28 to 30 feet above the river. One of respondent’s employees was
working at one end of the bridge from a one-foot wide structural beam located
six feet below the road surface. He was not wearing a safety belt.[6] The foreman testified that
the unprotected employee should have been wearing a safety belt and that a
second employee standing on the opposite end of the same beam and performing
the same work as the unprotected employee was wearing a safety belt that was
tied-off. The record is not developed sufficiently to permit us to decide what
the belt was tied to, but we note that the compliance officer gave unrebutted
testimony that the unprotected employee could have tied a lanyard to a
structural member of the bridge or to the bridge railing. Upon being informed
by the compliance officer that an employee was not protected against a fall,
the foreman obtained a lifeline and belt and directed the employee to use them.
Therefore, the judge correctly found that it would have been practical for the
unprotected employee to have used a safety belt.
Respondent
claims that the amendment to § 1926.28(a) was improper because a defense had
been prepared only with respect to § 1926.104(b). We disagree. Motions to amend
should be granted freely if the non-moving party will not be prejudiced in preparing
or presenting his case. See, e.g., Southern Colorado Prestress Company v.
OSHRC, 586 F.2d 1342, 1346–1347 (10th Cir. 1978); John & Ray Carlstrom,
d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 4 BNA OSHC 2101, 1978
CCH OSHD ¶23,155 (No. 13502, 1978). Respondent has neither produced evidence
nor advanced argument in support of the claim of prejudice; nor did respondent
request a continuance to prepare a new defense. Moreover, we are not persuaded
that respondent failed to receive fair notice of the thrust of the Secretary’s
claim. As stated above, the Secretary did not alter the factual basis of his
claim. The allegation made in the citation is identical to that made in the
complaint, which states, in pertinent part, ‘. . . that an employee sandblasting
the steel 38 feet above the river (Mohawk) was not wearing a life line and
belt.’ This alone provided sufficient notice. See International Ladies’
Garment Workers’ Union v. Donnelly G. Co., 121 F.2d 561, 563 (8th Cir.
1941). Finally, because no fall protection was used, any defense respondent may
have raised under § 1926.104(b) would be equally applicable to § 1926.28(a).
The amendment was, therefore, proper under Fed. R. Civ. P. 15(a).
Any
confusion[7] could have been dispelled
by respondent’s foreman, to whom the compliance officer clearly specified the
nature of the hazard. Knowledge of the nature of the charge obtained by an
employer’s representative during an inspection is imputable to the employer.[8]
Respondent
also contends that the amendment to § 1926.28(a) was improper because it
amounted to the issuance of a new citation outside the six month limitation
period contained in section 9(c) of the Act. While the amendment was made more
than six months after the inspection, it is obvious from the preceding
paragraphs that the amendment did not raise a new charge. Amendments to claims
that arise out of conduct set forth in the original pleadings relate back to
the date of those pleadings. Fed. R. Civ. P. 15(c); Southern Colorado
Prestress Company v. OSHRC, supra, at 1346–1347. The judge properly applied
this rule in rejecting respondent’s contention.
The
citation should not have been amended further. The judge amended the citation
to allege noncompliance with § 1926.105(a). Because § 1926.28(a) does not
specifically require the use of safety belts he held that § 1926.105(a) was the
more specifically applicable standard. He also noted that the Ninth Circuit
held § 1926.28(a) to be void for vagueness. Hoffman Construction Co. v.
OSAHRC, 546 F.2d 281 (9th Cir. 1976). Subsequent to the judge’s decision,
however, the Commission reaffirmed its long-held position that § 1926.28(a) is
not impermissibly vague, and, therefore, respectfully disagreed with the Ninth
Circuit’s decision. B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA
OSHC 1265, 1977–78 CCH OSHD ¶ 21,747 (No. 9985, 1977), rev’d. on other
grounds, 583 F.2d 1364 (5th Cir. 1978). Commission precedent is, of course,
controlling unless reversed by the Supreme Court. See Grossman Steel &
Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD ¶20,691
(No. 12775, 1976).
Also,
we decided recently that § 1926.105(a) is not more specifically applicable to
fall hazards than is § 1926.28(a), regardless of the distance of the potential
fall, unless use of safety belts is impractical. Section 1926.105(a) requires
that safety nets be provided where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines or safety belts is impractical. The
application of the standard is conditional. This standard is not more
specifically applicable than a standard requiring the use of one of the other
enumerated safety devices in the first instance. S & H Riggers and
Erectors, Inc., No. 15855 (April 13, 1979). The practicality of the use of
a safety belt by respondent’s unprotected employee is established on this
record. Moreover, the terms of § 1926.105(a) are applicable only if an employee
could fall 25 feet or more. As noted above, the unprotected employee was
working only 22 to 24 feet above the Mohawk River. Section 1926.105(a) is,
therefore, inapplicable in this proceeding.
The
only remaining question is whether respondent failed to comply with §
1926.28(a). An employer is not in compliance with § 1926.28(a) if an employee
not wearing a safety belt is exposed to a condition that a reasonable person
familiar with the condition would recognize as a fall hazard warranting the use
of a safety belt. S & H Riggers and Erectors, supra. It is
undisputed that one of respondent’s employees was working more than twenty feet
above the Mohawk River without wearing a safety belt. Recognition of the hazard
and the need for using a safety belt when exposed to such a hazard are
established by respondent’s foreman’s testimony that the unprotected employee
should have been wearing a safety belt, and that another employee who was
working under the same conditions as the unprotected employee was wearing a
tied-off safety belt. We don’t rely solely on recognition of the foreman,
however. We conclude that a reasonable person would recognize a hazard
requiring the use of personal protective equipment under the circumstances of
this case, and that respondent failed to comply with § 1926.28(a).
Accordingly,
the citation, as amended to allege serious failure to comply with the standard
at 29 CFR § 1926.28(a), and the $300 penalty assessed by the judge are
affirmed.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: AUG 17, 1979
BARNAKO, Commissioner, Concurring:
I
agree with the majority that amendment to charge a violation of 29 C.F.R. §
1926.28(a) was proper pursuant to Fed. R. Civ. P. 15(a), that 29 C.F.R. §
1920.105(a) is not applicable to the cited conditions and that Structural
Painting violated 29 C.F.R. § 1926.28(a). However, my rationale for concluding
that Structural Painting violated 29 C.F.R. § 1926.28(a) differs from that of
my colleagues.
In S
& H Riggers and Erectors, Inc., ___ OSAHRC ___, 7 BNA OSHC 1260, 1979
CCH OSHD ¶23,480 (No. 15855, 1979) (concurring opinion), I stated that I would
affirm a citation for violation of 29 C.F.R. § 1926.28(a) only if the following
conditions were met: 1) evidence of record establishes Respondent’s employees
were exposed to a hazard which a reasonable person familiar with the industry
would recognize as requiring the use of personal protective equipment, 2) the
Secretary establishes a feasible means of protecting against the cited hazard
and 3) reference to other standards in Part 1926 indicates the need for using
the personal protective equipment which the Secretary asserts Respondent’s
employees should have used.
Structural
Painting was cited for a violation of 29 C.F.R. § 1926.28(a) because its
employees were not wearing safety belts while sandblasting and painting the
structural steel on a bridge. With respect to the first criteria set forth
above, as my colleagues note, the evidence establishes that Structural
Painting’s employees were exposed to a fall hazard and that a reasonable person
would recognize a hazard requiring the use of personal protective equipment.
The second criteria noted above regarding a feasible means of abatement was
established through the unrebutted testimony of the compliance officer that
safety belts should have been used and could have been tied to structural
members of the bridge. Additionally, Structural Painting’s foreman obtained a safety
belt while the compliance officer was on the site and directed one of the
employees on the bridge to use it, which creates a strong presumption that such
use was feasible. Finally, as I stated in S & H Riggers and Erectors,
Inc., 29 C.F.R. § 1926.104 places employers on notice that lifelines,
lanyards, and safety belts are an appropriate means of protecting against fall
hazards and therefore satisfies the third criteria set forth above.
Accordingly, since the criteria I set forth in S & H Riggers and Erectors,
Inc. have been satisfied, I would affirm the citation for violation of 29
C.F.R. § 1926.28(a).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15450 |
|
STRUCTURAL
PAINTING CORPORATION, |
|
|
Respondent. |
|
December 6, 1976
APPEARANCES:
James A. Magenheimer, Esq., for
Complainant
John F. Ganley, Jr., pro se, for
Respondent
DECISION AND ORDER
This
case arose under Section 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. § 659(c), and was heard on April 20, 1976, at Albany, New York.
On
October 9, 1975, Respondent was issued nonserious Citation No. 1, containing
three items, and serious Citation No. 2 which charged a single violation. A
penalty of $45 was proposed by the Secretary of Labor for nonserious Item 1,
$65 for Item 2, and $135 for the third item. The Secretary recommended $600 for
the serious charge. Respondent filed a notice of intent to contest all charges
and proposed penalties, but at trial withdrew his contest as to cited Items 2
and 3, but continued his contest as to nonserious Item 1 and the serious
citation, as well as all proposed penalties (Tr. 6).
By
failing to deny paragraphs II and III of the complaint, as amended at trial
(Tr. 72), Respondent is deemed to have admitted[9] that it was incorporated
in the State of New York, with an office and place of business at Latham, New
York, where at all times pertinent herein it was engaged in sandblasting and
painting activities; that many of the materials and supplies used by Respondent
were manufactured outside the State of New York; and that Respondent was and is
engaged in a business affecting commerce, within the meaning of Sections 3(3)
and 3 (5) of the Act. In light of the foregoing, it is concluded that
jurisdiction over the parties and the subject matter is vested in the
Commission.
29
U.S.C. § 654(a)(2) requires that each employer comply with occupational safety
and health standards promulgated under the Act.
Pursuant
to 29 U.S.C. § 666(b), an employer shall be assessed a civil penalty of up to
$1,000 for each serious violation.
Section
666(c) provides that an employer may be assessed a civil penalty of up to
$1,000 for each nonserious violation.
29
U.S.C. § 666(j) declares that
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 that 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.
Civil penalties shall be imposed only after
considering the size of the business of the employer, the gravity of the
violation, good faith of the employer, and history of previous violations. 29
U.S.C. § 666(i).
On
October 2, 1975, a compliance officer of the Department of Labor inspected the
Twin Bridges at Crescent, New York (Tr. 16) spanning the Mohawk River and Canal
(Tr. 18), about 300–400 feet wide at that point (Tr. 17). One bridge carries
northbound traffic, the other southbound (Tr. 17). Respondent was sandblasting
and repainting structural steel members of the southbound bridge (Tr. 16–17,
19), and had eight employees, including a foreman, working at the site (Tr. 18,
19, 20).
Nonserious
Item 1 alleges a violation of 29 C.F.R. § 1926.106(d), which requires:
§ 1926.106 Working over or near water.
(d) At least one lifesaving skiff shall be
immediately available at locations where employees are working over or adjacent
to water.
The
compliance officer observed an employee of Respondent engaged in sandblasting
the structural members on the side of the bridge (Tr. 21). He thought that the
employee was working from a platform suspended from the bridge rail, the
employee’s head at about the level of the road surface (Tr. 21). The officer
said that the platform is commonly referred to as a ‘painter’s pick’ (Tr. 27).
The foreman testified that this employee was actually standing on a beam of the
bridge, and not on a pick (Tr. 57, 58); that if he had been on a pick the
officer would not have been able to see the employee from the surface of the
bridge (Tr. 61). I accept the foreman’s statement on this point.
According
to the inspecting officer the bridge was 38 feet above the water, a figure
which he claimed to have gotten from a map provided by architects and engineers
who were supervising the reconstruction of the bridge (Tr. 22). The foreman
asserted that he measured the distance last fall, and again on the morning of
the hearing; that it measured 28 feet the first time and 30 feet the second;
that the difference was due to the variation in water level (Tr. 60). I regard
the foreman’s measurements as having greater probative value than the
inspector’s calculation.
On
the day of the inspection Respondent had a skiff (light rowboat) in the
equipment trailer on the bridge deck. The inspector described it as a 14-foot
aluminum boat. He testified that if an employee fell from the bridge into the
water, two men would have to be rounded up to carry the skiff from the trailer,
and either throw it over the side of the bridge into the water, or put it on a
pickup truck to be driven off the bridge; that it would consume 10 minutes;
that there is a very strong current in the area, and a person falling into the
water could be 200–300 feet downstream in a few minutes (Tr. 23–25, 32–33,
47–48); and that unless someone were in the skiff to guide it to the fallen
employee in the water the boat might drift away (Tr. 49).
Respondent’s
foreman testified that it was his normal procedure each morning, within the
first hour after arrival at the jobsite, to take one man with him to put the
boat in the water at the shore line; but that on the day of the inspection it
was overcast and foggy, the start of work was delayed, there was quite a bit of
confusion, and he forgot to follow this procedure (Tr. 56, 62, 63). The
inspector’s testimony is to the effect that the foreman told him that the skiff
was kept in the trailer rather than on the river bank was because boats had
been stolen at other sites; that when the inspector suggested that the boat be
kept in a pickup truck parked at the river’s edge, the foreman thought that it
was a good suggestion and adopted this procedure (Tr. 33). On this point I rely
on the inspector’s version.
I
find that the record establishes that on October 2, 1975, Respondent failed to
have a lifesaving skiff immediately available at the locations where employees
were working over water and that nonserious Item 1 has been established.
The
Secretary recommended a penalty of $45 for Item 1. The violation, in my view,
is of a high level of gravity, but the likelihood of an accident is low.
Respondent has 18 employees (Tr. 36). There is no evidence of previous
violations (Tr. 36). Respondent has no formal safety program, but does have
published safety policies (Ex. R–1), and provides safety equipment for its
employees (Tr. 62). Considering the criteria in 29 U.S.C. § 666(i), it is found
that a penalty of $45 is appropriate.
With
respect to nonserious Item 2, only the amount of penalty was contested.
Respondent conceded a violation of Section 1926.106(c) for failure to provide
ring buoys with at least 90 feet of line. Considering the four factors listed
in Section 666(i), it is found that $65 is a reasonable penalty.
Taking
the same criteria into account, I find that Respondent’s violation of
1926.106(a) for failure to provide U.S. Coast Guard-approved life jackets or
buoyant work vests merits a penalty of $135.
The
serious charge, which was contested by Respondent, originally claimed that
Respondent was in violation of Section 1926.104(b) because an employee
sandblasting 38 feet above the Mohawk River ‘was not wearing a life line and
belt.’ That cited regulation states:
§ 1926.104 Safety belts, lifelines, and
lanyards.
(b) Lifelines 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.
At
trial the Secretary moved to amend the citation and complaint (Tr. 8–10) to
substitute the charge of Section 1926.28(a), based on the same factual
allegations. The motion was granted (Tr. 12). Since the factual basis remained
the same, Respondent was not in this instance prejudiced in his ability to
prepare and present a defense. Respondent complained that the new charge was
lodged over six months after the inspection (Tr. 13). However, this time lapse
is no bar to amendment. Respondent has not shown that he was prejudiced in any
manner. Under Fed. R. Civ. P. 15(c) whenever a claim asserted in the amended
pleading arose out of the conduct or occurrence set forth in the original
pleading, the amendment relates back to the date of the original pleading;
hence, the amendment is not proscribed by Section 9(c) of the Act, 29 U.S.C. §
658(c), which forbids the issuance of a citation after the expiration of six
months following the occurrence of any violation.
Section 1926.28(a) reads:
§ 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.
This
charge is based on the fact that the employee who was sandblasting while
standing on a beam was not wearing a safety belt attached to a lifeline (Tr.
22). The inspector felt that a lifeline could have been secured to the bridge
railing or to the bridge structure (Tr. 28). He testified that when he informed
the foreman of the hazard, the foreman told him that the men had been provided
with safety belts and lifelines, and the foreman then went to the equipment
trailer, obtained a belt and lifeline, gave them to the employee, and directed
him to use them (Tr. 28–29). The inspector added that he saw other employees of
Respondent painting the underside of the bridge but could not determine whether
they were wearing safety belts (Tr. 31).
In
his testimony, the foreman said that every man on the job had been issued a
safety belt, but he ‘just couldn’t keep checking everybody’ (Tr. 62); that
another employee, who was sandblasting at the opposite end of the bridge (Tr.
58), was wearing his safety belt (Tr. 61–62). He further stated that the
sandblaster who was not wearing a safety belt stood on a beam which was about
six feet lower than the bridge deck (Tr. 68); that the beam was about a foot
wide (Tr. 59) and open on the outside edge (Tr. 68).
Respondent
also used picks at the site; they were described by the inspector as anywhere
from 12 to 24 feet long, and approximately 30 inches wide, and having no
railing (Tr. 27–28). According to the officer, the employee would be standing
within six inches of the edge of the platform (Tr. 28), which was suspended by
ropes from the bridge railing (Tr. 42). The foreman declared that the picks at
the site were constructed of aluminum, and ranged from 16 to 28 feet in length,
were 30 inches wide, and hung on steel cables or rested on cables which ran
under the bridge from one side of the bridge to the other (Tr. 58).
Section
1926.28(a) contains general wording. It does not specifically require the use
of safety belts. Section 1926.105(a) does specify this protective device.
Section 1910.5(c) provides that when a particular standard is specifically
applicable, it shall prevail over any different general standard which might
otherwise apply. Moreover, since the date of the trial, Section 1926.28(a) has
been ruled ineffective as a standard due to its vagueness. Hoffman
Construction Co. v. OSHRC and Secretary of Labor, No. 75–1741, 9 Cir.,
decided November 1, 1976. The Court reversed the Commission, holding that
1926.28(a) ‘created no specific standard, a violation of which would give rise
to liability.’
29
C.F.R. § 1926.105(a), which in my view applies specifically to the facts in the
instant case, declares:
§ 1926.105 Safety nets.
(a) Safety nets shall be provided when
workplaces are more than 25 feet above the ground or water surface, or other
surfaces where the use of ladders, scaffolds, catch platforms, temporary
floors, safety lines, or safety belts is impractical.
This
poorly worded regulation has been interpreted judicially as requiring an
employer to utilize one of the safety devices listed herein. Secretary of Labor
v. Fiegen, 513 F. 2d 713 (8 Cir. 1975). Secretary of Labor v. Southern
Contractors Service, 492 F. 2d 498, 501 (5 Cir. 1974). Secretary of
Labor v. The Verne-Woodrow Company, 494 F. 2d 1181 (5 Cir. 1974. Secretary
of Labor v. J.W. Bounds (Pearl Steel Construction Co.), 488 F. 2d 337 (5
Cir. 1973).
Although
Respondent was not charged with a violation of 1926.105(a), Respondent was
fully apprised of the factual issues and defended fully against them. Pursuant
to Fed. R. Civ. P. 15(b), the pleadings are hereby amended to conform to the
evidence, and the serious citation and complaint are therefore amended to
charge a violation of 29 C.F.R. § 1926.105(a), in substitution for Section
1926.28(a).
The
standard now cited in the serious charge requires safety nets if the use of
other listed protective devices is ‘impractical.’ Inasmuch as at least one
employee of Respondent was using a safety belt and lifeline it is beyond
dispute that such safety equipment was practical at the time and place under
consideration.
Since
an employee of Respondent was working more than 25 feet above water surface and
Respondent failed to see to it that this employee was wearing a safety belt
attached to a lifeline, and the employee was not protected by any of the other
protective measures listed in Section 1926.105(a), it is found that on October
2, 1975, Respondent was not in compliance with that standard. I conclude that
on that date Respondent violated 29 U.S.C. § 654(a)(2).
It is
also found that there was a substantial probability that death or serious
physical harm could have resulted from a fall caused by this safety violation,
and that Respondent, through its foreman at the site, knew or with the exercise
of reasonable diligence could have known of the violative condition. On this
record it is concluded that the violation was of a serious nature, within the
contemplation of 29 U.S.C. § 666(j).
The
violation was of a high level of gravity, but in my opinion the likelihood of a
fall was rather low. Considering the four factors in 29 U.S.C. § 666(i), I find
that a penalty of $300 is appropriate.
Accordingly,
it is ordered that the three items in nonserious Citation No. 1 and serious
Citation No. 2, as amended, be affirmed; that the penalties proposed for the
three nonserious items be affirmed and that a penalty of $300 be assessed for
amended serious Citation No. 2.
ABRAHAM GOLD
Judge, OSHRC
Dated: December 6, 1976
Boston, Massachusetts
[1] The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
[2] The standard
provides:
Lifelines 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.
[3] The standard
provides:
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.
[4] The standard
provides:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
[5] Respondent has not taken exception to the judge’s characterization of the violation or to the $300 penalty assessed for the violation, except to the extent that both would be improper if the citation were vacated.
[6] The compliance officer and respondent’s foreman disagreed over the height of the bridge and the location of the work station of the unprotected employee. The judge credited the testimony of the foreman. The Commission usually defers to a judge’s credibility findings. See Paul L. Heath Contracting Company, 75 OSAHRC 84/B2, 3 BNA OSHC 1551, 1975–76 CCH OSHD ¶ 20,006 (No. 5467, 1975). We have no reason to reject the judge’s finding in this case.
[7] We find little cause for respondent to have been confused. The standard at 29 CFR § 1926.104(b) on its face does not require the use of life lines and belts, it merely specifies certain conditions of use. Underhill Construction Corp., 76 OSAHRC 130/B7, 4 BNA OSHC 1772, 1976–77 CCH OSHD ¶21, 151 (No. 8096, 1976).
[8] Jerry Botchlet
Masonry Construction Company, 77 OSAHRC 95/C3, 5 BNA OSHC 1506,
1977–78 CCH OSHD ¶ 21,858 (No. 13135, 1977) appeal dismissed, No.
77–1579 (10th Cir., July 26, 1977), appeal withdrawn, No. 77–2518 (5th
Cir., August 18, 1977), does not hold to the contrary. In that case, a divided
Commission held that the Secretary did not sustain his burden of proving that
the employer had knowledge of a violation by proving that the employer’s
walkaround representative had obtained knowledge of the violation during the
inspection. The Commission reasoned that a contrary holding would tend to deter
an employer from exercising the right (provided by section 8(e) of the Act) to
be represented during an inspection. The knowledge of the nature of the charge
imputed to respondent in this case is not the same as knowledge of a hazardous
condition which violates the Act. Where such knowledge is used to establish
culpability the latter is forbidden by the Botchlet case. Former
Commissioner Moran identified additional benefits of section 8(e) relevant
here:
The employer’s presence during the
inspection makes possible better and more accurate identification of the
transgressions with which he may be charged. This will assist him to abate them
is needed as well as permit him to adequately prepare his defense if a
citation is issued which he chooses to contest [emphasis added].
Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 1 BNA OSHC 1086, 1971–73 CCH OSHD ¶ 15,416 (No. 224, 1973), aff’d 535 F.2d 371 (7th Cir. 1976).
[9]
Commission Rule 33(b)(2), 29 C.F.R. § 2200.33(b)(2).