UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16235
TURNER WELDING & ERECTION CO., INC.,
Respondent.

June 18, 1980

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COTTINE, Commissioner:

This case is before the Commission for review under 29 U.S.C. § 661(i), § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In the proceedings below the Secretary alleged that the Respondent, Turner Welding and Erection Co., Inc. (‘Turner’), failed to comply with the safety standards published at 29 C.F.R. § 1926.28(a)[1]and 29 C.F.R. 1926.450(a)(9).[2] Administrative Law Judge Jerry W. Mitchell vacated these citation items on the basis that the violative conditions resulted from unpreventable employee misconduct.[3] The Secretary petitioned for review and review was granted.

The citations in issue resulted from a November 17, 1975 inspection of a Turner jobsite located on Interstate Highway 10, N.W., in San Antonio, Texas. Turner, a subcontractor at the site, was responsible for the fabrication and erection of concrete panels forming the base of a building under construction. Turner’s president, Earl Achilles, testified about this method of construction. Panels are lifted by crane and set onto pre-poured pads on the foundation. The panels are not fastened to the pads, but are braced by ‘knee’ jacks in a vertical position. In this process the panels are erected side by side to form the four walls at the base of the building. Thereafter, a concrete floor is poured and the panels are fastened to the foundation. Each panel measures approximately 15 feet wide, 29 feet high, and six-inches thick in its standing position and weighs between 32,000 and 40,000 pounds.

The allegedly violative condition occurred during the alignment stage of the erection process. Alignment is accomplished after the panels are lifted into position. First, the panel at each end of the wall is plumbed straight with a leveling instrument. A member of the work crew then stands on a ladder or platform at one end of the wall and ‘sights’ down the length of the wall. The rest of the crew on the ground adjusts the position of the panels. This procedure is repeated several times until the foreman considers the wall to be straight. Turner had employed this type of panel erection procedure in only five or six of the 800 erection jobs it had performed prior to the hearing in this case.

On the day of the inspection, Turner had five employees at the jobsite, including Mike Castillo, a laborer, and Fred Leal, the foreman. The compliance officer testified that upon arrival at the site he observed Castillo standing unprotected atop the 29 foot-high, six-inch wide wall. He also observed an extension ladder leaning against the wall. The top of the ladder was approximately two rung spaces below the top of the wall. According to Leal, prior to the date of inspection sighting had been either his responsibility or that of Achilles. On this particular occasion, Leal decided to stay on the ground to assist in bracing the panels, and he instructed Castillo to perform the sighting work. Leal testified that he did not give Castillo specific instructions regarding how the job was to be performed and that Castillo had never sighted panels prior to that date. In addition, Leal testified that his attention was concentrated on the bottom of the wall where the crew was bracing the individual panels and that he did not observe Castillo atop the panel until shortly before the compliance officer arrived at the site. However, upon seeing Castillo atop the wall, Leal did not order him to descend, and Castillo did not descend until the compliance officer informed Leal of the alleged violation.

Castillo testified that he used the ladder to gain access to the panel top and that he thought he would be able to sight the panels more accurately by standing above a joint where two panels met. According to his testimony, he was atop the wall for approximately ten minutes, walking back and forth along 20 to 25 feet of its length, alternately standing and squatting.

Turner was cited for failing to require its employee to use personal protective equipment and for failing to provide a ladder that extended not less than 36 inches above the landing, alleged violations of §§ 1926.28(a) and 1926.450(a)(9), respectively. In his May 4, 1977 decision, Judge Mitchell vacated both items, finding that the violations were the result of an ‘isolated occurrence.’ Based upon Leal’s testimony, the judge round that industry practice calls for sighting to be accomplished from a ladder so that the employee’s line of vision is level with the entire length of the panel tops. He reasoned that Turner could not reasonably have expected Castillo to climb atop the panels because Castillo had not been instructed to work on the panel tops and because the job would actually be more difficult to accomplish from that position.

Citation number 2 alleges a serious violation of the Act for noncompliance with § 1926.28(a) in that Turner failed to require the use of personal protective equipment by an employee exposed to a fall of 29 feet. Under Commission precedent, the Secretary has the burden under § 1926.28(a) of establishing the existence of a hazardous condition warranting the use of personal protective equipment and identifying the appropriate form of personal protective equipment. S & H Riggers and Erectors, Inc, 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir. June 7, 1979). In this case, the Secretary met his prima facie burden by establishing that Turner’s employee was exposed to a fall hazard and by identifying safety belts, lanyards, or lifelines as appropriate forms of personal protective equipment. In response, Turner argues that the exposed employee should have been positioned on a ladder and that his failure to use a ladder was violative of company policy. Turner does not argue that Castillo was not exposed to a hazardous condition, nor does Turner challenge the feasibility of the personal protective equipment identified by the Secretary. However, a review of the record, including photographs introduced into evidence by the Secretary that depict the panels in issue, reveals that neither safety lines nor safety belts could have been attached to the wall panels. Where the record indicates that the identified form of personal protective equipment is inappropriate under the cited conditions, the Secretary’s prima facie case has been successfully rebutted. Accordingly, Turner cannot be found in violation of § 1926.28(a).

Turner’s defense that Castillo should have been positioned on a ladder, however, raises the issue of whether Turner was in noncompliance with safety standards requiring the use of a ladder as a method of protection when employees are exposed to fall hazards. The construction safety standard published at 29 C.F.R. § 1926.105(a)[4] requires fall protection to be provided for workers who are exposed to fall hazards of more than 25 feet. A prima facie violation of § 1926.105(a) is established when an employee is exposed to a fall of more than 25 feet and none of the devices listed in § 1926.105(a) are used. S. & H. Riggers, supra, 7 BNA OSHC at 1261 n.7, 1979 CCH OSHD at p. 28,434 n.7, and cases cited therein. A ladder is one of the fall protection devices enumerated in § 1926.105(a). A ladder was available but was not used to prevent employee exposure to the 29 foot fall hazard. Nor was any other method of employee protection used. Accordingly, the evidence of record establishes a prima facie failure to comply with the requirements of § 1926.105(a), and we must determine whether an amendment of the pleadings to conform to the evidence is appropriate.

III

Rule 15(b) of the Federal Rules of Civil Procedure requires amendment of the pleadings when issues not specifically raised by the pleadings are nevertheless tried by the express or implied consent of the parties.[5] The Federal Rules are made applicable to Commission proceedings by 29 C.F.R. § 2000.2(b).[6] It is well settled, in accordance with the Federal Rules, that pleadings before the Commission should be liberally construed and easily amended. Bill C. Carroll Company, ___ OSAHRC ___, 7 BNA OSHC 1806, 1979 CCH OSHD ¶ 23,940 (No. 76–2748, 1979); Rogers Manufacturing Co., ___ OSAHRC ___, 7 BNA OSHC 1617, 1979 CCH OSHD ¶ 23,800 (No. 76–896, 1979); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2nd Cir. 1977); see generally National Realty Corp. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973). Because neither party in this case expressly consented to try an alleged violation of § 1926.105(a), the appropriate inquiry is whether the parties impliedly consented to try the charge.[7] See Bill C. Carroll Company, supra; Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 5 BNA OSHC 1180, 1977–78 CCH OSHD ¶21,692 (No. 3685, 1977), appeal dismissed, No. 77–2280 (9th Cir. June 12, 1978).

Where, as here, an amendment changes the legal theory, consent will be implied whenever the cited employer has not objected to the introduction of evidence relevant to the unpleaded charge and prejudice would not result from the amendment. Rogers Manufacturing, supra; John & Roy Garlstrom d/b/a Carlstrom Brothers Construction, 7. OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD ¶ 23, 155 (No. 13502, 1978). Prejudice is determined on the basis of whether the employer had a fair opportunity to defend against the Secretary’s evidentiary case and whether the employer could have offered any additional evidence if the case had been tried under the amended charge.[8] Rogers Manufacturing Co., supra; John & Roy Carlstrom, supra.

In the instant case, the testimony of the compliance officer and of Turner’s employees focused on the factual allegation that Turner’s employee was exposed to a fall hazard of 29 feet, was unprotected at that height, and under company policy should have remained on the ladder. Turner did not object to any evidence in support of that allegation and did not attempt to refute it. Rather, Turner admitted its employee was exposed to a fall hazard, introduced the issue concerning the use of a ladder, but sought to be relieved of liability by adducing other evidence that would support the affirmative defense of unpreventable employee misconduct. In addition, no other defenses are available to Turner with respect to the merits of the amended charge. It would be anomalous for Turner to rely on either a ‘greater hazard’ or ‘impossibility of compliance’ defense because Turner’s basic contention is that the exposed employee should have been positioned on a ladder to begin with. Turner’s ‘unpreventable employee misconduct’ defense was considered by the judge and is reviewed later in this decision. Accordingly, Turner is not prejudiced in the presentation of its case by an amendment from § 1926.28(a) to § 1926.105(a) under Fed. R. Civ. P. 15(b). Therefore, the record indicates that issues relevant to the use or non-use of the ladder as a method of fall protection were tried by the parties and were fully defended by Turner. Accordingly, an amendment under Fed. R. Civ. P. 15(b) to allege noncompliance with § 1926.105(a) is appropriate.

Turner maintains that the cited violative conduct resulted from the exposed employee’s failure to follow proper work practices. In order for the affirmative defense of unpreventable employee misconduct to prevail, an employer must establish that it had safety rules designed to prevent the violation and the rules were adequately communicated to its employees and effectively enforced. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ¶23,664 (No. 76–1538, 1979); Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD ¶ 23,670 (No. 76–2414, 1979). The defense fails where there is no evidence of work rules, safety instructions, or employee training designed to prevent employee exposure to a cited hazard. Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD ¶23,435 (No. 13685, 1979), appeal filed, No. 79–2224 (5th Cir. May 21, 1979).

The evidence in this case establishes that Turner failed to provide instruction to an employee of limited experience who was assigned a task that he had not performed previously. An employer cannot escape liability under the Act by relying on the judgment of employees who are inadequately trained in safe work procedures. See Butler Line and Cement Co., ___ OSAHRC ___, 7 BNA OSHC 1973, 1979 CCH OSHD ¶24,091 (No. 855, 1979), appeal filed, No. 80–1121 (7th Cir Jan. 31, 1980). The employer’s duty extends to ensuring that employees understand proper safety procedures. General Dynamics Corp., Quincy Shipbuilding Division v. OSAHRC, 599 F.2d 453 (1st Cir. 1979). Accordingly, Turner’s defense based on the assertedly unpreventable conduct of its employee is rejected and a violation of § 1926.105(a) is affirmed.[9]

We reach a different conclusion with respect to Citation No. 1, item 1, which alleged noncompliance with § 1926.450(a)(9). The cited standard requires that ladder side rails extend at least 36 inches above the landing or that grab rails be installed so that a secure grip is available for an employee climbing from the ladder onto the landing. If a ladder is used as a fall protection device under § 1926.105(a) rather than as a means of access to an elevation, the employee would not climb onto the landing and the extension or grab rails would not be necessary. In this case, the alleged violations of § 1926.105(a) and § 1926.450(a)(9) are mutually exclusive. Accordingly, the judge’s vacation of Citation No. 1, item 1 is affirmed.

In assessing penalties under the Act the Commission must take into consideration the employer’s history, its good faith, the size of its business and the gravity of the violation. 29 U.S.C. § 666(i). The Respondent in this case was inspected on one previous occasion and was cited for an unrelated nonserious violation that was not contested. Good faith was demonstrated by the foreman in cooperating fully with the compliance officer and in immediately removing the exposed employee from danger. Respondent’s business is small, with an annual gross income of approximately $200,000. Finally, although the likely result of an accident resulting from this hazard would be death or serious injury, only one employee was exposed to the fall hazard and his exposure was brief in duration. Considering the foregoing criteria, we conclude that the Secretary’s proposed penalty of $600 is excessive and that a penalty of $150 is appropriate.

VII

Although we conclude that the issue of whether Turner was in violation of § 1926.105(a) has been tried by the parties and that the record establishes a violation of that standard, we recognize that Turner has not had an opportunity to specifically demonstrate whether it would be prejudiced by this amendment. Therefore, we will affirm a citation for a serious violation of § 1926.105(a) and assess a penalty of $150 unless within ten days from the date of this decision Turner requests reconsideration on the ground that it has been prejudiced by the amendment to the citation. In the event a motion for reconsideration of the amendment is received, we will allow the parties an opportunity to brief this issue and will reconsider our order in light of the arguments and affidavits presented.

It is so ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JUN 18, 1980

BARNAKO, Commissioner, dissenting:

I agree with my colleagues that Turner Welding and Erection Company did not violate 29 C.F.R. § 1926.28(a) by permitting an employee to stand on the top of 29-foot high concrete panels.[10] However, I do not agree that a violation of 29 C.F.R. § 1926.105(a) was tried by express or implied consent of the parties.[11] Therefore, amendment of the pleadings to find a violation of that standard is improper. Thus, I would affirm the judge’s vacation of the citation for alleged violation of 29 C.F.R. § 1926.28(a) and would not find Turner in violation of 29 C.F.R. § 1926.105(a).[12]

My views concerning establishment of a violation of 29 C.F.R. § 1926.28(a) are set forth in my concurring opinion in S. & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal docketed, No. 79–2358 (5th Cir. June 7, 1979). As I noted there, I would find that a hazard within the meaning of § 1926.28(a) exists if a reasonable person familiar with the cited employer’s industry would recognize the cited condition as constituting a hazard. Here, one of Turner’s employees stood without protective equipment on the top edge of concrete panels which were only six inches wide and were about 27 feet above the ground. I find that these circumstances present an obvious fall hazard within the meaning of § 1926.28(a). See Forest Park Roofing Co., 80 OSAHRC ——, 8 BNA OSHC 1181, 1186, 1980 CCH OSHD ¶24,344 (No. 76–1884, 1980) (concurring opinion), and cases cited therein.

As I also noted in S. & H. Riggers, supra, an additional element in establishing a violation of § 1926.28(a) is demonstrating that another standard contained in 29 C.F.R. Part 1926 indicates the need for using the protective equipment which the Secretary asserts should have been used by Respondent’s employees. Here the Secretary asserts that Respondent’s employees should have used safety belts. The standard at 29 C.F.R. § 1926.104 establishes specifications for safety belts, lanyards, and lifelines and thereby places employers on notice that use of such equipment constitutes an appropriate means of protecting against fall hazards. Thus, fall hazards for which such equipment provides appropriate protection may be cited under § 1926.28(a).

Finally, to establish a violation of § 1926.28(a) the Secretary must demonstrate that there is a feasible means of protecting against the cited hazard through the use of personal protective equipment. The Secretary failed to do so here. He put forth no evidence to show how a safety belt and lanyard system could have been installed on the top edge of the upright concrete panels. Moreover, the photographic evidence shows that safety lines or belts could not have been anchored to the panels so as to protect and employee working on top of them and that there were no other adjacent structures to which such equipment could have been anchored. Therefore, a violation of § 1926.28(a) was no shown.

Unlike the majority, I would not amend the citation and complaint to find Turner in violation of a different standard, 29 C.F.R. § 1926.105(a), for failing to require an employee to work from a ladder rather than on top of the concrete panels. My colleagues err in finding trial of this new charge on the basis of implied consent of the parties, since the evidence concerning use of a ladder on which they base their amendment was introduced as part of Turner’s defense to the § 1926.28(a) charge and was relevant to that charge.[13] As the court of appeals stated in reversing my colleagues in McLean-Behm Steel Erector, Inc. v. OSHRC, 608 F.2d 580, 582 (5th Cir. 1979), ‘the unchallenged admission of evidence relevant to both pleaded and unpleaded issues does not imply consent to trial of the unpleaded issues, absent some obvious attempt to raise a new issue.’ There was no attempt, obvious or otherwise, to raise the § 1926.105(a) charge at trial here.

My colleagues’ amendment to find violation of a different standard is premised also on their determination that Turner could not have offered any additional evidence if the case had been tried on the amended charge. It is unclear how they can purport to divine whether Turner could have offered other evidence had it actually been charged with the violation which they find it committed. Thus, this basis for amendment is uncertain at best.

For these reasons, I would affirm the judge’s holding vacating the alleged violation of 29 C.F.R. § 1926.28(a) and would not amend the citation and complaint to find a violation of 29 C.F.R. § 1926.105(a).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16235
TURNER WELDING & ERECTION CO., INC.,
Respondent.

May 4, 1977

Appearances:

James F. Gruben, Esquire, Dallas, Texas for Complainant.

Earl S. Achilles, President of Turner, Welding & Erection Co., Inc., Ballad, Texas for Respondent.

There was no appearance by or on behalf of any affected employees.

STATEMENT OF THE CASE

Jerry W. Mitchell, Judge

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) contesting a Citation issued against Turner Welding & Erection Co., Inc. (Respondent) by the Secretary of Labor (Complainant) under the authority vested in Complainant by Section 9(a) of the Act.

A place of business and employment under the operation and control of Respondent, described as ‘Steel erection’ located at 7500 I.H. 10 N.W., San Antonio, Texas, was inspected by a representative of the Secretary of Labor on 17–19 November 1975. During that inspection alleged violations of three separate safety standards were noted. As a result of the inspection Citation Number 1 (Non-serious, 2 Items) and Citation Number 2 (Serious, 1 Item) were issued to Respondent on 3 December 1975. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a Notice of Proposed Penalty dated 3 December 1975 of the proposal to assess penalties of $50 and $600 in connection with Citations Number 1 and Number 2, respectively. In a timely manner Respondent filed a letter contesting these citations and proposed penalties.

The alleged violations are described in the citations in the following language with the cited safety standards quoted immediately thereafter:

Citation Number 1

Item 1—29 CFR 1926.450(a)(9)

Ladder at the following location was not positioned so that the side rails extended at least 36 inches above the landing and there were no grab rails provided:

One portable ladder located on the southeast corner of the south wall did not extend 36 inches above the landing.

ABATE—‘one day upon receipt of this citation’

Item 2—28 CFR 1926.450(a)(10)

‘Portable ladder being used at the following location was not tied, blocked or otherwise secured to prevent displacement:

One portable ladder located on the southeast corner of the south wall was not secured.

ABATE—‘one day upon receipt of this citation’

Citation Number 2

Item 1—29 CFR 1926.28(a)

Employer did not require employees to wear appropriate personal protective equipment:

One man exposed to a fall of 29 feet from the top of the south wall.

ABATE—‘immediately upon receipt of this citation’

SAFETY STANDARDS—29 CFR

Subpart C—General Safety and Health Provisions

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.

Subpart L—Ladders and Scaffolding

§ 1926.450 Ladders.

(a) General requirements.

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

(10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

Complaint was duly filed but Respondent did not answer until after he was served with an Order to show cause why his Notice of Contest should not be dismissed for failure to answer the complaint. His answer was filed pro se. Trial was held at San Antonio, Texas.

PROCEEDINGS AND EVIDENCE

When the trial convened Complainant was represented by counsel and Respondent by its President, appearing pro se. At this time Complainant withdrew its previously filed motion to affirm the citations and proposed penalties. The parties entered into a stipulation on the record that the welding equipment, cranes, etc., used by Respondent were from outside the State of Texas. Jurisdiction was stipulated to at this time.

Complainant presents its case through the testimony of three witnesses. Respondent’s President (Earl S. Achilles) states that he had a superintendent (Fred Leal) in charge at the construction site at the time of the inspection. Four men were working under that superintendent’s direction. He describes the work being done and the equipment in use. The men were erecting prefabricated concrete panels. Each panel was approximately 15 feet wide and 29 feet high when standing erect. He also describes the physical layout of the worksite.

One of Respondent’s employees (Mike Castillo) describes the work he was doing at the time of the inspection. He admits that there was no life line or any other safety device on top of the wall where he was working. He states that he walked along the top of the wall (panels) for 20 to 25 feet. The top of the wall was 6 inches wide and smooth.

The Compliance Officer (Charles W. McGlothlin) testifies concerning his inspection of Respondent’s work place. He describes the work in progress when he arrived and identifies the hazards involved. No safety nets were present at the worksite. The employee (Castillo) on top of the wall was not wearing any safety equipment.

Respondent presents its case through the testimony of its Superintendent (Fred Leal) who was in charge of Respondent’s employees at the time of the inspection. He describes the work in progress and states that he did not send Castillo to the top of the wall. Castillo was instructed to sight along the panels from the ladder. This witness was personally working with the jacks being used to align the panels.

Respondent’s President testified as the final witness. His testimony is that the ladder was not used for access to the top of the panels. Its sole use was to permit Castillo to bring his eye to the level of the top of the panels so as to align them. He admits that Castillo was not wearing safety gear and insists he did not need the gear because he was not supposed to be on top of the panels. Respondent’s gross annual business is about $200,000.

Subsequent to receipt of the transcript Complainant filed proposed Findings of Fact and Conclusions of Law. Respondent has not submitted anything further.

DISCUSSION

JURISDICTION—

Respondent admits on the record that the welding equipment, cranes, etc., in use were from outside the state of Texas. Jurisdiction is stipulated.

THE VIOLATIONS—

Citation Number 1—Item 1—This Item alleges that the ladder in use did not extend 36 inches above the ‘landing’ and was not fitted with ‘grab rails’.

The evidence clearly shows that the ladder in use did not extend above the top of the wall panels and was not fitted with any ‘grab rails’. However, the evidence also establishes that the sole intended use of the ladder was for a platform from which a man could sight along the panels so as to align them. The ladder was not for use as access to the top of the panels as a working position.

It is obvious from Exhibit 3 that the ladder was of sufficient length to satisfy this intended use. If the man on the ladder in Exhibit 3 were standing so as to sight along the top, rather than climbing down from on top of the panels, his feet would be at least 2 and possibly 3 rungs lower on the ladder. Such a lower position is clearly within safe and adequate reach of the side rails. In the lower position the side rails would extend at least 36 inches above the position of his feet and thereby satisfy the requirements of the standard. The actual use of the ladder to gain the top of the panels was an isolated occurrence (see discussion under Citation Number 2 below) and does not constitute a violation of the cited standard for which Respondent should be held responsible.

Citation Number 1—Item 2—This Item alleges that the ladder in use was not ‘. . . tied, blocked, or otherwise secured to prevent displacement. . .’.

It is clear from the evidence that the ladder was not tied or blocked. (See Exhibit 4.) There is some indication in the record that another employee may have held the ladder while Castillo climbed it and again while he descended. But it is absolutely clear that no one was holding the ladder while he was sighting from it to align the panels. The other 4 men present (including the Superintendent) were all adjusting jacks on the braces while aligning the panels. At the same time Castillo was calling instructions on how to move the panels. The Superintendent was facing so that the other 3 men were in his view. He should have known that no one was holding the ladder. Complainant has established the existence of this violation.

Citation Number 2—This Citation alleges that an employee was exposed to a fall of 29 feet from the top of a wall without being required to wear appropriate personal protective equipment.

The evidence establishes the location of the employee (Castillo) on top of the wall while not wearing any personal protective equipment. It also shows, however, that Castillo was only instructed to go up the ladder to align the panels. He was not told to go on top of them and it was not necessary for him to do so. In fact, it was actually more difficult to align from a position on top. Castillo unexpectedly took it upon himself to climb on top of the panels.

Complainant urges that Respondent’s Superintendent knew or at least should have known, that Castillo was on the panel top. The evidence does not clearly establish this. The manner in which the work of plumbing the panels was being done required that all of the Superintendent’s attention be focused on the jacks in use on the braces. There was no reason for him to look higher. Likewise, there was no reason for the Superintendent to anticipate that Castillo would leave the ladder. He had been with Respondent for 3 years and was apparently considered to be reliable. In addition, it is common practice that aligning panels is always accomplished from a ladder where the eye is level with the top of the panels—not from a position on top of them.

In short, it appears that Respondent did not and could not reasonably have known that Castillo would climb to the top as opposed to properly remaining on the ladder. The facts in this record are sufficient to establish that this was indeed an ‘isolated occurrence’ within the holding of the Commission’s decision in Secretary v. Murphy Pacific Marine Salvage Co., 15 OSAHRC 1 (1975). The evidence is sufficient in extent to sustain Respondent’s burden on this affirmative defense. The conclusion here is that the presence of Castillo on top of the wall is an isolated occurrence which Respondent could not have reasonably anticipated or foreseen.

APPROPRIATE PENALTY—

In determining the appropriateness of any penalty to be assessed in connection with the violation proven in connection with Item 2 of Citation Number 1 it is necessary to give due consideration to the criteria history, size of business, good faith and gravity) set forth in section in Section 17(j) of the Act.

1. Respondent had been inspected on 1 previous occasion and cited for a hard hat violation.

2. Respondent’s business is very small. One Superintendent and 4 other employees were at the work place. Respondent’s gross annual business is about $200,000.

3. There is no indication of any lack of good faith. The Superintendent cooperated fully and immediately removed the man from danger.

4. Only one employee was exposed to the hazard of the unsecured ladder and his exposure was not long in duration.

Consideration of the foregoing criteria leads to the conclusion here that a penalty of $25 is appropriate under these circumstances.

Consequently, based upon the evidence adduced, the arguments made, and the brief submitted, we make the following:

FINDINGS OF FACT

1. On 17 November 1975 and at all times material hereto Turner Welding & Erection Co., Inc., Respondent herein, was engaged in the construction industry at a work place at San Antonio, Texas. Welding equipment, cranes, etc., in use at the work place were from outside the state of Texas. Five employees were working at the inspected work place. Respondent was engaged in a construction business affecting commerce. (Transcript pgs 10–15 and 23–25.)

2. On 17 November 1975 a Compliance Safety and Health Officer inspected Respondent’s work place at San Antonio, Texas on behalf of the Secretary of Labor. As a result of that inspection two Citations were issued to Respondent on 3 December 1975. The Notification of Proposed Penalty issued to Respondent on that same date sought penalties of $50 and $600, respectively. Respondent contested the Citations and proposed penalties in a timely manner on 18 December 1975. (File and Transcript pgs 18–19.)

3. On 17 November 1975 Respondent’s employees were plumbing and aligning prefabricated concrete panels in an upright position. Each panel was about 15 feet wide and 29 feet long (high) and weighed between 30,000 and 40,000 pounds. The top of the wall was about 6 inches wide and smooth surfaced. They were raised into vertical position with a crawler-type crane and held there by braces. Screw jacks, incorporated in the braces, were used to plumb and align the panels. (Transcript pgs 18–24, 39–41, 67–71, 78–82 and Exhibits 1, 2, 3, and 4.)

4. Final aligning of the panels requires that someone climb a ladder located at one end of the series of panels and sight along their top. This person then gives instructions to the men on the ground so that they can adjust the jacks until the panels are aligned. Sighting along the tops of the panels is done with the eye level with the tops. The sighting is done from a ladder—not from on top of the panels. (Transcript pgs 21–29, 33–34, 37–42, 67–74, 78–98, 102–104 and Exhibit 3.)

5. Respondent’s employee (Castillo) was instructed by the Superintendent to go up on the ladder and sight along the panels. Castillo was not told to go on top of the panels. There was no need for him to climb on top in order to direct the aligning of the panels. Castillo climbed on top of the panels of his own volition and walked along the top for about 20 to 25 feet. He was on top of them in a position approximately 29 feet above the ground for about 10 minutes. He was not wearing or protected by any personal protective equipment. (Transcript pgs 32–42, 44–59, 67–74, 77–98, 101–104 and Exhibits 1, 2, and 3.)

6. Castillo climbed a ladder to sight along the panels for aligning. The ladder did not reach all of the way to the top of the panels but was adequate in length to put him in position to sight along the tops of the panels. If he had remained at the height on the ladder where his eye was level with the top of the panels his position would have been such as to have the ladder’s side rails project more than 36 inches above the level of his feet. (Transcript pgs 25–26, 33–42, 67–72, 83–92, 101, and Exhibit 3.)

7. The bottom of the ladder used by Castillo was not tied or blocked. The bottom of the ladder was held by another employee while Castillo ascended and during part of his descent. It was not held by anyone during the time he was sighting along the wall or during part of the time he was descending. (Transcript pgs 34–38, 42, 59, 95, and Exhibit 4.)

8. It was not necessary for Castillo to climb on top of the panels to do the aligning. There was no reason for the Superintendent to anticipate that Castillo would leave the usual aligning position on the ladder for the top of the panels. (Transcript pgs 22–24, 38–42, 67–73, 76–98, 101, and Exhibit 3.)

9. There is no showing that Respondent’s Superintendent was negligent in sending Castillo to do the aligning or that he should have observed Castillo climb on to the top of the panels. (Transcript pgs 42, 69–82, 97, and 103–104.)

10. Respondent’s business grossed $200,000 annually. (Transcript pg 107.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto Turner Welding & Erection Company, Inc., Respondent herein, was an employer engaged in a construction business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On 24 December 1975 Respondent filed a letter contesting the Citations and penalties involved here. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.

2. The side rails of the ladder covered by Item 1 of Citation Number 1 did project at least 36 inches above the place where it was intended that a user’s feet should be located in the normal use of the ladder. The circumstances found in Finding 6 do not constitute a violation of 29 CFR 1926.450(a)(9).

3. Respondent’s failure to tie, block or otherwise secure the bottom of the ladder as found in Finding 7 is a non-serious violation of 29 CFR 1926.450(a)(10).

4. The presence of Respondent’s employee on top of the wall, 29 feet above the ground, without any personal protective equipment or nets as found in Finding 5 was an isolated brief occurrence. Respondent was NOT in violation of 29 CFR 1926(a). as alleged in Citation Number 2.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is

ORDERED that:

1. Item 1 of Citation Number 1 be, and the same hereby is, VACATED;

2. Item 2 of Citation Number 1 be, and the same hereby is, AFFIRMED;

3. Citation Number 2 and the penalty proposed therefor be, and the same hereby are, VACATED; and that

4. A penalty of $25 be, and the same hereby is, ASSESSED in connection with the violation of 29 CFR 1926.450(a)(10) as set forth in Item 2 of Citation Number 1.

JERRY W. MITCHELL

Judge, OSHRC

DATED: May 4, 1977

OSHRC, San Francisco, CA

[1] Section 1926.28(a) provides:

§ 1926.28(a) Personal protective equipment.

[2] Section 1926.450(a)(9) provides, in pertinent part:

§ 1926.450 Ladders.

(a) General requirements.

[3] Although the judge used the phrase ‘isolated occurrence,’ rather than ‘unpreventable employee misconduct,’ we consider the two to be indistinguishable. See, e.g., Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1478 n. 4, 1979 CCH OSHD ¶23,664, at p. 28,694 n. 4 (No. 76–1538, 1979); Briscoe Arace/Conduit, a Joint Venture, 77 OSAHRC 35/C13, 5 BNA OSHC 1167, 1977–78 CCH OSHD ¶ 21,631 (No. 12135, 1977).

[4] Section 1926.105(a) provides:

§ 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.

[5] The Rule provides, in pertinent part:

Rule 15. Amended and Supplemental Pleadings

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . .

[6] 29 C.F.R. § 2000.2 Scope of Rules; applicability of Federal Rules of Civil Procedure.

(b) In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.

[7] Although the question of amendment to § 1926.105(a) was raised by the Secretary in his Petition for Discretionary Review, the Secretary did not specifically move to amend.

[8] If the evidence admitted without objection is relevant to prove both the original and amended charges, consent will not be implied unless it is determined that additional relevant and material evidence in defense of the amended charge could not have been adduced. See, e.g., Bill C. Carroll Co., supra, 7 BNA OSHC at 1810 n.11, 1979 CCH OSHD at p. 29,032 n. 11.

[9] The judge made a credibility determination that Leal did not know of Castillo’s presence atop the panels. However, this determination is unsupported by the weight of the evidence. Foreman Leal testified as follows:

Q: So you told him to get down after Mr. McGlothlin came up, did you?

A: As soon as he mentioned the fact I told him to get down.

Q: But you had seen him up there before Mr. McGlothlin got there. Is that a fact?

A: Yes, sir.

Hearing Transcript at 69–70. Accordingly, we reject the judge’s determination, see Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975–76 CCH OSHD ¶20,441 (No. 3395, 1976), and find that Turner’s foreman had actual knowledge of Castillo’s presence on the panel tops. A supervisor’s knowledge, whether actual or constructive, is imputable to his employer. Niagara Mohawk Power Corp., supra. Even without the finding of actual knowledge, the instant record establishes that the foreman could have known of the violation with the exercise of reasonable diligence. Niagara Mohawk Power Corp., supra.

[10] 29 C.F.R. § 1926.28(a) states:

Personal protective equipment.

[11] 29 C.F.R. § 1926.105(a) states:

Safety nets.

(a) Safety nets shall be provided when work-places 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.

[12] I would affirm the citation charging Turner with violation of 29 C.F.R. § 1926.450(a)(9), in that a ladder used by an employee did not extend 36 inches above the top of the concrete panel and grab rails were not installed. For the reasons stated by my colleagues, I reject the argument that this violative condition was caused by unpreventable employee misconduct.

[13] Since turner also was charged with two violations concerning the ladder, evidence regarding the ladder also was introduced in relation to these charges. As noted in note 3, supra, Turner was charged with violating 29 C.F.R. § 1926.450(a)(9) for failure of the ladder to extend 36 inches above the panel. Also Turner was charged with violating 29 C.F.R. § 1926.450(a)(10) for not having the ladder secured. The latter violation was affirmed by the judge and is not before the Commission on review.