UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-3105
WANDER IRON WORKS, INC.,
Respondent.

April 30, 1980

DECISION

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

COTTINE, Commissioner:

The Respondent, Wander Iron Works, Inc. (‘Wander’), was alleged by the Secretary to have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (‘the Act’), while engaged in constructing a ‘Sports Complex’ in New Jersey. The case was heard by Administrative Law Judge Jerome C. Ditore and his decision was directed for Commission review under 29 U.S.C. § 661(i).[1] At issue is whether the judge erred in affirming citations alleging serious violations of 29 C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.451(m)(6), and item 1 of a citation alleging a nonserious violation of 29 C.F.R. § 1926.25(a). The judge assessed a penalty of $200 for each of the serious violations and no penalty for the nonserious violation.

The citation for violation of section 1926.451(m)(6)[2] alleged that Wander failed to provide guardrails and toeboards around the ends and open sides of a scaffold. The compliance officer observed Wander’s foreman, Berenger, installing iron work channels from a bracket scaffold that was 15 feet above the ground. It is undisputed that there were no guardrails on this scaffold. The scaffold was suspended from a structural steel beam by two triangular metal brackets. One bracket was approximately 12 inches from each end of the scaffold. The structural steel beam was 3 feet above and horizontal to the inside edge of the seaffold. According to the compliance officer’s testimony, the beam and the brackets provided some fall protection. The compliance officer also testified that he personally observed Berenger working and that Berenger was wearing a safety belt that was not tied off. Berenger testified that he did not have his belt tied off because he was about to descend from the scaffold to go to lunch.

The judge affirmed a serious violation of section 1926.451(m)(6). He stated that ‘a safety belt line, if used, would have negated the requirement of scaffold guardrail protection.’ However, he found that the evidence established that Berenger was not tied off when the compliance officer observed him at work, and thus Berenger was without fall protection at that time.[3] He also found that the Respondent knew or should have known of the hazard and characterized the violation as serious because a 15-foot fall from the unguarded scaffold could have resulted in death or serious injury. Although a $500 penalty had been proposed by the Secretary, the judge assessed a penalty of $200 because only one employee was exposed to the hazard and the brackets on the scaffold afforded some protection from a fall.

Wander contends that the use of safety belts in lieu of guardrails is a permissible alternative method of compliance with the cited standard. The Commission has held that, in order to prove a violation of section 5(a)(2) of the Act, the Secretary must establish that a specific standard applies to the facts, there was a failure to comply with that standard, and employees of the cited employer had access to the hazard.[4] Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶20,690 (Nos. 3694 & 4409, 1976). An employer may substitute an alternative form of protection from that required by the standard if it can establish the elements of one of three defenses: impossibility of compliance or performance, see, e.g., M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23, 330 (No. 15094, 1979); greater hazard, see, e.g., Russ Kaller, Inc. t/a Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD ¶ 21,152 (No. 11171, 1976); or multi-employer worksite defenses, see, e.g., Anning-Johnson Co., supra.

In this case, the Secretary established that the scaffold did not have guardrails as required by section 1926.451(m)(6) and an employee was working on the scaffold. Consequently, the Secretary has established noncompliance with the requirements of the cited standard and exposure. Moreover, Wander has neither asserted nor established any of the elements of the three defenses that would excuse it from using guardrails on the scaffold.[5] In addition, the use of safety belts does not constitute ‘equivalent protection’ as that term is used in section 1926.451(m)(6).[6]

Wander also contends that the Secretary did not prove that it had knowledge of the violation. Wander’s foreman, Berenger, obviously had knowledge of the violative condition inasmuch as he was the employee on the unguarded scaffold. The Commission has held that, although an employer is generally responsible for a violation either created by its supervisory employees or within their actual or constructive knowledge, the employer may defend by showing that it took all necessary precautions to prevent the occurrence of the violation. F.H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD ¶ 22,543 (Nos. 15472 & 15760, 1978). The employer must show that it established work rules designed to prevent the violation, adequately communicated these rules to its employees, and effectively enforced the rules when violations were discovered. Asplundh Tree Expert Co., supra note 5. Consequently, Berenger’s knowledge was properly imputed to Wander unless it established that his conduct was unpreventable. Wander never alleged or adduced evidence that the failure to erect proper guardrails on the scaffold—the cited hazard—was the result of unpreventable employee conduct. Thus, Wander’s argument that its foreman’s failure to tie off his safety belt was unpreventable employee conduct is irrelevant to proving the defense of unpreventable employee conduct concerning the lack of guardrails on the scaffold.

Accordingly, we affirm a violation of section 1926.451(m)(6). We agree with the judge’s characterization of the violation as serious based on the probability of serious injury in the event of a 15 foot fall.

The Secretary alleged that Wander violated section 1926.28(a)[7] by failing to require its employees to wear safety belts when working on a ladder setting iron work channels. In this instance Roemer, another employee of Wander, was working on a ladder 15 feet above the ground. This ladder was immediately adjacent to the scaffold where Berenger was working. Roemer was not wearing a safety belt, and no other fall protection was provided.

Judge Ditore affirmed a serious violation of section 1926.28(a). He found that Wander knew or should have known of the condition through its foreman. He rejected the Respondent’s contention that this incident was an isolated occurrence because there was no evidence that the Respondent enforced its safety policy requiring employees to use safety belts. He found the violation to be serious based on the fact that a 15-foot fall to the ground could have resulted in death or serious injury. However, he reduced the penalty to $200 because only one employee was exposed to the hazard.

Wander contends that knowledge of the violation has not been proven because its employees were instructed to use safety belts and its experienced foreman was present. Wander also contends that an employer is not liable for violations that are unforeseeable when they arise in contravention of work rules or with the knowledge of an experienced foreman. However, Berenger, the Respondent’s foreman, was working on the scaffold adjacent to the ladder where Roemer was working at the time the compliance officer observed the violation. Consequently, Berenger obviously knew or could have known that Roemer was not even wearing a safety belt.[8]The foreman’s knowledge and apparent approval of the employee’s actions are properly imputed to the Respondent unless the Respondent proves that the supervisor with knowledge of the violation was himself adequately supervised with regard to safety matters. Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD ¶ 21, 696 (No. 11015, 1977). Although Wander asserts that its safety policy required employees to use safety belts where a fall hazard exists, the record establishes that only generalized instructions were issued. There is no evidence showing that the safety policy was enforced and Berenger’s inaction indicates a lack of enforcement. See B-G Maintenance Management, Inc., supra note 5. In addition, Wander has not established that its supervisor’s inaction was itself unpreventable. F.H. Sparks of Maryland, Inc., supra. Thus, Wander has failed to establish the defense of ‘unpreventability’.

We agree with the judge’s conclusion that the violation is serious. Serious injury is likely to result from a 15 foot fall. Accordingly, we affirm a serious violation of section 1926.28(a).

III

Item 1 of citation 3 alleged that a passageway was cluttered with debris, masonry rubble, sheet metal cuttings, and boards in violation of section 1926.25(a).[9] The compliance officer observed Roemer walking through the passageway to obtain work materials. These conditions exposed Roemer to a tripping hazard. Berenger stated Roemer was attempting to clear up the debris ‘so he could get some of the decking.’ It is undisputed that another employer was contractually responsible for the removal of the debris, and Wander did not create or control the condition.

The judge affirmed a nonserious violation of section 1926.25(a) and assessed no penalty. The judge found that Roemer not only had access to the passageway, but actually walked through it to obtain work materials. Consequently, he found that Roemer was exposed to a tripping hazard. He held that the Respondent knew of the condition through its foreman and should have required the responsible contractor to remove the debris before its employees entered the passageway.

Wander contends that the Secretary did not prove that it had knowledge of the violative condition. However, the Secretary established that the foreman knew that the passageway was cluttered with debris. Berenger admitted that ‘there was debris around the floor when we were bringing panelling in.’ He stated that this debris was within three feet of the location of the panelling. This evidence establishes that Berenger had actual knowledge of the violative condition. Wander did not contend or adduce evidence that the alleged nonserious violation of section 1926.25(a) involved unpreventable employee misconduct. We accordingly impute Berenger’s knowledge to the Respondent.

Wander also argues that it should not be found liable for a violation, of section 1926.25(a) because it did not create the debris and was not responsible for clearing it. The Commission has held that, if a subcontractor on a multi-employer worksite establishes that it neither created nor controlled the hazardous condition, it may affirmatively defend against an alleged violation by showing either that it lacked notice that the condition was hazardous or that its exposed employees were protected by realistic measures taken as an alternative to literal compliance with the cited standard. See Anning-Johnson Co., supra; Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691 (No. 12775, 1976).

Although Wander established that it did not create the debris and was not contractually responsible for removing it, Wander did not present any evidence that it took steps to protect employees against the tripping hazard.[10] Nor did it present any evidence that it requested the general contractor, who was contractually responsible for maintaining the area, to comply with the standard.[11] Consequently, we reject Wander’s contention that it should not be liable for a violation of section 1926.25(a) because it did not create or control the hazardous condition. We agree with the judge that the Respondent violated section 1926.25(a).

We conclude that the judge properly affirmed each of the three citations at issue and further conclude that the judge’s penalty assessments are appropriate for the reasons he assigned. Accordingly, the judge’s decision is AFFIRMED. IT IS SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

Executive Secretary

DATED: APR 30, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-3105
WANDER IRON WORKS, INC.,
Respondent.

March 7, 1977

Appearances:

Francis V. LaRuffa, Regional Solicitor United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Barnett Silverstein, Esq., of counsel

Shatzkin, Cooper, Labaton, Rudoff & Bundler, Esqs.

235 East 42nd Street

New York, New York 10017

Attorneys for respondent by Douglas A. Cooper, Esq., of counsel

DECISION AND ORDER

DITORE, J.:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., hereinafter called the Act), contesting citations for serious and nonserious violations of occupational safety and health standards, issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. § 658(a)).

The citations allege that as a result of an inspection on or about May 17, 1976, of a workplace at East Rutherford, New Jersey, and described as a ‘Sports Complex’, the respondent violated section 5(a)(2) of the Act (29 U.S.C. § 654(a)(2)) by failing to comply with occupational safety and health standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR §§ 1926.28(a), 1926.451(m)(6) and 1926.25(a).

The descriptions of the violations and the standards as promulgated by the Secretary are as follows:

Serious Citation No. 1: Description

29 CFR 1926.28(a): Employee installing miscellaneous iron work on plaza level at column 50, reaching around the column and working beyond the side rails of the ladder, was not wearing a safety belt where he was exposed to a falling hazard of more than 15 feet from the ladder to the adjacent ground below.

Standard as promulgated

§ 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.

Serious Citation No. 2: Description

29 CFR 1926.451(m)(6): Platform on bracket scaffold on plaza level at column 50, which was more than 10 above the ground, did not have standard guard rails or toeboards installed on all open sides and ends.

Standard as promulgated

§ 1926.451 Scaffolding.

(a) . . ..

(m) Carpenters’ bracket scaffolds

(1) . . ..

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

Nonserious Citation, Item 1 : Description

29 CFR 1926.25(a): Debris was not kept cleared from the following areas:

In work area at plaza level column 42 between D & E the debris on floor created a tripping hazard. There was lumber with protruding nails, rubble, construction material and equipment on the floor.

Standard as promulgated

§ 1926.25 Housekeeping.

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

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. § 659(a)), the respondent was notified by letter dated July 8, 1976, from the area director of Hasbrouck Heights, New Jersey, that the Occupational Safety and Health Administration proposed to assess a $500.00 penalty for each of the two serious violations and a zero penalty for the nonserious violation. The action was heard at New York, New York on November 30, 1976.

ISSUES

1. Whether the alleged violations existed at respondent’s workplace on the dates of inspection.

2. If the one or more or all of the violations existed, whether respondent’s employees were exposed or had access to the hazards created.

3. If respondent’s employees were exposed or had access, whether respondent was responsible for the violations.

4. If respondent was responsible, whether the penalties proposed for the serious violations were reasonable and proper.

STATEMENT OF THE EVIDENCE

From April 5, 1976 to May 18, 1976, compliance officer Thomas P. Marrinan inspected a Sports Complex construction site at East Rutherford, New Jersey. Respondent, Wander Iron Works, Inc., was one of about 36 to 39 subcontractors at the jobsite (T. 7 10, 54).[14]

On April 27, 1976, about 11:45 a.m., officer Marrinan observed two of respondent’s employees working at column 50 which was located on the spiral access ramp of the football stadium. One employee, Kenneth Berenger, respondent’s foreman, was working from a bracket scaffold 15 feet above ground level. The scaffold was 20 inches wide, 15 feet long and consisted of two 2 x 10 inch planks held by two triangular metal brackets, 12 inches in from each end of the planks, suspended from a structural steel beam. The ends and outward side of the scaffold were unguarded (T. 11 16, 40, 70; Exhs. C 1, C 2). The other employer, John Roemer, was working, 15 feet above ground, from a ladder which was adjacent to one end of the scaffold. Roemer was not wearing a safety belt and was not tied off (T. 16 18, 23 24, 40, 78, 81; Exh. C 1).

About five minutes after officer Marrinan took a picture (Exh. C 1) of Berenger and Roemer at work, Berenger descended from the scaffold at officer Marrinan’s request. Marrinan told Berenger that the scaffold ends and open side were unguarded; and that Roemer was not tied off while working from the ladder (T. 18, 69). Berenger replied that he could use a safety belt and line, which he was wearing, for protection in lieu of guardrail protection. He demonstrated the use of a safety belt and line by returning to the scaffold and wrapping his 3-foot safety line around a 6 inch square beam, and attaching it to his safety belt. When he was tied off he had about one or one and one-half feet of mobility on the scaffold (T. 19, 41, 75; Exh. C-s). When he was first observed by officer Marrinan (Exh, C 1), Berenger was wearing a safety belt but it was not tied off (T. 20, 67, 80; Exh. C 1).

On May 4, 1976,[15] on the plaza level of the football stadium at column 48, officer Marrinan observed respondent’s employee Roemer, moving through a passageway and work area which was cluttered with debris, masonry rubble, sheet metal cutting and boards (T. 30 31, 35 36; Exhs. C 3, C 4). Officer Marrinan was told by Berenger that Roemer was cleaning up the debris (T. 73).

Officer Marrinan believed that Roemer was exposed to a serious falling hazard of 15 feet when working on the ladder without the protection of a safety belt and lien; and that Berenger was exposed to a serious 15-foot falling hazard when working on the unguarded scaffold. He did not believe because of the nature of Berenger’s work, that the use of a safety belt and line by Berenger was practical or feasible (T. 19, 21 26). He recommended an adjusted proposed penalty of $500.00 for each of the two serious violations, and a zero penalty for the tripping hazard created by the debris violation (T. 47 50).

Kenneth Berenger, respondent’s foreman stated that his safety belt was not tied off at 11:45 a.m., when he was observed by officer Marrinan because he was preparing to leave the scaffold for lunch; that prior to leaving the scaffold he hit a 2 x 4 wedge with a hammer (Exh. C 1); that he was tied off at all other times; that his safety line was 3 feet long and when secured allowed him about 1 to 1 1/2 feet of mobility on the scaffold; and that it was respondent’s policy that all its employees were to wear and use their safety belts (T. 86 90, 104, 105).

He identified Roemer as the individual in Exh. C 4, and claimed Roemer was trying to clean away some of the debris in order to reach some working material. He did not see Roemer but was in voice contact with him. The removal of debris was not respondent’s duty but if some of it was not cleaned up they would not be able to get their work done. The debris was not in an area through which they had to walk to get to their workplace (T. 90 92, 97 98).

OPINION

Nonserious Citation, Item 1

The evidence establishes that the debris observed by officer Marrinan on May 4, 1976, at respondent’s worksite, was of a nature and quantity sufficient to cause a tripping hazard to an employee in the area. It was not respondent’s duty to clear away the debris and there is no evidence that respondent created the condition or controlled the area where the debris was located.

The evidence does establish that respondent’s employee, Roemer, not only had access to the debris area but walked through it to reach materials for respondent’s work. Under these conditions, respondent’s employee was exposed to a tripping hazard while in the debris area. Respondent, through its foreman, knew of the condition that existed and should have required the party responsible for removing the debris to do so before its employee entered the debris area. Respondent is responsible for the violation.

Serious Citation No. 1—29 CFR § 1926.28(a)

The evidence establishes that respondent’s employee, Roemer, on April 27, 1976, while working from a ladder 15 feet above ground level, was not wearing and using a safety belt and line to protect him from a 15-foot fall hazard. The hazard was serious in that a fall from the ladder by Roemer could have resulted in death or serious physical harm. Respondent, through its foreman, knew or with the exercise of reasonable diligence should have known of the serious condition that existed. Respondent has a safety policy which requires that its employees wear and use safety belts and lines but there is no evidence that this rule is enforced. Respondent is responsible for the violation.

The gravity of the violation was average. One employee was involved at the time of the inspection on April 27, 1976, and the incident was not repeated at any subsequent time during the balance of the compliance officer’s inspection of the construction site.

Under all the circumstances including a consideration of the statutory factors of section 17(j) of the Act, the proposed penalty of $500.00 is unreasonable and is reduced to $200.00.

Serious Citation No. 3—29 CFR § 1926.451(m)(6)

Kenneth Berenger, respondent’s foreman was observed working from a bracket scaffold which was unguarded at its open ends and outward side. Berenger claimed that his safety belt which he was wearing, was tied off to a safety line; that his safety belt was untied when he was observed because he was about to descend from the scaffold for lunch; and that when he was tied off he had about 12 to 18 inches of movement on the scaffold.

Officer Marrinan stated that when he observed Berenger at work he was not tied off; that he was told by Berenger that a safety belt and line could be used in lieu of scaffold guardrails; and that Berenger demonstrated how the safety belt and line could be used. The use of a safety belt and line, if used, would have negated the requirement of scaffold guardrail protection.

The credible evidence establishes that Berenger was wearing a safety belt which was not tied off when he was observed at work by officer Marrinan; that he was without fall protection at that time; and that he descended the scaffold because of officer Marrinan’s request to do so. It can also be inferred from the nature of the work Berenger was performing from the 15-foot long scaffold, that it was not practical for him to use his safety belt and line. The safety line, if attached, allowed him freedom of movement of only 12 to 18 inches.

The violation is serious in that a 15-foot fall by Berenger from the unguarded scaffold could have resulted in death or serious physical harm. The gravity of the violation was average. One employee was involved. The triangular brackets at the ends of the scaffold offered some protection from falls at these locations. The violation was neither repeated nor continued during the subsequent inspection of the construction site by officer Marrinan.

Respondent knew, or with the exercise of reasonable diligence should have known of the serious scaffold condition. Respondent is responsible for the violation. Under all the circumstances including consideration of the statutory factors of section 17(j) of the Act, the proposed penalty of $500.00 is unreasonable and is reduced to $200.00.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1. Respondent, Wander Iron Works, Inc., admits its business affects commerce.

2. On April 27 and May 4, 1976, respondent was performing work as a subcontractor, at a football stadium of a Sports Complex construction site at East Rutherford, New Jersey.

3. Respondent had a foreman and one other employee working at the site.

4. On May 4, 1976, respondent’s employee, Roemer, in order to reach working materials, walked and passed through an area adjacent to his worksite which contained debris. The debris, i.e., masonry rubble, sheet metal cuttings and boards, was of sufficient quantity to create a tripping hazard.

5. Respondent knew of the debris condition, through its foreman, and took no action to protect its employee from the hazard created by the debris.

6. On April 27, 1976, respondent’s employee, Roemer, was working from a ladder 15 feet above ground level.

7. Roemer was not wearing a safety belt and was not tied off while working from the ladder. He was exposed to a serious fall hazard of 15 feet which could have resulted in death or serious physical harm.

8. Respondent knew, or with the exercise of reasonable diligence should have known of the falling hazard to which Roemer was exposed.

9. On April 27, 1976, respondent’s foreman, Berenger, was working from a bracket scaffold 15 feet above ground level. The scaffold was 20 inches wide, 15 feet long and supported at each end by a bracket suspended from a structural beam.

10. The outward side of the scaffold was not guarded by standard guardrails.

11. Berenger was wearing a safety belt which was not tied off to a safety line while he was working from the scaffold.

12. A 15-foot fall by Berenger from the outward unguarded side of the scaffold could have resulted in death or serious physical harm.

13. Respondent knew or with the exercise of reasonable diligence should have known of the serious hazardous condition of the scaffold from which Berenger was working.

14. Respondent has a safety policy which requires all of its employees to wear and use safety belts and lines. There is no evidence that this policy is enforced by respondent.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. § 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On April 27, 1976, respondent was in serious violation of standards 29 CFR §§ 1926.28(a) and 1926.451(m)(6) for its failure to protect its two employees from fall hazards of 15 feet.

4. Under the circumstance of this case with due consideration of the statutory factors of section 17(j) of the Act, the proposed penalties of $500.00 for each of the two serious violations is reduced to $200.00 each.

5. On May 4, 1976, respondent was in nonserious violation of 29 CFR § 1926.25(a) for exposing one of its employees to a tripping hazard created by debris. No penalty is proposed for this violation and none is assessed.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation (No. 1) for a serious violation of 29 CFR § 1926.28(a), and the citation (No. 2) for a serious violation of 29 CFR § 1926.451(m)(6) are affirmed, it is further

ORDERED that the notification of proposed penalty is amended by reducing the $500.00 proposed penalties for each of the serious violations to $200.00 each, and as amended, is affirmed, it is further

ORDERED that the citation (No. 1, item 1) for the nonserious violation of 29 CFR § 1926.25(a) is affirmed. No penalty is assessed for this violation.

JEROME C. DITORE

JUDGE, OSHRC

Dated: March 7, 1977

New York, New York

[1] Former Commissioner Moran issued a general direction for review in this case. In response, Wander filled a letter with the Commission stating that it would rely upon its post-hearing brief in which it had set forth its position with respect to the alleged violations subsequently affirmed by the judge. The Secretary did not file a brief.

[2] The standard reads in pertinent part:

§ 1926.451 Scaffolding.

(m) Carpenters’ bracket scaffolds.

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

[3] Wander contends that there was no fall hazard from the scaffold because Berenger received adequate protection from the end brackets and beam to which the scaffold was attached. However, exhibit C-1 clearly establishes that the brackets and beams provided no protection against a fall from the front of the scaffold. Consequently, we reject this contention.

[4] The alleged violation of § 1926.451(m)(6) was characterized as serious. As a result, the Secretary must prove as part of his burden of proof that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. See § 17(k) of the Act, 29 U.S.C. § 666(j). In addition, the Secretary must prove that there exists a substantial probability of death or serious injury in the event of an accident. See § 17(k) of the Act, 29 U.S.C. § 666(j).

[5] Even if we accepted Wander’s contention that safety belts provide equivalent protection to guardrails, we would still find Wander in violation of the standard because Berenger was not tied off. Wander contends, based on Berenger’s testimony that Berenger and another employee who was working from a ladder had been tied off and had untied to descend to the ground to eat lunch. In contrast, the compliance officer testified that both employees were working without tied off safety belts when he first observed them and that they descended from their work stations at his request. The judge resolved this conflict by entering credibility findings based on the compliance officer’s testimony. We note that exhibit C-1 supports the compliance officer’s testimony that the employees were working without tied off safety belts. Consequently, we defer to the judge’s credibility finding. See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ¶ 23,033 (No. 16162, 1978). Again assuming the equivalence of guardrails and safety belts, Wander has not established the defense of unpreventable employee misconduct because it has not proven that its workrule requiring the use of safety belts was enforced. See B-G Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD ¶20, 744 (No. 4713, 1976) and discussion, infra.

[6] Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD ¶ 20, 576 (No. 4537, 1976), does not require a contrary result. In that case, the employer was cited for an alleged violation of 29 C.F.R. § 1926.500(d)(1). That standard provides that an open-sided floor or platform shall be guarded with ‘a standard railing, or the equivalent.’ The Commission held that safety belts are not equivalent protection to guardrails within the meaning of § 1926.500(d)(1), and limited that holding to the interpretation of ‘equivalent protection.’ In the instant case, the cited standard, § 1926.451(m)(6), permits the use of material providing equivalent protection to lumber, but permits no substitution for the use of guardrails. Cf., Dick Corp., 79 OSAHRC ——, 7 BNA OSHC 1951, 1979 CCH OSHD ¶ 24,078 (No. 16193, 1979) [§ 1926.451(d)(10) permits use of guardrails constructed from materials providing equivalent protection to lumber, but does not permit use of means of fall protection other than standard guardrails.]

[7] The standard provides as follows:

§ 1926.28 Personal protective equipment.

[8] Wander also argues that Roemer untied his safety belt because he was descending the ladder to go to lunch. We reject this argument on the basis of the judge’s credibility determinations. See note 5 supra.

[9] The standard provides as follows:

§ 1926.25 Housekeeping.

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

[10] We reject Wander’s contention that no violation should be found because Roemer was attempting to clean up the debris. The judge found that Roemer was not cleaning the debris, but was walking through the passageway to obtain materials. In support of the judge’s finding, we note that Berenger testified that Roemer was attempting to obtain materials. Exhibits C-3 and C-4 show Roemer walking through the debris. Consequently, we defer to the judge’s credibility finding. See Asplundh Tree Expert Co., supra note 5.

[11] In this case, requesting the general contractor to abate the hazard would have been an appropriate alternative measure because of the low gravity of the violation. See J. H. MacKay Elec. Co. & U.S. Eng’r Co., 78 OSAHRC 77/B10 n. 6, 6 BNA OSHC 1947 n. 6, 1978 CCH OSHD ¶ 23,026 n. 6 (Nos. 16110 & 16111, 1978). Moreover, there is no evidence showing that the responsible contractor would not have cleaned the area, if requested.

[12] The compliance officer’s opinion that a hazard existed was unsupported by an explanation of the nature of the hazard, by any evidence demonstrating that the compliance officer was familiar with incidents in which persons had fallen from ladders, or by any evidence demonstrating that the employee here was subjected to any special hazard not ordinarily encountered by persons working on ladders.

[13] Section 1910.28(a)(1) provides:

Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction, except that ladders used for such work shall conform to 1910.25 and 1910.26.

[14] Reference Key: T. refers to pages of minutes of hearing.

[15] The pleadings are conformed to the proof to allege the date for the two serious violations as April 27, 1976 instead of May 17, 1976, and to allege the date of May 4, 1976 for the nonserious debris violation.