United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1244 North Speer Boulevard, Room 250

Denver, Colorado 80204-3582





SECRETARY OF LABOR, 	
Complainant,

	
v.

	OSHRC DOCKET NO. 01-0708
BOB ANDERSON BUILDERS, INC.,	
Respondent.

	



APPEARANCES:



For the Complainant:

Lisa R. Williams, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois



For the Respondent:

Timothy Costello, Esq., M. Pia Torretti Gekas, Esq., Krukowski &
Costello, Milwaukee, Wisconsin



Before: Administrative Law Judge: Robert A. Yetman



*DECISION AND ORDER*



This proceeding arises under the Occupational Safety and Health Act of
1970 (29 U.S.C. Section 651 /et seq./; hereafter called the "Act").

Respondent, Bob Anderson Builders, Inc. (Anderson), at all times
relevant to this action maintained a place of business at 400 E.
Centennial, Oak Creek, Wisconsin, where it was engaged in construction.
Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.

On January 24, 2001 an Anderson employee was severely injured when he
fell from a roof at Anderson's Oak Creek work site. The Occupational
Safety and Health Administration (OSHA) commenced an inspection and, as
a result of their investigation, Anderson was issued citations alleging
violations of the Act together with proposed penalties. By filing a
timely notice of contest Anderson brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).

On November 7-8, 2002, a hearing was held in Milwaukee, Wisconsin. At
the hearing, Complainant moved to amend Willful citation 2, items 1 and
2, which allege violations of §1926.501(b)(11) and .503(a)(1),
respectively, to allege, in the alternative, violations of
§1926.501(b)(13). That motion was granted (Tr. 315, 319). The parties
have submitted briefs on the issues, as amended, and this matter is
ready for disposition.

*Facts*

The Oak Creek construction project is a multi-structure 97 unit
independent care retirement facility (Tr. 38). Anderson, a framing
subcontractor, began work at the Oak Creek site in September of 2000
(Tr. 38, 50). By January 24, 2001 Anderson had completed the
installation of roof sheathing on the cited four and one half story
(including the basement and attic) structure, and was engaged in
installing dormers (Tr. 22, 78, 292-293; Exh. C-9K, C-9J). Travis
Decorah, a carpenter with Anderson, testified that he intended to finish
up the dormers on the north side roof that morning (Tr. 125, 132). When
he arrived At 7:00 a.m. the subject roof was covered with frost. Decorah
climbed up to sweep the frost from the area where he would be working
using a "scuttle hole" left open in the sheathing to provide roof access
(Tr. 14, 22-23, 140). Boards nailed to the roof joists provided rungs
for climbing the joists (Tr. 32-33, 116, 151, 190; Exh. C-9B, C-9D).
When Paul Poulakos, a new Anderson employee, arrived on the work site
shortly thereafter, Daniel Naffier, Anderson's foreman (Tr. 157), told
him to help Decorah on the roof (Tr. 18, 91). Poulakos located Decorah,
and climbed up through the roof hole to join him (Tr. 20, 100, 115-16).
Poulakos slipped on the frost, slid feet first down the roof and fell
from the eave to the ground, approximately 32-34 feet below, sustaining
serious injuries (Tr. 13, 21, 59, 71). The only fall protection in use
on the roof was a single row of slide guards, 2 x 6 inch boards nailed
at a 90 angle into 2 x 4 inch boards that were, in turn, nailed into the
roof (Tr. 18, 55, 129, 197; Exh. C-9J). Portions of the slide guard had
been cut away to make room for the installation of the dormers (Tr. 20).
Poulakos slid through one of the unguarded areas (Tr. 20-21) and fell
32-34 feet to the ground sustaining multiple fractures, a concussion and
internal injuries (Tr. 107).

*Alleged Violation of §1926.1051(a)*

*Serious citation 1, item 1 *alleges:

29 CFR 1926.1051(a): Stairways or ladders were not provided at all
personnel points of access where there was a break in elevation of 19
inches (48 cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist was provided:



(a) On or about January 24, 2001, Oak Creek, Wisconsin employees who
were accessing the roof of a 6:12 pitch roof were climbing the trusses
and pulling themselves up onto the roof through a hole. The employer did
not provided a safe means of access, such as a portable extension
ladder. This condition exposed the employees to a potential fall hazard
while accessing the roof.



The cited standard provides:

A stairway or ladder shall be provided at all personnel points of access
where there is a break in elevation of 19 inches (48 cm) or more, and no
ramp, runway, sloped embankment, or personnel hoist is provided.



/Facts/

It is undisputed that employees accessed the cited roof through a
scuttle hole. Since no ladder was provided, employees climbed boards
nailed to the roof trusses to access the hole. Travis Decorah testified
that there was a ladder on site; however, it was easier to climb the
trusses (Tr. 152). Foreman Naffier was aware of the practice and
considered it standard procedure (Tr. 190). Naffier was not aware, until
after the OSHA inspection, that ladder access was required under OSHA
regulations (Tr. 191).

It is well settled that the employer's lack of knowledge is a defense to
an established violation only when the employer was unaware of the
/conditions/ in their workplace; /Ormet,/14 BNA OSHC 2134, 1991-93 CCH
OSHD ¶29,254 (85-531, 1991). Ignorance of the /standards/ does not
excuse noncompliance. An employer has a duty to inquire into the
requirements of the law. /Peterson Brothers Steel Erection Company/, 16
BNA OSHC 1196, 1991-93 CCH OSHD ¶30,052 (No. 90-2304, 1993), /aff'd./ 26
F.3d 573 (5th Cir. 1994).

/Discussion/

Scott Brooks, the OSHA Compliance Officer who conducted the inspection
of the Oak Creek site (Tr. 281), testified that employees climbing the
trusses could have slipped and fallen (Tr. 304). Brooks testified that
the violation was "serious," and explained how the proposed penalty of
$3,500.00 was calculated (Tr. 313). No evidence relating to the severity
of any possible injury was introduced.

According to §17k of the Act, a violation is considered serious if the
violative condition or practice gives rise to a "substantial
probability" of death or serious physical harm. In his testimony
COBrooks specified neither the possible fall distance from the roof
joists to the attic floor, nor the type of injury which might result
from a fall. In the absence of any evidence establishing the nature of
probable injuries, it cannot be determined whether the cited violation
is serious as defined by the Act. In the absence of that evidence, the
violation must be affirmed as "other than serious" and a penalty of
$100.00 is assessed.



*Alleged Violation of §1926.501(b)(11)*



*Willful citation 2, item 1* alleges:



29 CFR 1926.501(b)(11): Guardrail systems with toeboards, safety net
systems, or personal fall arrest system were not used to protect
employees from falling from a steep roof with unprotected sides and
edges 6 feet or more above lower levels.



(a) On or about January 24, 2001 at Oak Creek, employees were working on
the 6:12 pitch roof and were not protected by guardrail systems, safety
net systems or a fall arrest system. This condition exposed the
employees to a potential fall hazard of approximately 32 feet to the
ground level.



The cited standard provides:



(11) /Steep roofs./ Each employee on a steep roof with unprotected sides
and edges 6 feet (1.8m) or more above lower levels shall be protected
from falling by guardrails systems with toeboards, safety net systems,
or personal fall arrest protection.



/Facts/

Foreman Naffier testified that Anderson intended to use metal railings
on brackets for fall protection on the Oak Creek site (Tr. 162). At some
point during construction, however, it was decided that a combination of
guardrails and slide guards would be used instead (Tr. 184-85). On
December 20, 2001, excess guardrails, /i.e.,/ all guardrails not
currently in use, were returned to the manufacturer (Tr. 183-84).
Naffier testified that on January 24 all brackets and rails on the site
were in use, either on more steeply pitched, /i.e./12:12, roofs, or in
areas adjacent to the steeper slopes. Slide guards were implemented on
6:12 pitch roofs (Tr. 162-66). As noted above, a continuous slide guard
originally ran the length of the cited roof near the eave (Tr. 197-98).
However, the slide guard was cut back to allow for the installation of
dormers on the lower roof, leaving unguarded the two and one half foot
space through which Paul Poulakos fell (Tr. 198, 210; Exh. C-9J).

Bob Anderson, Anderson's president, testified that it is Anderson's
written policy to use guardrails in front of window, door and stair
openings, establish controlled access areas and supply monitors for
employees working on flat decks (Tr. 283; Exh. C-7). Mr. Anderson stated
that there is a further, unwritten, fall protection policy permitting
the use of slide guards in lieu of conventional fall protection while
engaged in "residential" construction (Tr. 255, 258). Mr. Anderson
testified that he believed slide guards were an acceptable fall
protection option on the Oak Creek site (Tr. 239). However, Anderson
admitted that the precautions taken at the Oak Creek site did not comply
either with Respondent's written fall protection policy, or with OSHA
regulations governing "commercial" construction (Tr. 277).

/Discussion/

Anderson's defense is based on an OSHA publication, OSHA Directive STD
3-0.1A, Interim Fall Protection Compliance Guidelines for Residential
Construction. The OSHA instruction modifies 29 CFR §1926.501(b)(13)'s
fall protection requirements for residential construction, and sets
forth alternative fall protection procedures for employers whose
employees are engaged in certain described activities. Anderson
maintains that on January 24, 2002 it was engaged in residential
construction, and that §1926.501(b)(13) and STD 3-0.1A governed its
activities. The Secretary maintains that the "commercial" construction
standard for steep roofs, §1926.501(a)(11) was applicable to the cited
structure at Anderson's Oak Creek work site.

In pertinent part, Directive STD 3-0.1A states:

8. AVAILABILITY OF ALTERNATIVE PROCEDURES. Alternative procedures are
available to employers who are (1) engaged in residential construction,
and (2) doing one of the listed activities.



1. Definition of "residential construction."

1. For purposes of this instruction, an employer is engaged in
residential construction where the working environment, materials,
methods and procedures are essentially the same as those used in
building a typical single-family home or townhouse.

2. Residential construction is characterized by:

• Materials: Wood framing (not steel or concrete); wooden floor joists
and roof structures.

• Methods: Traditional wood frame construction techniques.

* * *

2. Listed Activities and Alternative procedures.

There are four groups of residential construction activities for which
alternative fall protection plans are available. Each group has its own
set of alternative procedures and will be discussed in Sections IX
through XII. The groups are:



1. GROUP 1. Installation of floor joists, floor sheathing, and roof
sheathing; erecting exterior walls; setting and bracing roof trusses and
rafters.

* * *



9. ALTERNATIVE PROCEDURES FOR GROUP 1: INSTALLATION OF FLOOR JOISTS,
FLOOR SHEATHING, AND ROOF SHEATHING; ERECTING EXTERIOR WALLS; SETTING
AND BRACING ROOF TRUSSES AND RAFTERS.

The alternative measures for this group are set out in Appendix E to
Subpart M. Appendix E requires the employer to implement a Fall
Protection Plan. Such a plan must lay out the safest procedures to be
followed at the work site to prevent falls. Although the plan need not
be in writing, it must be communicated to all employees on site who
might be subject to fall hazards.



NOTE: Height Limitation: The Appendix E plan may only be used on
structures up to three and a half stories or 48 feet (including
basement, two finished levels, attic). The 48' measure is from the base
of the building, at the lowest ground level (including any excavation),
to the point of greatest height.



It is undisputed that the Oak Creek project utilized wood construction.
The cited structure consisted of wooden floor and roof trusses, 2 x 4
and 2 x 6 studded walls (Tr. 217). The parties stipulate that the peak
of the cited roof was 43 feet from the first floor and the basement
added another 9 feet (Tr. 295-296). Scott Brooks testified that the
cited structure had three finished stories in addition to the attic and
basement, and, according to the blueprints, the structure measured 54
feet from the foundation to the roof peak (Tr. 293-94).

The Secretary maintains that the Oak Creek project exceeded the height
limitations set forth in Directive 3-0.1A and that the alternative
measures allowed under the directive were, therefore, unavailable to
Anderson. The evidence supports this conclusion. The plain language of
the directive limits its application to buildings under "three and one
half stories or 48 feet (including the basement, two finished levels,
attic)." Anderson argues the Oak Creek structure was three and one half
stories, within the height limitation set out in the residential
directive. Anderson's sole support for its position is its contention
that that the three and one half story limitation within the directive
stands alone and is not modified by the parenthetical reference to a
basement, two finished levels and an attic. The Secretary disagrees with
Anderson's interpretation, pointing to the reference to two "finished"
levels and to the final sentence of the paragraph, which describes how
the 48 feet are to be measured, /i.e./, from the structure's foundation
"including any excavation" to its highest point. It is concluded that
the directive's alternative provisions for measuring a structure's
height are consistent and unambiguous. The Secretary's interpretation
is, therefore, reasonable, and must be accepted. The interpretation of a
standard by the promulgating agency is controlling unless "clearly
erroneous or inconsistent with the regulation itself." /Udall v.
Tallman/, 380 U.S. 1, at 16, 87 S.Ct. 792, at 801 (1965); /Nooter
Construction Co./, 16 BNA OSHC 1572, 1994 CCH OSHD ¶29,729 (No. 91-237,
1994). Deference must be given to the Secretary's interpretation, if
reasonable. /Martin v. OSHRC (CF&I Steel Corp.)/, 111 S.Ct. 1171, 1179
(1991).This judge finds that the standard originally specified,
§1926.501(b)(11), is applicable to the fall hazard. Anderson admits it
did not comply with the fall protection standard cited.^(1) <#N_1_> The
evidence establishes that Anderson's employees were exposed to the
resulting hazard. The violation is established.

*Willful*

/Facts/

James Kasten, the project manager for Wimmer Brothers Development, the
general contractor for the project at the Oak Creek site (Tr. 36),
stated that in the course of his site inspections he contacted Anderson
on four separate occasions about fall protection hazards that he
observed (Tr. 25-26, 39; Exh. C-15, C-16, C-17, C-18). On January 2,
2001, Kasten wrote in his log that Anderson was not using fall
protection while working on the west roof (Tr. 43; Exh. C-15). Kasten
remembered calling Dan Naffier and asking him to remove his men from the
hazardous situation (Tr. 43). On January 5, 2001, Kasten again noted in
his log that Anderson was not using fall protection (Tr. 46; Exh. C-16).
Kasten testified that he called Anderson's office and spoke to Dan
Naffier, asking him to take care of the fall hazard (Tr. 46-47). On
January 8, 2001, Kasten noted once again that Anderson was not using
fall protection; again he called Dan Naffier requesting that he abate
the hazard (Tr. 47; Exh. C-17). Finally, Kasten testified, on January 23
he called Anderson to warn them that the roof sheathing crew was working
without fall protection (Tr. 49-50; Exh. C-18). Kasten stated that he
spoke to Dan Naffier who assured him that Anderson had a fall protection
program and they were complying with it (Tr. 52, 81). Kasten also spoke
to Bob Anderson on that date and told him that there had been a number
of safety issues on the site. Anderson assured him that he was taking
care of everything (Tr. 51).

Naffier admitted that Kasten came to him on January 2, 5, and 8, 2001
with concerns about Anderson employees on the roof. According to
Naffier, Kasten was worried about employees working at heights, but did
not say what steps he would have liked Naffier to take. According to
Naffier, Kasten said only that he wouldn't want to see anyone hurt (Tr.
192-94). Naffier remembered that Kasten specifically mentioned
guardrails on January 23, but once again, did not require that Naffier
take any particular precautions (Tr. 195). Naffier testified that he
spoke with Bob Anderson after Kasten talked to him. Mr. Anderson assured
Naffier that Anderson was meeting safety guidelines for residential
construction (Tr. 180, 182, 269, 271).

Mr. Anderson testified that January 23, 2001 was the first day he became
aware of Kasten's concerns (Tr. 268). Mr. Anderson stated that he
developed Anderson's fall protection policy from "things that [he had]
read, things that [he] was able to pick up in the industry from other
general contractors that [he] respected, possibly their - their safety
people" (Tr. 249). Mr. Anderson did not possess, and did not provide Dan
Naffier with a copy of the OSHA STD 3-0.1A (Tr. 260). Mr. Anderson had
never read the residential directive (Tr. 273). In fact, Mr. Anderson
did not realize that the residential directive existed until after the
January 24, 2001 accident (Tr. 274). Bob Anderson's belief that slide
guards were permissible fall protection for residential construction
came solely from an informal telephone conversation he had with his son
regarding a similar residential care facility (Tr. 373-75, 383, 386-88).

Bob Anderson admitted that in the past five years, two other Anderson
employees fell from heights suffering injuries. One employee injured his
shoulder when he fell while leaning over a deck (Tr. 231). In 1999,
another employee fractured a vertebrae in his neck when a brace was
removed from a roof truss and the roof collapsed (Tr. 232-35; Exh.
C-25). Lastly, Paul Poulakos was employed by Anderson nine days prior to
the accident (Tr. 86, 90). Poulakos had never worked as a carpenter and
had worked on a roof only once prior to the day of the accident (Tr. 91)

/Discussion/

The Commission has defined a willful violation as one "committed with
intentional, knowing or voluntary disregard for the requirements of the
Act or with plain indifference to employee safety." /Valdak Corp./, 17
BNA OSHC 1135, 1136, 1993-95 CCH OSHD ¶30,759, p. 42,740 (No. 93-239,
1995), /aff'd,/ 73 F.3d 1466 (8th Cir. 1996). A willful violation is
differentiated by the employer's "heightened awareness" of the
illegality of the violative conduct or conditions. /Propellex
Corporation (Propellex), /18 BNA OSHD 1677, 1999 CCH OSHD ¶31,792 (No.
96-0265, 1999), In /Propellex/ the Commission provided examples of
"heightened awareness," citing cases where an employer has been
previously cited for violations of the standards in question, or has
otherwise been made aware of the requirements of the standards, and is
on actual notice that violative conditions exist. /Id. /

The evidence in this case establishes that Anderson was aware of the
violative conditions, and intentionally created them when the decision
was made to provide no fall protection other than a single discontinuous
row of slide guards just above a 32-34 high eave. While it is true that
a finding of willfulness is not justified if an employer has made a good
faith effort to comply with a standard, the test of good faith for these
purposes is an objective one. The employer's opinion that a violative
condition conformed to the requirements of the OSHA standard, as
asserted by Respondent in this case, must have been reasonable under the
circumstances. /Calang Corp./, 14 BNA OSHC 1789, 1987-90 CCH OSHD
¶29,080 (No. 85-319, 1990). An employer is not spared from a finding of
willfulness merely because it took some measures, no matter how minimal,
to enhance employee safety. /J.A. Jones Construction Co./, 15 BNA OSHC
2201, 1991-93 CCH OSHD ¶29,964 (No. 87-2059, 1993).

This record does not support the conclusion that Anderson had a good
faith belief that it was either conforming to OSHA regulations, or
providing adequate fall protection for its employees. Respondent failed
to comply with its fall protection program because of information
obtained during an informal telephone conversation between Mr. Anderson
and his son. Mr. Anderson made no effort to contact OSHA or verify that
the information was accurate by contacting qualified safety
professionals. Notwithstanding his foreman's concern as a result of
repeated warnings from the general contractor about employees being
exposed to fall hazards, Bob Anderson made no attempt to ascertain
whether the fall protection at the work site complied with either
residential or conventional fall protection standards. Mr. Anderson's
dismissal of the concerns of the general contractor and of his own
foreman demonstrates a conscious and deliberate disregard for the
requirements of the Act, and for the safety of his employees. Moreover,
the fall protection in use at the Oak Creek site was tragically
inadequate under the cited conditions. The eaves of the steeply sloped
roof were 32-34 feet off the ground, and the roof was covered with frost
or snow. Mr. Poulakos, the newly hired and inexperienced employee
involved in the January 24, 2002 incident, was sent onto the roof
unsupervised and untrained. The evidence in the record establishes that,
by failing to ensure adequate fall protection for untrained personnel
under such adverse conditions, Anderson's supervisory personnel
demonstrated, at the least, plain indifference to employee safety. The
Secretary has established that the cited violation was willful.

/Penalty/

All of Anderson's roofers were exposed to the cited hazard for the
duration of the sheathing project. The item is clearly serious, in that
a fall from a height of 32-34 feet, as demonstrated in this case, would
undoubtedly result in serious injury, and/or the death of an affected
employee. The probability of an accident occurring was properly deemed
high, because an accident involving serious injuries actually occurred.
In computing the penalty CO Brooksoriginally proposed a gravity based
penalty of $70,000.00. Brooks testified that Anderson was entitled to a
50% reduction in the penalty due to its small size. Bob Anderson
testified that Anderson employs between 28 and 38 employees, and grosses
between 2 and 2.4 million dollars a year (Tr. 250). CO Brooks testified
that he reduced the gravity based penalty by an additional 10% because
Anderson had no other citations within the previous three years (Tr.
313). A final penalty of $28,000.00 was proposed for this item. The
proposed penalty is deemed appropriate and is assessed.

*Alleged Violation of §1926.503(a)(1)*

*Willful citation 2, item 2* alleges:

29 CFR 1926.503(a)(1): The employer did not provide a training program
for each employee who might be exposed to fall hazards in accordance
with CFR 1926 Subpart M-Fall Protection.



(a) On or about January 24, 2001, Oak Creek Wisconsin employees working
on the 6:12 pitch roof who were installing the trusses and sheathing
were not trained on the hazards associated with this work. This
condition exposed the employees to a potential fall hazard of
approximately 32 feet.



The cited standard provides:



(a) /Training Program./ (1) The employer shall provide a training
program for each employee who might be exposed to fall hazards. The
program shall enable each employee to recognize the hazards of falling
and shall train each employee in the procedures to be followed in order
to minimize these hazards.



/Facts/

Bob Anderson admitted that his company has no formal fall protection
training (Tr. 235, 248). Anderson's written fall safety policy consists
of a two page fall protection plan describing fall protection policies
on commercial construction. According to Mr. Anderson, the plan requires
fall protection when working above six feet, and calls for rails,
scaffolding, netting or harnesses (Tr. 254-55; Exh. C-7, C-8). Fall
safety policies are communicated during company breakfasts and foremen's
meetings. During these meetings, Mr. Anderson relays additional safety
information he picks up through "other sources" (Tr. 235).

Dan Naffier testified that he never received any formal classroom
training (Tr. 159). His training consisted of an unspecified number of
breakfast meetings and on-the-job training he received from his foreman
before he was promoted (Tr. 158, 160). Naffier testified that fall
protection was discussed at the breakfast meetings, though he never
received any instruction in how to erect safety lines or when guardrails
were required (Tr. 162). Harnesses and safety belts were specifically
discussed at the meetings. According to Naffier, it was Anderson's
policy to offer employees the option of using harnesses (Tr. 161).

Poulakos was the first new hire under Dan Naffier's supervision (Tr.
175). Dan Naffier testified that it was his responsibility to provide
Paul Poulakos' training (Tr. 174). Naffier gave Poulakos a copy of the
company fall protection program, had him read it, and asked him whether
he had any questions (Tr. 174, 176; Exh. C-7). Naffier stated that he
pointed out the roof and the slide guards and told Poulakos that
whomever he was partnered with would cover his instruction in more depth
(Tr. 175). Naffier acknowledged that the fall protection policy he gave
Poulakos referred only to fall protection practices on commercial
roofing jobs and that the residential fall protection methods in use at
the Oak Creek job were not mentioned anywhere in those materials (Tr.
176-77). Naffier testified that he had seen a copy of the Guidelines for
Residential Construction on another foreman's desk; however, prior to
January 24 he had never read it in its entirety, or been trained in its
contents (Tr. 200).

Travis Decorah testified that he was trained only in those OSHA fall
protection requirements that were contained in Anderson's fall
protection plan. Bob Anderson read from the plan during company
breakfasts and sent employees copies of the fall protection plan in the
mail (Tr. 126, 148, Exh. C-7). Decorah testified the plan required that
guard rails be installed on patio openings, that safety nets be
installed on commercial buildings above four stories, and that workers
be tied off above six feet (Tr. 126-27). Decorah understood, however,
that the six foot requirement applied only to work from man baskets.
Prior to the January 24, 2002 accident he never used a harness while
working on a roof (Tr. 126-27, 149). Decorah testified that he was told
slide guards were to be used for fall protection when applying roof
sheathing (Tr. 126, 129, 154). Decorah acknowledged that slide guards
were not mentioned in Anderson's written fall protection plan, but
stated that he had been told by one of the foremen, Ted Johnson, that
slide guards could be used instead of guardrails on roofs (Tr. 142-43).
Decorah testified that he primarily received his training from Dan
Naffier while on the job or from word of mouth (Tr. 125, 147-48).

Decorah testified that Dan Naffier assigned Paul Poulakos to work with
him shortly after Poulakos was hired. Decorah knew that Poulakos had not
done the work before and instructed him to be careful walking on the
roof, to stay away from sawdust, and to stay above the slide guards (Tr.
146). At the hearing Decorah testified that he did not believe Poulakos
had enough training to be working on the roof (Tr. 156).

Paul Poulakos testified that the only training he received after
Anderson hired him consisted of reading two sheets of general safety
instructions, which included some reference to fall protection, and
attending a toolbox meeting about hardhats (Tr. 87, 106; Exh. C-7).
Poulakos testified that Naffier did not provide him with any additional
instruction on fall hazards (Tr. 89). Poulakos stated that Travis
Decorah gave him on-the-job instruction, telling him not to walk
backwards, to stand above his materials, and pointing out the slide
guard (Tr. 111-12). Poulakos did not believe that his training gave him
an appreciation for fall hazards, or for the dangers associated with
working at heights (Tr. 105).

/Discussion/

The evidence establishes that neither Bob Anderson nor the supervisory
personnel involved in this matter were familiar with the alternative
fall protection standards for residential construction with which
Anderson claims to have been compliant. It is well established that
Anderson provided virtually no relevant training which would have
enabled either Paul Poulakos or Travis Decorah to recognize the hazards
created by working on a steep sloped roof, or the procedures that should
have been followed to minimize those hazards. The written safety
procedures provided Poulakos and Decorah did not relate in any way to
the procedure(s) actually used on the roof of the Oak Creek work site.
The sole fall protection method in use on the work site, /i.e.,/ an
incomplete slide guard, was not mentioned in the written plan. Although
Decorah was verbally assured by a foreman that slide guards were
appropriate fall protection for residential construction, no further
instruction on the proper use of slide guards was provided. Poulakos'
only relevant instruction consisted of general warnings to be careful
when walking and to stay above the slide guards and construction
materials. Because of the inadequacy of their training, there was no way
either Poulakos or Decorah could have recognized the deficient fall
protection provided by Anderson, or realized that more was required
under OSHA safety regulations. Because Poulakos and Decorah were not
trained to recognize and avoid the hazards associated with working on
steeply pitched roofs, in particular, fall hazards, this item is affirmed.

*Willful*

As noted above, the Commission has held that in order to establish that
a violation is willful, the Secretary must demonstrate the employer's
heightened awareness of the illegality of the violative conditions.
Again, as noted above, the Secretary may meet her burden by establishing
that the employer has been previously cited for a violation, or
otherwise been made aware of the requirements of the standards, and is
on notice that violative conditions exist. /Propellex, supra. /The
standard cited here, unlike that cited in the preceding item, is a
training standard. Non-compliance with a training standard does not
result in an obvious hazard similar to a failure to implement physical
safeguards. Respondent has never been cited for training violations or
received warnings about inadequate training from the general contractor,
as it had for inadequate fall protection. While Anderson /should/ have
realized that changing their fall protection plan would also require
changes in their training program, it is clear from the record that they
did not. Ignorance of the requirements of a standard, however, does not
establish willfulness. Where an employer fails to fulfill its
responsibilities, the Secretary must, to establish willfulness,
demonstrate that even if the employer had known of the cited standard's
requirements, it would not have cared that its conduct did not comply.
/Williams Enterprises, Inc./, 13 BNA OSHC 1249, 1986-87 CCH OSHD ¶27,893
(No. 85-355, 1987). In the absence of any evidence that Anderson was
actually aware of the deficiencies in its training program, this
violation is not shown, by a preponderance of the evidence, to have been
willful.

/Penalty/

Because the violation in this instance was not shown to be willful, the
proposed penalty of $28,000.00 is deemed excessive. However, an
evaluation of the evidence in accordance with §17(j) of the Act
establishes that the inadequacies in Anderson's training program
presented a high gravity factor and serious injury or death were the
probable result of those deficiencies. Accordingly, the maximum penalty,
in the amount of $7,000.00, is appropriate for this violation.

*ORDER*



  * Citation 1, item 1, alleging violation of §1926.1051(a) is affirmed
    as Other-than-serious and a penalty of $100.00 is assessed.
  * Willful citation 2, item 1, alleging violation of §1926.501(b)(11)
    is AFFIRMED and a penalty of $28,000.00 is ASSESSED.
  * Citation 2, item 2, alleging violation of §1926.503(a)(1) is
    AFFIRMED as a Serious violation of the Act, and a penalty of
    $7,000.00 is ASSESSED.





/s/

Robert A. Yetman

Judge, OSHRC



Dated: February 25, 2002

1. The result of this citation would not be changed by an amendment to
§1926.501(b)(13). As discussed more fully below, it is clear that
Anderson was unfamiliar with the residential construction standards, as
well as with the residential directive, and its "alternative" protective
measures fell far short of the requirements set forth in the directive.
For instance, the directive requires that the alternative fall
protection plan be supervised by a competent person who "must determine
when the roof system is stable enough to support a conventional fall
protection system anchorage. . .at that time personal fall arrest
systems must be used." (Exh C-6 ¶9.2). The roof sheathing on the cited
structure was complete. Foreman Naffier testified that a static line
could have been installed had any employee requested a harness; clearly
personal fall protection systems could have been used at this stage of
construction (Tr. 170-73). CO Brooks testified that Anderson was in
violation of almost every aspect of a compliant alternative fall
protection plan (Tr. 306-311).