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. 01-1165
BURCH CONSTRUCTION, INC., and its successors,	
Respondent.

	

APPEARANCES:

	For the Complainant:
		Jason G. Vorderstrasse, Office of the Solicitor, U.S. Department of Labor, Los Angeles, California

	For the Respondent:
		Robert P. Stricker, Stricker & Ball, San Diego, California

Before: Administrative Law Judge: Benjamin R. Loye



*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, Burch Construction, Inc., and its successors (Burch), at all
times relevant to this action maintained a place of business at Miramar
Marine Air Station, San Diego, California, 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 April 23-25, 2001 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of Burch's Miramar work site. As a result
of that inspection, on June 15, 2001 Burch was issued a citation
alleging a repeat violation of §1926.501(b)(1)of the Act together with a
proposed penalty. By filing a timely notice of contest Burch brought
this proceeding before the Occupational Safety and Health Review
Commission (Commission).

On March 8, 2002, a hearing was held in San Diego, California. At the
hearing, Complainant admitted that Burch had not previously been cited
for a violation of §1926.501(b)(1), and that the subject citation should
not have been classified as a "repeat" violation. The classification and
proposed penalty were adjusted accordingly (Tr. 95-101; Exh. C-9). As no
amended Complaint was filed, Complainant's representations at hearing
are construed as a motion to amend the June 15, 2001 citation. Said
citation is amended to conform to the understanding of the parties. The
parties have submitted briefs on the issues as amended and this matter
is ready for disposition.

*Alleged Violations*

Citation 1, item 1, as amended, alleges that:



29 CFR 1926.501(b)(1): Each employee engaged in roof activities on low
slope roofs, with unprotected sides or edges 6 feet or more above lower
levels was not protected from falling by guardrail systems, safety net
systems, personal fall arrest systems.



a) Building 5534 & 5535 Miramar Marine Air Station: Employees working on
roof 35 feet high and within one foot of edge was not protected by a
guard rail system, or personal fall arrest system.



/Facts/

On the morning of April 23, 2001, OSHA Compliance Officer (CO) Marion
Moore arrived at Burch's Miramar work site, the rooftop of barracks 5534
and 5535 (Tr. 17-19). Moore testified that when he arrived, he parked
his car 50 to 75 feet from the barracks. From his location he could see
two Burch employees working on the roof, which was approximately 35 feet
above the ground (Tr. 20, 32, 70). One of the men, Gilberto Ribera,
remained within two to three feet of the edge for approximately 20
minutes while Moore watched (Tr. 33). The other, Adan Baltazar, was
bringing materials out from the center of the roof, and was exposed to
the edge for only about five minutes of that time (Tr. 33-34). Moore
testified that though the men were wearing harnesses, it did not appear
that the two men had lanyards attached to the D rings on the back on
their harnesses (Tr. 21). Between 8:27 and 8:29 a.m. Moore took three
photographs in which no lanyards are visible (Tr. 24, 39, 43, 107; Exh.
C-3 through C-5). At 8:29 and 8:30 Moore took two more pictures, in
which there do appear to be lanyards attached to the workers' harnesses
(Tr. 22, 44-51, 107). Nonetheless, Moore met with Ribera and Baltazar,
together with Burch's supervisor, James Kruse (Tr. 55, 59). Moore
testified that he asked the workers why they were not tied off.
According to Moore, the men told him that they forgot to hook up (Tr. 59).

On cross-examination, Moore admitted that his testimony was inconsistent
with his written report of the incident, recorded on May 7, 2001. In his
written report Moore wrote that "[i]mmediately when the employees saw me
they reached down and hooked their restraint lanyard to the fall
protection cable on top of the building" (Exh. C-1). At the hearing
Moore admitted that he never saw the employees hooking up their lanyards
(Tr. 118-20). Moore wrote that the employees hooked up their lanyards to
explain the appearance of lanyards in the photos taken after 8:28 a.m.
(Tr. 120). In addition, in his report, Moore wrote that the two
employees who were not tied off were observed moving from one part of
the building to another, in direct contradiction to his testimony at
trial, in which he stated that one of the unrestrained men, Ribera,
remained on the edge of the roof for the entire 20 minutes Moore
observed him (Exh. C-1).

James Kruse testified that he observed both Ribera and Baltazar on the
roof until approximately 7:15 a.m. the morning of the inspection (Tr.
179, 182). According to Kruse, both were tied off (Tr. 179). Kruse did
not understand why Baltazar told Moore he forgot to tie off. Kruse
stated that there was a lot of confusion, and that Baltazar did not
speak much English (Tr. 181-82).

Jeff Sullivan, the Project Superintendent on the Miramar job (Tr. 139),
testified that he inspected the roof of barracks 5534 and 5535 at 7:15
a.m. on the morning of the OSHA inspection (Tr. 149). Sullivan testified
that the Burch employees on the roof were all tied off to the lifeline
at that time (Tr. 149). Sullivan stated that the lifelines might not
have been immediately visible to the naked eye, or have shown up in
photographs because of the glare from the sun (Tr. 162). Sullivan was
present when Moore questioned the Burch laborers, and stated that he
told Moore that Adan Baltazar was not a native English speaker (Tr.
157). Sullivan did not believe that Baltazar understood Moore's
questions (Tr. 157-58).

Adan Baltazar, a Spanish speaker, testified, through an interpreter,
that he was tied off the morning of the OSHA inspection (Tr. 136).
Baltazar admitted that there were times when he unhooked his lanyard to
move away from the edge of the building to get materials, but stated
that he was always tied off when he was near the edge (Tr. 137).
Baltazar could not recall telling Moore that he forgot to tie off (Tr.
136).

Gilberto Ribera testified that he was attached to his lifeline the
entire morning of the OSHA inspection (Tr. 172). Ribera confirmed that
Baltazar was tied off except when he moved away from the edge of the
building to get materials (Tr. 172-75).

/Discussion/

The cited standard provides:

/Unprotected sides and edges. /Each employee on a walking/working
surface (horizontal and vertical surface) with an unprotected side or
edge which is 6 feet (1.8m) or more above a lower level shall be
protected from falling by the use of guardrail systems, safety net
systems, or personal fall arrest systems.

In order to prove a violation of section 5(a)(2) of the Act, the
Secretary must show by a preponderance of the evidence that (1) the
cited standard applies, (2) there was a failure to comply with the cited
standard, (3) employees had access to the violative condition and (4)
the cited employer either knew or could have known of the condition with
the exercise of reasonable diligence. /See, e.g., Walker Towing Corp./,
14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29,239, p. 39,157 (No.
87-1359, 1991). In this case Complainant failed to carry its burden of
proof.

The photographic evidence in this case is inconclusive at best.
Complainant's CO, Moore, admits that in his later photographs, which
were taken within a minute of the earlier photographs, the cited
employees are tied off. Moore admits that he never saw either of the
cited employees hook up their lanyards during those unrecorded seconds.
The most plausible explanation for Moore's failure to observe the men
hooking up is that the men were, in fact, hooked up the entire time.
That the lanyards are indiscernible in the earlier photographs was
reasonably explained by the project superintendent, Jeff Sullivan, who
pointed out that the lanyards are difficult to see with the sun behind
them. Additional portions of Moore's testimony at the hearing did not
correspond to his notes of the inspection. At the hearing, Moore stated
that one of the unrestrained employees remained at the edge of the roof
for 20 minutes; in his notes he stated that both unrestrained employees
were moving about the roof. Finally, though Sullivan, Kruse, and Ribera
agreed that Baltazar told Moore he forgot to tie off, all pointed out
that Baltazar's English is poor. At the hearing, Ribera and Baltazar
both testified that they were tied off whenever they were near the
roof's edge.

Given the inconsistent nature of Moore's account and employee Baltazar's
poor English, this judge cannot find, by a preponderance of the
evidence, that the cited standard was violated. Citation 1, item 1 is,
therefore, dismissed.

*ORDER*

1. Citation 1, item 1, alleging violation of §1926.501(b)(1) is VACATED.



/s/

Benjamin R. Loye

Judge, OSHRC



Dated: May 22, 2002