___________________________________
SECRETARY OF LABOR,                :
    Complainant,                   :
                                   :
     v.                            :
                                   :
HENSEL PHELPS CONSTRUCTION CO.     :       OSHRC DOCKET NO. 00-2016
 and its successors                :
    Respondent.                    :
___________________________________:

APPEARANCES:

               Kayden B. Howard, Esq., Office of the Solicitor, U.S. Department of Labor, 
                  Kansas City, Missouri

               Robert R. Miller, Esq., Stettner, Miller & Cohn, P.C., Denver, Colorado

Before: Administrative Law Judge Sidney J. Goldstein



DECISION AND ORDER

This is an action by the Secretary of Labor to enforce a citation issued
by the Occupational Safety and Health Administration to the Respondent
for the alleged violations of safety regulations adopted under the
Occupational Safety and Health Act of 1970. The controversy arose after
compliance officers for the Agency inspected a worksite of the
Respondent in Fort Collins, Colorado, concluded that the company was in
violation of safety standards related to the construction industry, and
recommended that the citation be issued. The Respondent denied the
infractions and filed a notice of contest. After a complaint and answer
were filed with this Commission a hearing was held in Denver, Colorado.

Item 1 of the citation charged that: (1) Respondent's employees were
working on surfaces with edges six feet or more above the lower level
unprotected by guardrail, safety net or personal arrest systems (29
C.F.R. §1926.502(b)(1); (2) Respondent did not provide and install fall
protection systems before employees began work which required fall
protection (29 C.F.R. §1926.502(a)(2); (3) when a test load was applied
in a downward direction, the top edge of the guardrail deflected to a
height of less than 39 inches (29 C.F.R. §1926.502(b)(4); and (4) wire
rope used for top rails was not flagged with high-visibility material
(29 C.F.R. §1926.502(b)(9).

Item 2 of the citation alleged that employees working on surfaces were
not protected from falling through holes more than six feet above the
lower level, (29 C.F.R. §1926.501(b)(4).

At the hearing the compliance officer testified that he observed
Respondent's employees working over 25 feet above the lower level
without fall protection. As mentioned in item 1a of the citation, he
considered this situation a violation of the regulation which provides
that each employee on a walking/working surface with an unprotected side
or edge which is six feet 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.

With respect to item 1b of the citation, the officer learned that
employees installing rebar on the upper deck were directed to work on
the deck before it had properly installed guardrails. In his opinion,
this was a violation of the regulation which states that the employer
shall determine if the walking/working surfaces on which its employees
are to work have the strength and structural integrity to support
employees safely.

Item 1c of the citation involved the regulation at 29 C.F.R.
§1926.502(b)(4) which reads, in substance, that when a 200 pound test
load specified in that section is applied in a downward direction, the
top edge of the guardrail shall not deflect to a height of less than 39
inches above the walking/working level. The compliance officer was able
to push down the guardrail to a height of 17 inches, a violation of the
standard in his opinion.

The last item of citation 1 involved the regulation at 29 C.F.R.
§1926.502(b)(9). The regulation requires that if wire rope is used for
top rails, it shall be flagged at not more than six-foot intervals with
high-visibility material. The compliance officer testified that there
was no flagging material on the rope.

With respect to item 2 of the citation, the officer stated that he saw
employees on walking/working surfaces unprotected from falling through
holes more than six feet above lower levels in that there were personal
fall arrest systems, covers or guardrail systems erected around such
holes. He believed this to be a violation of the regulation at 29 C.F.R.
§1926.501(b)(4) which requires such safeguards. Upon more detailed
examination the officer agreed that one of the two holes had lumber over it.

The Respondent called upon its District Director of Safety and Health
and its Area Director to discuss the company safety program. They
related that all employees are furnished a Safety and Health Handbook.
The Respondent also has ongoing safety training, including written
statements of safety policy procedures and objectives, tool box
meetings, and special references to fall protection, guardrails and hole
covers. There are weekly safety and health meeting reports as well as
self and third party audit committee safety and health inspections. Each
foreman is furnished a library which includes safety and health
reference manuals and OSHA construction standards. To assure adequate
investigations, Respondent audits accidents, incidents and near misses.

Respondent also has a specialized Safety Training Observation Program
(STOP) which includes its employees as well as subcontractor workers.
Under this project Respondent's safety people recorded many areas where
workers performed their duties in an unsafe manner. As an example,
safety people were not surprised that 25 workers were observed working
without safety glasses. In one year the STOP program recorded 927 cases
of unsafe working instances. Very few employees were disciplined for
safety violations, although one foreman was removed for failure to
enforce safety procedures. Nevertheless, under the STOP program medical
costs were substantially reduced.

In addition, the foreman on the project testified that he worked in a
no-fall hazard area and was not exposed to any danger. Another worker
who had no fall protection was not close to any edge. He always used
fall protection and was tied off when needed. There were two floor holes
on the date of the inspection, but one had 2x4 lumber across it,
eliminating any danger. Nevertheless, he was disciplined because of
exposure to a fall of over six feet, resulting in some forfeiture of pay
and retraining along safety lines. On more detailed examination he
admitted that he worked at a floor edge without fall protection.

As pointed out in the post-hearing briefs submitted by the parties, in
order to sustain a serious violation, the Secretary must bear the burden
of proving four elements: (1) that the appropriate safety standard
applies; (2) that the employer failed to comply with the standard; (3)
that employees had access to the violative condition; and (4) that the
employer had knowledge or constructive knowledge of the condition. The
knowledge may be satisfied by proof that either the employer actually
knew, or with the exercise of reasonable diligence, could have known of
the violative condition. Constructive knowledge may be predicated on the
employer's failure to establish an adequate safety and health program to
detect hazards.

The record in this case establishes that the Secretary met the four
requirements. The Complainant proved that the safety standards applied
to the workplace situation; that the standards were violated; that
employees were exposed to the violative conditions; and that the
employer at least should have known of the prospective violations based
upon its own safety violation records.

As noted in the Respondent's posthearing brief ". . . the facts in this
matter are largely undisputed." Nevertheless, at the hearing there was
testimony from a compliance officer, two officials of the company and
its foreman on duty at the worksite at the time of the inspection. Where
there is an inconsistency between the compliance officer and the
foreman, I am placing more reliance upon the former since he was also at
the worksite, observed the infractions described in the citation, made
notes of what he saw in preparation of the citation and took pictures to
confirm the violations.

The Respondent also advances the defense of employee misconduct. The
Commission has ruled that to establish this defense the employer must
prove that it established work rules to prevent the reckless behavior or
unsafe condition from happening; that it adequately communicated the
rule to its employees; that it took steps to discover incidents of
noncompliance; and that it effectively enforced the rule whenever
employees transgressed it. Further, the employee conduct or exposure
must have resulted from "idiosyncratic," "demented," or "suicidal behavior."

In the instant matter, based upon the Respondent's STOP safety program
records, there appears to be a pattern of employee disregard of various
workplace safety rules. In this respect Respondent's safety program was
sometimes inadequately communicated and not always effective. This case
does not present a matter of a single employee acting in violation of
safety rules. Where a number of workers are operating in violation of
the Administration's safety regulations, the Respondent has failed to
establish the defense of employee misconduct.



Respondent's posthearing brief cites a number of cases in support of its
position that the case should be dismissed because of employee
unforeseen and unanticipated misconduct. Four cases were decided by the
United States Circuit Court of Appeals, namely, /Austin Building
Company/, 647 F.2d 1063; /Capital Electric Line Builders of Kansas,
Inc./ 678 F.2d 128; /Mountain States Telephone & Telegraph Company/, 623
F.2d 155; and /Pennsylvania Power & Light Company/, 737 F.2d 350.

These decisions do not help Respondent's cause. Thus, in /Austin/, the
court held for the Secretary and affirmed the citation because it
believed the evidence was sufficient to permit the Administrative Law
Judge to find that the employer's knowledge met the required standard,
i.e., that the company knew or could have known, with the exercise of
reasonable diligence, that the hazardous practice existed. The court
also remarked that the regulation makes no exception for hazardous
conditions of short duration.

The citation was vacated in the /Capital Electric Line Builders /case.
However, the facts in that case are far different than the ones at bar.
There the employee involved was a highly trained and experienced
journeyman lineman with at least ten years' experience in electrical
line construction. To become a journeyman required at least four years
of periodic classroom work and 7,000 hours of on-the-job training,
including work on energized lines. After culmination of the
apprenticeship program, the lineman took and passed an examination a
month prior to the accident. The employee's co-worker characterized Mr.
Payne as a deliberate safe worker and stated that he had never seen him
do anything unsafe while at work. Nothing contained in the record would
put the supervisor or employer on notice that he was likely to work in
violation of the standard. Contrast these facts with the current matter
where the Respondent knew of hundreds of incidents where its employees
did not work safely.

In the /Mountain States Telephone & Telegraph/ case, the court concluded
that the Commission was in error when it ruled that the employer had the
burden of proof. The Commission decision was remanded for reconsideration.

Finally, in the /Pennsylvania Power & Light Company/ case the court
vacated the citation because the OSHA Act should not be construed to
impose a civil penalty without fault on an employer "for the result of
idiosyncratic, demented or perhaps suicidal self-exposure of employees
to recognized hazards." At no time in the current matter has the
Respondent alleged that its employees acted in this manner. Thus, in the
two cases where the citations were vacated, the facts differ markedly
from the instant matter.

The Respondent's posthearing brief also refers to an Administrative Law
Judge decision and a number of Commission decisions presumably favorable
to its position. In the /Field/ case the Administrative Law Judge
dismissed the citation. However, unlike the case at bar, there was no
foreman on the job, and the company maintained an effective disciplinary
program. Its work rules were very strict. Even there the judge remarked
that if a supervisory employee were involved , the defense of
unpredictable misconduct would be more rigorous, and the defense more
difficult to establish. The current matter differs because there were
many instances of work safety rules which were not subject to discipline.

The Respondent also cited eight cases decided by the Commission. The
decision in the /Standard Glass Company/, issued in 1972, vacated the
citation because of employee misconduct. It was there held that a single
and brief hard hat violation unknown to the employer and contrary to
both employer's instructions and a company work rule which was uniformly
enforced did not necessarily constitute a violation of Section 5(a)(2)
of the Act.

Even then the Administrative Law Judge held that if there were repeated
violations of the Respondent's rules, the judge would perhaps have held
that the citation should be sustained. Thus, in this case the facts are
distinguishable from the matter under consideration.

The other cases decided by the Commission are of no value to the
Respondent because in each instance the Commission rejected the defense
of employee misconduct and affirmed the citations.

With respect to the proposed penalty, the compliance officer reviewed
the various factors outlined in the Act. The total amounted to
$7,125.00. At the hearing there seemed to be little concern regarding
this phase of the case. However, I believe that there should be a
reduction in the penalty for the violation of item 2 of the citation,
relating to one hole cover. The recommended penalty was based on two
uncovered holes, but the evidence regarding one hole revealed no danger
because of the lumber protection. Instead of a penalty of $2,625.00 for
this infraction, the penalty should be reduced to $1,625.00.





In conclusion, I find that the Respondent was in violation of the
regulations shown in citation 1a, 1b, 1c and 1d, namely 29 C.F.R.
§1926.502(b)(1), 29 C.F.R. §1926.502(a)(2), 29 C.F.R. §1926.502(b)(4)
and 29 C.F.R. §1926.502(b)(9), and the recommended penalty of $4,500.00
is AFFIRMED.

I also find that the Respondent was in violation of the regulation as
shown in citation 1,

item 2, and the penalty of $1,625.00 is AFFIRMED.





/s/

Sidney J. Goldstein

Judge, OSHRC

Dated: September 12, 2001