SECRETARY OF LAB0R,
Complainant,

v.

F. A. GRAY, INC.,
Respondent.

OSHRC Docket No. 83-0517

_DECISION
_
Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See
section 10(c) of the Act, 29 U.S.C. § 659(c).

The question in this case is whether F. A. Gray violated 29 C.F.R. §
1926.28(a) and 1926.451(i)(8) when its employees were working at the
edge of a roof and on a two-point suspension scaffold without using
safety belts. Chairman Buckley and Commissioner Cleary agree that the
citation item alleging a violation of section 1926.451(i)(8) should be
vacated. They disagree, however, on whether the employer violated
section 1926.28(a).[[1]]

_Item 2A: Section 1926.451(i)(8)--Safety Belts on Scaffold
_
Item 2A of the citation alleges that F. A. Gray violated section
1926.451(i)(8), which requires that employees working on two-point
suspension scaffolds "be protected by an approved safety "Life belt
attached to a lifeline." [[2]] A compliance officer of the Occupational
Safety and Health Administration, William Chase, observed two Gray
employees, Reider Hansen and Chuck Hansen, on a two-point suspension
scaffold without safety belts and lifelines. The employees were painting
the exterior wall of a Holiday Inn building in Portsmouth, New
Hampshire. The staging of the scaffold was 50 feet in the air. The
compliance officer testified that, if the staging fell, the employees
could be seriously injured or killed.

The parties agree that the employees should have been wearing safety
belts. They disagree, however, as to whether the employer should be held
liable for the employees' failure to do so. The Secretary argued, that
Claude Poulin, Gray's leadman at the Holiday Inn jobsite, was a
supervisory employee who knew that the employees had been working on the
scaffold without belts. According to the Secretary, Poulin's knowledge
can be imputed to Gray. Gray argues that Poulin was not a supervisory
employee. It asserts that it had established a safety rule requiring the
use of safety belts and that none of its supervisors knew that the
employees on the scaffold were not wearing their belts.

Judge Furcolo vacated the citation, agreeing with Gray that Poulin was
not a foreman whose knowledge could be imputed to the employer. The
judge also concluded that Gray had an effectively communicated and
enforced rule requiring its employees to wear safety belts when working
on the scaffold. Finding that Gray had established an unpreventable
employee misconduct defense, the judge vacated citation. Chairman
Buckley and Commissioner Cleary agree that the judge's decision should
be affirmed, although for different reasons.

Chairman Buckley would vacate the citation because the violation was
unpreventable. Because the purpose of the Act is not to punish
infractions, but to prevent safety and health hazards in the workplace,
unpreventable infractions of safety regulations by employees are not
violations of the Act by an employer. Unpreventable infractions include
those that are unknown to a reasonably diligent employer or are not
reasonably predictable or foreseeable. The Secretary contends that the
issue of a violation can be decided by determining whether Poulin can be
characterized as a supervisor whose knowledge is to be "imputed" to the
employer. By use of the legal fiction of imputation of knowledge, the
Secretary argues that the violation here was within the employer's
knowledge and therefore preventable.

The preventability of unsafe work conditions cannot be determined by
characterizing an employee as a supervisor and then applying legal
fiction to impute that employee's knowledge tot he employer. As the
United States Court of Appeals for the Third Circuit has held, "[t]he
participation of...supervisory personnel may be evidence that an
employer could have foreseen and prevented a violation through the
exercise of reasonable diligence, but it will not, standing alone, end
the inquiry into foreseeability." Pennsylvania Power & Light Co. v.
OSHRC, 737 F.2d 350, 358 (3d Cir. 1984). The conduct and knowledge of
supervisors are therefore only one of several factors that must be
considered in determining whether a condition violative of a standard
was preventable. See Todd Shipyards Corp., 85 OSAHRC __, 11 BNA OSHC
2177, 2182, 1984 CCH OSHD ¶ 27,001, p. 34,744 ( No. 77-1598, 1984)
(Buckley, Chairman, separate opinion). If the violative condition was
not preventable, the employer cannot be found in violation of the Act.
Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570-71 (5th Cir.1976).

F. A. Gray's supervisors Poplawski and Bradford Gray knew that employees
would use the scaffolding but reasonably expected that safety belts
would be worn in accordance with OSHA standards and company policy. F.
A. Gray's supervisors had informed the employees of the requirement to
wear belts and had told them they would be disciplined for failure to
obey. Gray and Poplawski each visited the site at. random once or twice
a day and neither had seen the employees working on the scaffold without
their belts. Indeed, the employees testified that they had always worn
their belts In the past, and Hansen confirmed that he would have been
fired had he not done so.

The Secretary argues that Poulin was a supervisor and knew that
employees were not wearing belts. Poulin, although a leadman of the
crew, testified that he could not control the actions of his fellow
employees and could not have required them to conform to the
acknowledged policy of wearing safety belts. Even accepting the
Secretary's argument that Poulin had supervisory authority for some
purposes and should be considered a supervisor does not establish that
the incident was preventable, in view of the uncontroverted evidence
that Poulin's supervisory authority was not such that he could have
prevented his fellow employees from ignoring the requirement that safety
belts be worn. The Secretary's argument elevates form over analysis,
since it ignores the realities of -worksite authority in favor of easily
applied labels. It is often the case on construction sites that there
are many "Supervisors" with varying levels of authority. It is not
enough to show that a "supervisor" knew of the violative condition
without considering or analyzing other factors that evidence an
employer's efforts and ability to achieve compliance with the Act. Here,
Gray fulfilled its obligations to enforce the Act through two of its
supervisors who unquestionably had authority to enforce compliance.
Chairman Buckley therefore finds that the failure of F. A. Gray's
employees to wear safety belts was not preventable and he would vacate
the citation item.

Commissioner Cleary agrees that the citation should be vacated. To prove
that an employer violated the Act, the Secretary must show, among other
things, that the employer knew or with the exercise of reasonable
diligence could have known of and prevented the violation. Concrete
Construction Co., 85 OSAHRC __, 12 BNA OSHC 1174, 1176, 1985 CCH OSHD ¶
27,171, p. 35,072 (No. 82-1210, 1985), pet. for rev. filed, No. 85-3197
(6th Cir. March 11, 1985); Scheel Construction Co., 76 OSAHRC 138/B6, 4
BNA OSHC 1824, 1976-77 CCH OSHD ¶ 21,263 (No. 8867, 1976). The Secretary
makes a prima facie showing of knowledge by proving that a supervisory
employee knew of or created the violation because the knowledge and
actions of supervisory personnel are generally imputed to their
employers. See H. E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499,
1505, 1982 CCH OSHD ¶ 25,985, p. 32,614 (No. 78-204, 1982), aff'd mem.,
705 F.2d 449 (5th Cir. 1983). Commissioner Cleary therefore agrees with
the judge and the parties that Poulin's status is relevant. Commissioner
Cleary concludes, however, that Poulin was not a supervisor for the
purpose of imputing knowledge.

Although Poulin identified himself to the compliance officer as the
foreman, he admitted at the hearing that this was a designation he used
pretty much himself. Poulin did not have the power to hire or fire and
had no responsibility for enforcing safety rules. He told the compliance
officer that he did not like to tell the other employees what to do
because they had been at the work longer than he had. Although Poulin
had the responsibility to make sure that all materials needed on the job
were present and that the employees understood the job at hand, foreman
Walter Poplawski and vice president Bradford Gray were in charge at the
site. They tried to visit the job at least once, if not twice, a day and
were responsible for safety. Since Poulin was only entrusted with
minimal supervision and both Poplawski and Gray visited the site
regularly, Poulin was not a supervisor for the purpose of imputing
knowledge. See Daniel International Corp. v. OSHRC, 683 F.2d 361,
364-365 (11th Cir. 1982).

The Secretary also failed to establish that Gray was not reasonably
diligent in attempting to prevent the violation. First, the employer had
an effectively communicated work rule. John Gray, F. A. Gray's
president, explained that after receiving a citation in November 1982
alleging a "serious" violation for the failure of two employees working
from a two-point suspension scaffold to wear safety belts, he
implemented a new safety rule: The decision to wear safety belts would
no longer be left to the independent judgement of its journeymen
painters; instead, the employees were required to wear belts when
working on a two-point suspension scaffold. Although Gray never
committed the rule to writing, the employees were informed of the rule
at the beginning of each job by Gray's supervisors. There is no evidence
that the employees did not understand the rule. The only two
nonsupervisory employees who testified at the hearing, Reider Hansen and
Claude Poulin, stated that they were aware of the safety belt rule and
that they had worn safety belts on prior occasions.[[3]] See Jones &
Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ¶
26,128 (No. 76-2636, 1982) (substance, not form, of safety rules are
significant).

The Secretary argues that Gray did not adequately enforce its safety
program. He maintains that the supervisors were rarely present on the
jobsite and that the observation of violations was largely incidental.
Commissioner Cleary concludes that the degree of supervision was
adequate. Vice president Bradford Gray stated that random inspections
were made at least once, if not twice, a day to see "that the employees
were using their safety equipment. Foreman Poplawski also inspected the
worksite at random at least twice a day and sometimes more than twice a
day. If safety belt violations had been occurring, they would have been
easily observed. Yet, neither Poplawski nor Bradford Gray had observed
employees without their belts. Poplawski personally inspected the
jobsite when Claude Poulin and Al Gerald's were working on the scaffold
and had not observed a violation of the safety belt rule. Bradford Gray
was not aware of any violations of the safely belt rule by any employees
before the inspection date and neither he nor Poplawski were aware that
employees were not wearing belts on the inspection date. Poplawski had
told employees "there would be discipline" if they failed to follow the
rules. Bradford Gray had reprimanded employees for expressing
disagreement or not complying with the safety rules and testified that
employees had been dismissed. Both Claude Poulin and Reider Hansen were
experienced employees. Raider Hansen stated that if either Bradford
Gray, John Gray or Poplawski knew he was not wearing a belt, he probably
would have been fired. Commissioner Cleary concludes that Gray was
reasonably diligent in its efforts to prevent the violation. See Capital
Electric Line Builders, Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982);
Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681,
1684, 1976-77 CCH OSHD ¶ 21,098, p. 25,401 n. 7 (No. 4105, 1976).
Accordingly, he would vacated item 2A.

_Item 1: Section 1926.28(a)--Safety Belts
_
Citation item 1 alleges that F. A. Gray violated section 1926.28(a)[[4]]
in that its employees did not wear safety belts while they were painting
the exterior of a wall at the edge of a flat roof of the Holiday Inn
building. There was a parapet at the edge of the roof that was about 12
inches wide; the interior height was 15 to 18 inches. The roof was 60
feet above the ground. When compliance officer Chase visited the site,
two Gray employees, leadman Poulin and Al Gerald's, a laborer, were
painting an area about 2 feet below the top of the parapet on the outer
face of the building. To perform this work they used a roller with a
handle approximately 23 inches long, knelt on the roof and leaned out
against the parapet, resting their chests on the foot-wide top surface
of the parapet. A photograph taken by the compliance officer shows an
employee kneeling on the roof behind the parapet, bracing himself with
his left hand. His right hand was extended over the parapet to paint the
exterior of the two-foot high section of exterior wall.

The evidence is conflicting as to whether a hazard existed for which
safety belts were needed. The compliance officer and John Crevier,
general representative of the International Brotherhood of Painters and
Allied Trades and a painter for sixteen years, testified that the
employees should have been wearing protective equipment. In compliance
officer Chase's opinion, it would have been easy for the employees to
fall while painting because the employees "were hanging out over the
edge of the parapet...." They testified also that the employees were in
an awkward position and could have become disoriented. Crevier based his
opinion on his belief that the entire torso of an employee would be
leaning out over the parapet. He further stated that he had twice
painted parapet walls and had worn a safety belt both times. He also
testified that employees in shipyards and other areas use safety belts
when painting on flat roofs and tanks where there is a danger of
falling. However, he admitted he had not seen anyone painting the face
of a parapet at those sites.

Two painting contractors who competed with F. A. Gray, Arthur Chase and
Maynard Young, did not believe that a hazard existed or that safety
belts were needed. Both had been in the painting business since the
mid-1940's and had experience working on a flat roof to paint a parapet
wall. Neither Chase nor Young had used safety belts when performing
painting jobs over a parapet wall, and neither had heard of a painter
falling off a flat roof while painting a parapet. In contrast to the
testimony of Crevier and the compliance officer, both men testified that
the face of the parapet could safely be painted without extending any
significant portion of the painter's body over the edge. Gray's foreman,
Walter Poplawski, and Poulin, who was one of the employees painting the
parapet face, agreed with Young and Chase that there was no danger of
falling. Poulin testified that he never placed both his arms and
shoulders over the edge of the parapet, and that at most he placed his
arm and head and only sometimes part of one shoulder over the parapet
edge. John Gray, F.A. Gray's president, testified that the company had
had no injuries to painters working from flat roofs.

Administrative Law Judge Foster Furcolo affirmed the citation item. He
concluded that the description of the painting alone--leaning over a
15-18 inch parapet and reaching to paint 2 feet down on the face of a 60
foot high building--is clear and convincing evidence of a hazardous
condition for which safety belts were required.

Commissioner Cleary would affirm the judge's decision. In determining
whether a hazardous condition exists under the standard, Commissioner
Cleary would apply a reasonable person test. This test, with which the
majority of courts are in basic agreement, requires that a reasonable
person familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts unique to a particular
industry, would recognize a hazard warranting the use of personal
protective equipment. Industry custom and practice aid in making a
determination but are not controlling. L. R. Willson & Sons, Inc. v.
OSHRC, 698 F.2d 507, 513 at n.17 (D.C. Cir. 1983); Austin Building Co.
v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981); Voegele Co. v. OSHRC,
625 F.2d 1075, 1078-1079 (3rd Cir. 1980); General Dynamics Corp. v.
OSHRC, 599 F.2d 453, 464 (1st Cir. 1979); Bristol Steel & Iron Works,
Inc. v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1977).

Applying this test, Commissioner Cleary concludes that an obvious hazard
existed for which the use of personal protective equipment was required.
He agrees with the judge that the description of the employees' work
together with the picture of F. A. Gray's employee leaning over the wall
is conclusive evidence that the employees were exposed to a falling
hazard. See Voegele Co., 79 OSAHRC 76/A2, 7 BNA 1713, 1979 CCH OSHD ¶
23,860 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3rd Cir. 1980); Jensen
Construction Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979). The photograph
alone belies any testimony by F. A. Gray's witnesses that the employees
were not in a position to fall. It clearly shows that the employee's
body was over the parapet a significant degree. and it is evident that a
fall could occur. In attempting to paint the wall with a long roller and
a brush, an employee could reach over too far and lose his balance.

In Commissioner Cleary's view the standard is designed to protect
against a careless or accidental move by an employee. Cf. Pass &
Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ¶
24,074 (No. 76-4520, 1979)(machine guarding standard intended to protect
against employee behavior caused by bad judgment or inattention). In
this case, the parapet did not prevent an employee from losing his
balance nor did it serve as a barrier to prevent a fall.

Chairman Buckley would reverse the judge and vacate the item. The test
to be applied in determining whether "there Is exposure to hazardous
conditions" within the meaning of section 1926.28(a) is whether a
reasonable person familiar with the factual circumstances surrounding
the allegedly hazardous condition, including any facts unique to a
particular industry, would recognize a hazard. The Fifth Circuit holds
that industry custom and practice is dispositive, while the Commission
and some other circuits have held that such practice is not dispositive.

Whether industry custom and practice are dispositive on the issue of
what a reasonable person familiar with the circumstances and the
industry would recognize as a hazard is not relevant in this case.[[5]]
The Secretary has not offered any evidence to rebut the testimony of
industry experts that no hazard existed and has failed to meet the
substantial burden he would bear in establishing that an industry's
custom and practice was unreasonable. As the Sixth Circuit observed in
Ray Evers Welding Co. v. OSHRC, 625 F.2d 726 (6th Cir. 1980), if
industry practices are not to be found controlling because the entire
industry is negligent, "such negligence on the part of a whole industry
cannot be lightly presumed. . . . It must be proven." 625 F.2d at 732.

In this case four men--all very familiar with the painting industry and
with painting over parapet's from, a flat roof--testified they did not
believe that painters who were working over a parapet on a flat roof
were exposed to a falling hazard. They stated that they had not worn
safety belts when painting in this situation. Two of these men, Arthur
Chase and Maynard Young, had worked in the painting business since the
1940's. The other two men, Walter Poplawski and Claude Poulin, had been
painters for 24 years and 9 years, respectively. These witnesses gave a
rational explanation for their opinion: They believed that the width and
height of the parapet provided adequate protection and that employees
did not extend beyond it a sufficient distance to be exposed to a
falling hazard, even in the hypothetical event of a fainting spell.

All of Gray's witnesses were more qualified than the compliance officer
to testify as to industry recognition of a hazard. The compliance
officer had no familiarity with the painting industry. The inspection or
F. A. Gray's worksite was his first inspection of painting on a roof.
His opinion that the work was hazardous was also based on an exaggerated
account of the employees' position--that 'they were "hanging out over
the edge of the parapet," when in fact only a small portion of their
upper body extended beyond the parapet. Even though Crevier had
experience in the painting industry, his single opinion that a hazard
existed does not outweigh the opinions of the industry representatives
and F. A. Gray's employees. Indeed, Crevier's testimony is particularly
difficult to credit because it was based on the mistaken belief that the
bodies of the employee here were leaning more than half-way over the
edge of the parapet. [[6]]

Nor is there evidence in the record of any injuries to employees from
working on flat roofs with parapets. See General Motors Corp., G. M.
Parts Div., 84 OSAHRC , 11 BNA OSHC 2062, 2066, 1984 CCH OSHD ¶ 26,961,
p. 34,611 (No. 78-1443 & 79-4478, 1984), appeal transferred, No. 84-1680
(1st Cir. Oct. 15, 1984). On the contrary, the record shows that F. A.
Gray had not experienced any injuries from working over a parapet and
neither Maynard Young, Arthur Chase, nor Walter Poplawski was aware of a
painter falling over a parapet while painting from a flat roof.

For the above reasons, Chairman Buckley concludes that the Secretary has
failed to show that a reasonable person familiar with the circumstances
at A. Gray's worksite would recognize a hazard requiring the use of
safety belts. Accordingly, Chairman Buckley would vacate item 1.

The Commissioners agree to affirm the judge's vacation of item 2A,
alleging a violation of section 1926.451(i)(8). The two Commission
members are divided on whether the judge erred in affirming item 1,
alleging a violation of section 1926.28(a). Official action by the
Commission can be taken, however, with the affirmative vote of at least
two members. Section 12(f) of the Act, 29 U.S.C. § 661(e). To resolve
this impasse and permit the case to proceed to a final resolution, the
members have agreed to affirm the judge's disposition of item 1 but
accord that portion of the judge's decision no precedential value. See
Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78
CCH OSHD ¶ 22,313 (No. 13910, 1977), aff'd sub nom. Moore v. OSHRC, 591
F.2d 991 (4th Cir. 1979). Accordingly, the judge's disposition of items
1 and 2A we affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 26 1985

------------------------------------------------------------------------



FOOTNOTES:

[[1]] As created by the Act, the Commission is composed of three
members. Section 12(a), 29 U.S.C. § 661(a). Because of a vacancy, the
Commission currently has only two members.

[[2]] § 1926.451 Scaffolding.

(i) (Swinging scaffolds) two-point suspension.

(8) On suspension scaffolds designed for a working load of 500 pounds,
no more than two men shall be permitted to work at one time. On
suspension scaffolds with a working load of 750 pounds, no more than
three men shall be permitted to work at one time. Each employee shall be
protected by an approved safety life belt attached to a lifeline . . . .

[[3]] The evidence does not support the Secretary's argument that Reider
Hansen had not worn his belt In the past. Hansen testified that he was
not wearing a safety belt when observed by the compliance officer
because "the building is a very easy building to rig." From this, the
Secretary argues that Hansen must not have worn a safety belt on other
occasions. However, Hansen stated that "I always wore one [a safety
belt]" on prior occasions. He explained that all previous buildings were
"bad anyway" in that they had overhangs, slanted roofs or obstructions
that made the jobs dangerous. The judge credited Hansen's testimony that
he wore a belt in the past. That finding is entitled to deference. C.
Kaufman Inc. 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-1978 CCH OSHD ¶
22,481, p. 27,099 (No. 14249,1978).

[[4]] The standard provides:

§ 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.

[[5]] Chairman Buckley finds it unnecessary to address the difference
between the Fifth Circuit test and that employed by the Commission.

[[6]] Chairman Buckley would not give any weight to Mr. Crevier's
testimony concerning the practice of employees where a parapet was not
present because employees working without a parapet are not in a
situation comparable to that here.