________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 93-1612 & 93-3362
                                :
MANGANAS PAINTING CO            :
                                :
          Respondent.           :
________________________________:


*/DECISION/*//

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

This case involves allegations by the Secretary of Labor that Manganas
Painting Company ("MPC") committed fall protection violations while
preparing to repaint the Jeremiah Morrow Bridge. The bridge,
approximately 249 feet high, is a dual-span interstate highway bridge
across the Little Miami River near Cincinnati, Ohio. Each span of the
bridge consists of a concrete road deck resting on a steel-beam
trusswork. Steven Medlock, a compliance officer employed by the
Occupational Safety and Health Administration ("OSHA") of the Department
of Labor, inspected the working conditions at MPC's bridge repainting
project. He found that MPC had installed some fall protection in the
form of safety cables, safety nets and scaffolds on the bridge
trusswork, but he also found by interviewing MPC employees and on-site
managers that the sandblasting work MPC had already done on the
trusswork had involved certain fall hazards.^(1) <#N_1_> Thereafter,
OSHA issued citations to MPC alleging that it committed a serious
violation of a guardrails standard and repeated violations of a personal
protective equipment standard.

Administrative Law Judge Michael Schoenfeld heard the case and found
that MPC had violated the standards as alleged. However, the judge
affirmed the violations as serious and assessed smaller penalties than
the Secretary proposed. On review, the Secretary urges us to classify
the personal protective equipment violations as repeated. She also
argues that the judge erred in reducing the proposed penalties. MPC
argues that the judge erred in finding any violations. For the following
reasons, we affirm the judge in affirming the violations involved here
and we affirm the penalty assessed by the judge for the guardrails
violation, but we find that a repeated classification and higher
penalties are warranted for the personal protective equipment violations.

/The Guardrails Violation (Citation 1, Item 1)/

The Secretary alleges that 29 C.F.R. § 1926.451(a)(4)^(2) <#N_2_>
required MPC to install guardrails on a painter's pick, a temporary
working and walking surface approximately 20 inches wide and 18 feet
long. Alvin Stillwell, one of MPC's experienced sandblaster-painters,
had been using the pick to gain access to certain exterior beams he was
required to sandblast. He used the pick as a temporary walkway from the
permanent railed catwalk inside the trusswork to a temporary cable MPC
had strung on the outside of the trusswork. Timothy McCully, an MPC
foreman, sometimes helped Stillwell position the pick as he progressed
from one trusswork bay to another. There is no dispute that McCully knew
the pick lacked guardrails, and that there were no safety nets under the
pick.^(3) <#N_3_> MPC witnesses testified that Stillwell could have tied
off to a safety cable running perpendicular to the pick at head height
approximately midway between the catwalk and the outer edge of the
trusswork. However, Stillwell told Medlock that he crossed the pick
without tying off. His walking distance across the pick was
approximately 8 feet.^(4) <#N_4_>

The only issue directed for review concerning the merits of the
violation^(5) <#N_5_> is whether the cited scaffold standard that
required guardrails on "platforms" applied to a pick. However,
consistent with the definition of a platform as a "working space for
persons, elevated above the surrounding floor or ground," 29 C.F.R.
§ 1926.502(e), and the definition of a scaffold as a "temporary elevated
platform and its supporting structure used for supporting workmen," 29
C.F.R. § 1926.452(b)(27), the Commission has previously found that
frequently moved painter's picks used as temporary elevated surfaces for
access to work are scaffolds and has applied the cited standard,
§ 1926.451(a)(4), to them. /Armstrong Steel Erectors, Inc.,/ 17 BNA OSHC
1385, 1389-90, 1993-95 CCH OSHD ¶ 30,909, pp. 43,032-33 (No. 92-262,
1995). We therefore conclude that § 1926.451(a)(4) applied to MPC's pick
used for access to work,^(6) <#N_6_> and we affirm the judge in finding
a serious violation.

In assessing a penalty, we consider the four penalty factors in section
17(j) of the Act, 29 U.S.C. § 666(j), which are the size of the company,
its good faith, the gravity of the violation, and the company's history
of violation. The gravity of this violation was high. Stillwell faced a
high probability of serious injury or death because he could have fallen
as much as 200 feet. MPC was a small employer with no prior fatalities,
and it had a program of disciplinary measures for failure to obey safety
rules, but it had prior citations for deficiencies in fall protection.
Based on these facts, we find that a penalty of $1,000 is appropriate
for this item.^(7) <#N_7_>

/Improper Use of Safety Belts (Citation 2, Item 1, Instances a, b, c)/

The fall protection used by MPC's painter-sandblasters while
sandblasting or stringing cables for safety nets consisted of clipping
their lanyard hooks onto the lower edge or flange of large oblong holes
in the beams of the trusswork. The lanyard hooks were snap hooks with a
"keeper" that was intended to snap shut on an "anchor device." The
Secretary cited MPC for violating 29 C.F.R. § 1926.105(a)^(8) <#N_8_>
because, as the compliance officer claimed, clipping the snap hooks onto
the flanges could cause the hooks to "roll out" and become disengaged
because the keepers were not in contact with the anchor devices.

We agree with the judge that this method does not provide adequate fall
protection to employees and that MPC failed to comply with the standard
by using it. /Brock v. L.R. Willson & Sons, Inc.,/ 773 F.2d 1377, 1384
(D.C. Cir. 1985). The judge relied on witness demonstrations during the
hearing^(9) <#N_9_> to find that the method was "only partially
effective in that the hook was secure only when the employee leaned or
shifted his weight in such a manner as to produce tension on the
lanyard." Testimony provides further support for the judge's finding.
Nicholas Manganas conceded that an employee would not "have weight on
his hook when he was climbing" from one porthole to another. Stillwell
testified that he sometimes moved the hook down to the porthole where he
was standing before he climbed out of the porthole to move down to the
next one. Medlock testified that the hook could come loose because,
among other possibilities, the employee could kick the hook out as he
climbed out. McCully testified that the way the hook stays in place is
that the employee keeps it "firm . . . . like a balance." The judge
therefore found that this method was "only partially effective in that
the hook was secure only when the employee leaned or shifted his weight
in such a manner as to produce tension on the lanyard." The judge also
found that the Secretary's lifelines would have "provided a higher
degree of fall protection." These findings based on courtroom
observation and witness testimony must be given considerable weight.
/Cf. Hamilton Fixture,/ 16 BNA OSHC 1073, 1080, 1993-95 CCH OSHD ¶
30,034, pp. 41,175-76 (No. 88-1720, 1993) (deference to credibility
findings that rest on matters peculiarly observable by judge), /aff'd
without published opinion,/ 28 F.3d 1213 (6^th Cir. 1994).

Having found that MPC was not in compliance, we turn to the question of
whether the Secretary established a violation. When the Secretary cites
§ 1926.105(a) to require a device other than safety nets,^(10) <#N_10_>
she has the burden of (1) proving where and how the device could have
been used and (2) overcoming the employer's evidence that use of the
device was impractical, including industry custom and practice. /Falcon
Steel Co.,/ 16 BNA OSHC 1179, 1189-90, 1993-95 CCH OSHD ¶ 30,059, pp.
41,338-39 (No. 89-2883, 1993).

Compliance officer Medlock testified where and how snap hook lanyards
could have been used here. He stated that vertical lifelines could have
been anchored to the upper trusswork beams above employee work locations
or anchored on the bridge deck and dropped over the sides to employee
work locations. Medlock saw employees of Ahern & Associates, MPC's
subcontractor, tied off to vertical lifelines, and a photograph in
evidence shows Ahern's employees tied off to vertical lifelines anchored
above their work location.

Nicholas Manganas, MPC's president, and Andrew Manganas, vice-president
and project superintendent, testified that lifelines anchored on the
bridge deck and dropped over the sides would have had to be angled
toward the trusswork and that angled lifelines could have pulled the
employees off the trusswork, then swung them back into it, possibly
injuring and paralyzing them. However, MPC did not present any evidence
to rebut the Secretary's evidence regarding the possibility of anchoring
lifelines to the upper trusswork beams.

Nor is the Secretary's case rebutted by the industry custom and practice
evidence in this case. There is evidence that the practice of clipping
the snap hooks of lanyards to holes in steel beams was a traditional
industry practice. The record as a whole establishes, however, that
clipping the snap hooks onto lifelines has also become industry
practice, as demonstrated by subcontractor Ahern's use of them and MPC's
plans to use them. We therefore find that the Secretary overcame MPC's
industry practice evidence and established the practicality of vertical
lifelines for the snap hook lanyards.^(11) <#N_11_>

Accordingly, we find that the Secretary established that the device
could have been used and that it was practical. Accordingly, we affirm
the alleged violations of § 1926.105(a).^(12) <#N_12_>

/Classification of the § 1926.105(a) Violations as/ /Repeated /

Under /Potlatch Corp.,/ 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ¶ 23,294,
p. 28,171 (No. 16183, 1979), a violation is repeated^(13) <#N_13_> if,
at the time of the alleged repeated violation, there was a Commission
final order against the same employer for a substantially similar
violation. The Secretary can make a prima facie case of substantial
similarity by showing that "the prior and present violations are for
failure to comply with the same standard." /Amerisig Southeast, Inc.,/
17 BNA OSHC 1659, 1660-61, 1995-97 CCH OSHD ¶ 31,081, p. 43,364 (No.
93-1429, 1996), /aff'd without published opinion,/ 117 F.3d 1433 (11th
Cir. 1997); /see also/ /Secretary of Labor v. D.M. Sabia Co./, 90 F.3d
854 (3d Cir. 1996).^(14) <#N_14_> Here, a prima facie case of
substantial similarity was established by the evidence of a prior final
order against MPC for a § 1926.105(a) violation on a bridge-painting
job. MPC argues that it rebutted the Secretary's prima facie case. MPC
describes the prior violation as "employees tying off to cables under
the picks instead of securing to safety lines installed above their
heads" and argues that it therefore was not substantially similar to the
violations that the Secretary characterizes as repeated. We disagree.
All the violations in both cases concerned failure to tie off to safety
lines located above the employees' work locations and presented nearly
identical fall hazards. /Amerisig,/ 17 BNA OSHC at 1661, 1995-97 CCH
OSHD at p.43,364 (substantial similarity based on substantially similar
hazards). We therefore affirm the Secretary's repeated classification
for citation 2, item 1, instances a, b and c, which are the violations
of § 1926.105(a) involving the improper use of snap hook lanyards.

The Secretary proposed a penalty of $15,000 for citation 2, item 1,
instances a, b, c, d, e, f and g. The Secretary asks us to assess this
amount on review. However, instances d, e and f were vacated by the
judge and are not on review, and we have combined instance g with item 1
of citation 1, for penalty purposes. The remaining instances a, b and c
present a high probability of serious injury or death because the
employees could have fallen approximately 200 feet. As we have noted,
MPC was a small employer with no prior fatalities, and MPC had purchased
new fall protection equipment for this job and had repeatedly instructed
the employees to tie off.^(15) <#N_15_> However, MPC had prior citations
for failure to tie off, failed to instruct employees to tie off
completely through the holes, and failed to install a sufficient number
of vertical lifelines before sandblasting work began. In these
circumstances and considering the section 17(j) factors, we assess a
penalty of $9,000 for citation 2, item 1, instances a, b and c.

/Order/

We affirm item 1 of citation 1. We combine instance g of item 1 of
citation 2 with item 1 of citation 1 for penalty purposes and assess
$1,000 for both violations. We affirm instances a, b and c of item 1 of
citation 2 as repeated violations and assess $9,000.







_/s/ _

Thomasina V. Rogers

Chairman







_/s/ _

Stuart E. Weisberg

Commissioner



Dated: _September 27, 2000_



VISSCHER, Commissioner, concurring in part, dissenting in part:

I agree with the majority that the Manganas Painting Company ("MPC")
violated 29 C.F.R. § 1926.105(a) by allowing its employees to clip their
lanyard hooks onto the lower edge of the holes of the beams of the
trusswork. The judge found that clipping the lanyard hooks in this way
did not provide a secure connection for the lanyard because the hooks
could become loose when the tension on the lanyard was reduced. Thus the
means of fall protection being used did not provide adequate protection
for MPC's employees. /RGM Constr. Co/., 17 BNA OSHC 1229, 1232, 1993-95
CCH OSHD ¶ 30,754, p. 42,727 (No. 91-2107, 1995). I also agree with the
majority's determination that these violations (Citation 2, Item 1,
Instances a, b, and c) are properly classified as repeat violations.

MPC was also cited for failing to have guardrails on a painter's pick
which was being used as a type of scaffold suspended between a fixed
catwalk and a cable strung along the outside of the trusswork (Citation
1, Item 1), and for an employee to walk across the painter's pick to
secure the end of the pick to the cable without tying off (Citation 2,
Item 1, instance g). I disagree with my colleagues that the Secretary
has established these violations.

MPC raised two arguments with regard to Citation 1, Item 1: the
inapplicability of the standard,^(16) <#N_16_> and the infeasibility of
compliance. The majority appears to accept MPC's argument that putting
guardrails on the painter's pick was infeasible. However, they indicate
that MPC failed to establish the defense of infeasibility because it did
not show that it provided alternative protection. The alternative
protection that the majority finds was required was that MPC employees
walking or working on the painter's pick use safety belts for fall
protection. As the very same violative conduct, and the very same
abatement requirement, is alleged in Citation 2, Item 1, instance g, I
would vacate Citation 2, Item 1, instance g as duplicative. /See
Capform, Inc./, 13 BNA OSHC 2219, 2224, 1987-90 CCH OSHD ¶ 28,503, p.
37,778 (No. 84-0556, 1989),/aff'd without published opinion/, 901 F.2d
1112 (5th Cir. 1990)(Commission vacated a violation of the trenching
standard as duplicative of one it had affirmed, since both citations
addressed the same hazard and required the same abatement)/. Cf./
/Cleveland Consol., Inc./, 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD
¶ 27,829, p. 36,430 (No. 84-696, 1987)(two citation items involving
substantially the same violative conduct held to be single violation and
single penalty assessed); /Alpha Poster Service, Inc./, 4 BNA OSHC 1883,
1884, 1976-77 CCH OSHD ¶ 21,354, p. 25,644 (No. 7869, 1976)(two items
involving substantially the same violative conduct merged into single
violation).^(17) <#N_17_>

As for Citation 1, Item 1, this alleged violation was based on the
statement of MPC employee Stillwell, who, when asked by the compliance
officer how he accessed the painter's pick, stated that he walked across
it without tying off. In reviewing the evidence, the judge thought it
most likely "that Stillwell used his lanyard at times and not at
others." Furthermore, the judge found no evidence that MPC had actual
knowledge that Stillwell sometimes walked across the painter's pick
without tying off. The majority has adopted the judge's finding that MPC
nonetheless had constructive knowledge of Stillwell's actions. This is
based on the failure of supervisor McCulley to consistently observe
Stillwell, and from the fact that, in the judge's opinion, the
horizontal lifeline to which Stillwell could have tied off was in "an
awkward and less than completely useful" location. But, as the courts
have said, an employer may not be required to provide constant
supervision, and the Secretary may not rely on lack of constant
supervision to establish an employer's constructive knowledge of a
violation./See, e.g., New York State Electric & Gas Corp. v. Secretary
of Labor/, 88 F.3d 98, 109 (2nd Cir. 1996). On the question of whether
it was unduly difficult for Stillwell to reach the lifeline, the judge
based his conclusion at least in part on his opinion that the company
should have suspended lifelines from the outer edge of the bridge
surface. In the judge's opinion, Stillwell could have tied to such
lifelines while he was securing the outer edge of the painter's pick to
the cable. But as MPC pointed out, lifelines suspended that far from the
end of the pick would actually tend to pull the employee off the end of
the pick. The exhibits show various features to which Stillwell might
have tied off while walking across the painter's pick or while working
to secure the pick to the cable. In any event, Stillwell himself did not
say that tying off was unduly difficult, and the record indicates that
there were occasions when Stillwell did in fact tie off when walking
across the pick. As a result, I do not find that the Secretary
established that MPC had either actual or constructive knowledge that
Stillwell did not always tie off when walking or working on the
painter's pick. I would therefore vacate instance g of Item 1, Citation 2.





_/s/ _	Gary L. Visscher

Commissioner





Date: _September 27, 2000 _







UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION







SECRETARY OF LABOR, 	
Complainant,

	
v.

	DOCKET NOS. 93-1612 AND 93-3362
MANGANAS PAINTING COMPANY, INC., 	
Respondent.

	





Appearances: Patrick M. Zohn

Office of the Solicitor

U. S. Department of Labor

For Complainant



Roger L. Sabo

Schottenstein, Zox & Dun

Columbus, Ohio

For Respondent





BEFORE: MICHAEL H. SCHOENFELD,

Administrative Law Judge







*DECISION AND ORDER*





/Background and Procedural History/

This case arises under the Occupational Safety and Health Act of 1970,
29 U.S.C. § §  651 - 678 (1970) ("the Act").

Respondent's worksite was inspected by a Compliance Officer of the
Occupational Safety and Health Administration, Manganas Painting
Company, Inc., ("Respondent") several times. This case arises out of
inspections conducted in April and September of 1993. As a result of the
April inspection two citations, one alleging three serious and one
alleging a repeat violation were issued to Respondent.Civil penalties in
the amount of $22,500 were proposed by OSHA. (Docket No. 93-1612). As a
result of the September 1993 inspection one citation, one alleging a
serious violation was issued to Respondent. A civil penalty in the
amount of $3,000 were proposed Respondent timely contested both
citations. (Docket No. 93-3362) Following the filing of complaints and
answers the cases were consolidated for purposes of hearing and
decisions. and pursuant to a notice of hearing, the case came on to be
heard in Columbus, Ohio. No affected employees sought to assert party
status. Both parties have filed post-hearing briefs.



/Jurisdiction/

Complainant alleges and Respondent does not deny that it is an employer
engaged in Industrial Painting. It is undisputed that at the time of
this inspection Respondent was sandblasting and repainting a highway
bridge. Respondent does not deny that it uses tools, equipment and
supplies which have moved in interstate commerce. I find that Respondent
is engaged in a business affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer
within the meaning of § 3(5) of the Act.^(18) <#N_18_> Accordingly, the
Commission has jurisdiction over the subject matter and the parties.



/Setting/

Respondent, an industrial painting company, was engaged by the Ohio
Department of Transportation ("ODOT") as a result of competitive
bidding, to re-paint (including blasting to remove old paint and
repainting) a highway bridge known as the Jeremiah Morrow Bridge ("The
Bridge"). The company had performed similar work in the past but this
project was the largest ever undertaken by Respondent. The bridge is
actually a pair of parallel bridges spanning a gorge which included the
Little Miami River. The bridge provide the river crossings for
Interstate Highway 71. The structure is two spans each a concrete road
bed 36 feet wide supported by steel structure framework below. The steel
framework had an overall width of 24 feet.

Respondent's overall plan was to install (rig) steel cables which would
then be used to support safety nets below the steel framework and canvas
"containments."^(19) <#N_19_>Respondent began actual work on the bridge
in March of 1993. (Tr. 528). The first cable installed was a safety line
directly underneath the roadbed ("deck"). A permanently installed
catwalk ran the entire length of the bridge centered underneath the
deck. From this catwalk, Respondent's employees, primarily experienced
bridge painters, obtained access to their specific work areas amongst
the steel framework.



/Docket No. 93-1612/

Citation 1, Item 1 - 29 C.F.R. § 1926.451(a)

Guardrails and toeboards on platforms.

It is alleged in the citation as amended that;

an employee was working from a pick scaffold without standard guardrails
and/or adequately secured lanyard/safety in that, the lanyard hook was
just clipped to a column flange exposing the employee to a potential
[fall] in excess of 200'.

The standard cited, § 1926.451(a)(4), provides;

Guardrails and toeboards shall be installed on all open sides and ends
of platforms more than 10 feet above the ground or floor, except needle
beam scaffolds and floats (see paragraphs (p) and (w) of this section).
Scaffolds 4 feet to 10 feet in height, having a minimum horizontal
dimension in either direction of less than 45 inches, shall have
standard guardrails installed on all open sides and ends of the platform.

An employee of Respondent, Alvin Stillwell, who worked on the bridge
testified that he had been performing blasting on the diagonal steel
members (the "45s") on the outer-most structural steel work below the
roadbed. In order to reach the outer-most steel structures he walked on
the surface of a collapsible or extendable "scaffold pick" ("pick"). The
pick was set up by carrying it to the proper location along a permanent
catwalk located underneath and running along the entire length of the
middle of the bridge. The pick was then extended out through the
permanent handrail of the catwalk so that its outside end rested on a
cable running horizontally along the outside of the bridge. The pick
would then be tied off to the catwalk handrail. A foreman, Tim McCulley,
would occasionally assist Stillwell up to this point in placing and
setting up the pick. (Tr, 30-31.) The outer end of the pick which was
resting on top of the cable was then tied down to the cable. To get from
the catwalk to the outer end of the pick in order to tie it down or to
access his work area, Stillwell climbed over the handrail of the
permanent catwalk and walked along the surface of the pick, a distance
he described as "a matter of three steps." (Tr, 32.) A Manganas foreman
estimated the same distance to be 8 feet. (Tr. 537) There were no
guardrails or toeboards on the picks nor was there a safety net below.
Stillwell stated that he did not make use of or tie-off the lanyard
attached to the safety belt he was wearing when he walked along the
pick. (Tr. 31). The areas involved were more than 10' above the ground
or surface of the water below. (Tr. 49-50.)

In general, to prove a violation of a standard, the Secretary must
demonstrate by a preponderance of the evidence (1) that the cited
standard applies, (2) non-compliance with the terms of the standard, (3)
employee exposure or access to the hazard created by the non-compliance,
and (4) the employer knew or, with the exercise of reasonable diligence,
could have known of the condition. /Astra Pharmaceutical Products,
Inc./, 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); /Dun-Par Engineered
Form Co./, 12 BNA OSHC 1949 (No. 79-2553), /rev'd & remanded on other
grounds/, 843 F.2d 1135 (8th Cir. 1988), /decision on remand/ 13 BNA
OSHC 2147 (1989).

Respondent argues that the cited standard does not apply. Its argument
is rejected. Respondent, in its post-hearing brief (p. 19) acknowledges
that the Commission, in /Armstrong Steel Erectors, Inc.,/ 17 BNA OSHC
1385 (No. 92-0262, 1995) reviewed the applicability of the standard at
29 C.F.R. § 1926.451(a)(4). It is clear from that decision that the
standard applies to the picks in this case in that an examination of the
characteristics of the surface of the picks as used in this case fit
within the parameters of 29 C.F.R. § 1926.502(c) which defines
"platform" as "a working space for persons, elevated above the
surrounding floor or ground." Stillwell was required to walk along the
surface of the picks in order to reach his job station and did so as an
integral and necessary part of accomplishing the tasks assigned to him
as his job responsibilities. In walking upon the surface of the pick
from the permanent catwalk to the location of his job assignment, Mr.
Stillwell was "working." The surface of the pick was thus a working
space within the meaning of the cited standard. The fact that proposed
rulemaking mentions and perhaps defines catenary scaffolding in a
certain manner does not afford relief to Respondent. First, the picks in
this case do not fall under the proposed definition of catenary
scaffolding because only one end of each pick as used by Manganas was
secured to a rope or cable. The other end was secured to the handrail of
the catwalk which is a permanent structural member. Second, Respondent
has not specifically shown, as did the employer in /Baker Concrete
Construction Co.,/ 17 BNA OSHC 1236 (No. 93-0606, 1995), that it was
aware of and in fact relied on "OSHA pronouncements", /Id./ at 1238. I
thus find the cited standard to be applicable.

Respondent is silent as to the existence of the condition and employee
exposure except to suggest that Stillwell used his safety belt and
lanyard while on the picks Respondent also appears to make an argument
which goes to its state of knowledge of the violative condition

There is no dispute that McCulley, one of Respondent's foremen, knew
that the picks lacked guardrails and that he occasionally assisted
Stillwell in moving and placing the picks into position. McCulley's
testimony is not, however, crystal clear as to his observations of
Stillwell's use or non-use of safety belts. At one point McCulley seems
to say that he never saw Stillwell walk along a pick. (Tr. 521, Lines
21-25). A bit later he responded in the affirmative when asked if he
"would watch him (Stillwell) walk the scaffold pick out and then tie off
into the 45-degree (steel member) and start sandblasting." (Tr. 522,
Lines 7-16). He finally agreed that he had not seen Stillwell walk a
pick without tying off his safety lanyard (apparently to a cable which
had been installed overhead). (Tr. 524, Lines 1-16; Tr. 525, Lines 18-25
to Tr. 526, Lines 1-3). Such testimony does not absolutely contradict
Stillwell's statements that he walked picks without using the safety
lanyard unless Stillwell's statement is viewed as claiming that he never
tied off his safety belt when walking along a pick. For the following
reasons, it is more reasonable to infer that Stillwell used his safety
lanyard at times and not at others.

There is no evidence that McCulley was present every time Stillwell
walked across a pick. On the other hand, there is evidence which raises
the reasonable inference that McCulley frequently or even routinely left
the area after helping Stillwell locate, extend and secure the end of
the pick to the catwalk guardrail. (Tr. 31, Lines 1-8). Also, the cable
to which Stillwell would have had tie off in order to walk across the
pick from the catwalk to the exterior steel works was in an awkward and
less than completely useful location in that it was one-half way across
the plank and ran perpendicular to the pick (Tr. 538-541). Thus, in
order for Stillwell to secure his lanyard to the only safety line nearby
before getting on to the pick from the catwalk he would have had to
reach up and out 4'. Moreover, after doing so, he could not slide the
hook across the safety line because the line ran parallel to the length
of the bridge, which was perpendicular to the length of the pick. In
addition, if the consistent use of safety belts was as high a concern to
McCulley as he has claimed, it would be reasonable to expect that after
helping Stillwell move, place and secure a pick that he would have made
it a point to remain in the area long enough to watch Stillwell walk the
length of the pick, secure the outer end and start his work. I thus find
that it is more likely than not that Stillwell walked along the picks
from the catwalk to the outer steel without tying off his safety belt on
more occasions than not.

Finally, in a case where the employer argued that its employees working
on picks without any guardrails always tied off their safety belts the
Commission stated that even if it were so factually, "safety belts are
not 'equivalent protection' when the standard requires guardrails."
/Armstrong Steel Erectors, Inc./, 17 BNA OSHC 1385, 1389 (No. 92-0262,
1995)(Citations omitted.). Thus, even if there were safety lines in
place to which Stillwell could have and did tie off (See, Tr. 535, Lines
4-23), a violation of the cited standard would have to be found due to
the lack of guardrails. Based on the above, I find that Respondent
failed to comply with terms of the standard, an employee was exposed to
the hazard created by the non-compliance, and that Respondent knew or,
with the exercise of reasonable diligence, could have known of the
condition. The Secretary has thus made out a/prime facie /case.

Respondent maintains that "guardrails on the scaffold was infeasible."
(R. Brief, p. 20). It points to testimony by McCulley, that there were
locations where the picks were used at which "[g]uardrails wouldn't be
feasible." (Tr. 516). Referring to two photographs (Ex. C-19 & 20), he
pointed out locations on the outer most steel structures where there was
not enough room between the diagonal (45s) and vertical (90s) to fit a
pick with guardrails or where, if a pick with guardrails were used, the
employee would not have enough room to "be able to work, or move,
because you wouldn't have access to his work." (Tr. 517). I conclude
that this evidence is not sufficient to demonstrate infeasibility.

The Commission, in/Seibel Modern Manufacturing & Welding Corp.,/ 15 BNA
OSHC 1219 (No 88-821, 1991) ("/Seibel/") reviewed the history of the
infeasibility defense including /Dun-Par Engineered Form Co./, 12 BNA
OSHC 1949 (No. 79-2553, 1986), /rev'd in part, sub nom/, /Secretary v.
Dun-Par Engineered Form Co./, 843 F.2d 1135 (8th Cir. 1988), ("/Dun-Par
I/") and /Dun-Par Engineered Form Co./, 12 BNA OSHC 1962 (No. 82-0928,
1986) ("/Dun-Par II/"). In order to prevail on this defense, a
Respondent must demonstrate that 1) compliance with the standard's
requirements would "not be practical or reasonable in the
circumstances."/Dun-Par II,/ supra, 12 BNA OSHC at p. 1966, and 2) "that
an alternative protective measure was used or that there was no feasible
alternative measure." /Seibel/, supra, 15 BNA OSHC at 1228. The
Commission said in /Dun-Par II/, 12 BNA OSHC at p.1996, that
infeasibility includes "considerations of reasonableness, common sense,
and practicality." Moreover, where an employer cannot fully comply with
the literal requirements of a standard, it must nevertheless comply to
the extent that compliance is feasible. /Bratton Furniture Manufacturing
Co.,/ 11 BNA OSHC 1433, 1434 (No. 81-799-S, 1983).

The evidence of record does not show that the use of picks with
guardrails would have been infeasible, difficult or even problematic at
all locations throughout the bridge where picks were needed or actually
used. McCully's testimony, at most, was to the effect that using picks
with guardrails in some locations on the bridge would have presented
problems. Respondent used no picks with guardrails at all. The
configuration of the members which composed the outer-most steel
structure, a series of 45 degree and 90 degree columns between
essentially horizontal beams, created angular "corners" resulting in
constricted spaces only where a 45 degree column was joined to a 90
degree column or a horizontal member. Even if the use of picks with
guardrails was found to be infeasible in this particular type of
location (which was the only type of area identified by McCulley), there
is nothing on this record to indicate that picks with guardrails could
not have been used elsewhere and still provided access for the employees
to their work areas. On this basis, I find that Respondent has not shown
that the use of picks with guardrails would have been impossible or that
their use would have precluded performance of the work required.
Respondent has thus not demonstrated the infeasibility of using picks
with guardrails under the circumstances of this case. Moreover, the
record supports an affirmative finding that the use of picks with
guardrails was feasible. An examination of the same photographs referred
to by McCulley (Ex. C-19 and -20) as well as sketches (C-7) and drawings
of the bridge (C-9) reasonably shows areas between the 45s and 90s with
a sufficient amount of room to accommodate the end of a guardrail
equipped pick. I so find. On this evidence, I find that the use of picks
with guardrails in these areas was feasible.

Having found that the Secretary demonstrated the applicability of the
standard, the existence of a violative condition, and the employer's
knowledge of the condition and also having found that compliance with
the cited standard was feasible, the alleged violation is affirmed.

The violation is alleged to be serious, that is, if the employee were
subjected to the hazard created by the violation, the result would
likely be serious physical harm or death. Act, § 17(k), 29 U.S.C.
666(j). Here, given the possibility of a fall of 10' to 200' to the
ground or surface below, the violation is plainly serious within the
meaning of the Act.

The Secretary has proposed a penalty of $3000 (amended citation). The
Commission has often held that in determining appropriate penalties for
violations" due consideration" must be given to the four criteria under
section 17(j) of the Act, 29 U.S.C. 666(j). Those factors include; the
size of the employer's business, gravity of the violation, good faith
and prior history. While the Commission has noted that the gravity of
the violation is generally "the primary element in the penalty
assessment," it also recognizes that the factors "are not necessarily
accorded equal weight." An administrative law judge is required "to
state an adequate factual basis for his assessment of a penalty...."
/J.A. Jones Construction Co., /15 BNA OSHC 2201, 2214 (No. 87-2059,
1993). The facts in this case are that Respondent provided no guardrails
on any of its picks. There was, however, low employee exposure shown on
this record. There is evidence before me only to the effect that one
employee, Stillwell, used such picks without his safety belt anchored.
The degree of Stillwell's exposure was limited to "a matter of three
steps." The frequency of such exposure, when Stillwell secured the outer
end of a newly placed pick, went from the catwalk to his working area,
or when he returned from his work area appears to be several times per
working day. Finally, while a fall of 10' might or might not cause a
death, a fall of '200 almost assuredly would. In balance, considering
the above as well as the size of Respondent and its cluttered history of
prior violations of a very similar nature, a penalty of $1,000 is found
to be appropriate.

Accordingly, based on the above, Citation No. 1, Item 1 is AFFIRMED as a
serious violation. A penalty of $1,000 is assessed.

Citation 1, Item 3 - 29 C.F.R. 1926.1052(c)

Stairway without handrail.



Item 3 of Citation No. 1 alleges that;

[a]long the south end of the I-71 Bridge employees were observed gaining
access to an office/break trailer by using a 4 step 45" high set of
stairs which was not protected by stair railings on each open side.

The condition described allegedly violates the standard at 29 C.F.R. §
1926.1052(c)(1) which provides;

c) /Stairrails and handrails/. The following requirements apply to all
stairways as indicated:



(1) Stairways having four or more risers or rising more than 30
inches(76 cm), whichever is less, shall be equipped with:



(i) At least one handrail; and (ii) One stairrail system along each
unprotected side or edge.

The Secretary relies in the testimony of CO Medlock as to his
observations of the condition and use of a job-constructed wooden
stairway at the entrance to a job-site trailer Respondent used as an
office and brake area. The stairs were lacking a mid-rail on one side
and had no railing at all on the other (Tr. 168-169; Ex. G-24). Medlock
testified that he observed Respondent's employees using the stairs. (Tr.
169). On cross examination Medlock conceded that he did not know how
long the trailer had been at the project at the time of his inspection.
(Tr. 332). The Secretary maintains that the existence of references to
the standard and its requirements for handrails in Respondent's written
safety program demonstrates that Respondent knew of the requirements.

The employee who constructed the stairs, Bill Miller, testified that the
stairs were not completed at the time of the inspection because he did
not have enough lumber on hand to complete the task. (Tr. 434-436)
Respondent's vice-president, Andy Manganas, claimed that if the
Secretary's photograph (Ex. G-24) had included a greater area, it would
have shown Miller in the process of cutting lumber as part of his
building the stairs at the time of the inspection.

Respondent maintains that no violation existed because the stairs were
under construction at the time of the inspection. (R. Brief, p. 26). It
also argues that as an employee climbed the stairs he "would naturally
hold on to the handrail with his left hand and reach up toward the door
and push [pull] it (open) to the right." (/Id/.) Since the handrail that
was missing was on the right side of the stairs, the door to the trailer
which opened to the right, would have afforded some fall protection to
any employee entering or leafing the trailer, argues Respondent.
Respondent's arguments are rejected.

While it is logical to conclude that a full and complete set of railings
could not exist while a stairway such as this was actually under
construction, there is no evidence on this record that such is the case
here. Respondent claims that construction of the stairs was underway at
the time of the inspection. Since it does not challenge the existence of
the non-complying condition at the time of the inspection, the burden of
going forward with evidence to explain why the non-complying condition
should not be found to be a violation falls upon Respondent. Here,
Respondent's explanation falls short of persuasive. Miller's testimony
was that he started and then stopped building the stairway. He said that
he did not have enough wood of sufficient width. (Tr. 436). Most
importantly, Miller did not remember how long the trailer stairs
remained in the partially completed condition depicted in Ex. G-24. (Tr.
437). He appears to begin to say that he "just never got--" around to
completing the stairs. (Tr. 437, lines 20-12).

Where a respondent makes the claim that a lack of guardrails on a
scaffold existed only during the erection or dismantling of a scaffold,
it has the burden of showing that actual erection or dismantling was
underway./See, R.G. Friday Masonry, Inc./, 17 BNA OSHC 1070, 1071-1072
(Nos. 91-1873 & 91-2027, 1959.) (Whether an employer is actually in the
process of abatement (compliance) is to be viewed in terms of the
reasonableness of the circumstances.) The same logic is applicable to
the construction of a temporary wooden stairway which is found by an
OSHA inspection to be in non-compliance on the day of the inspection.
Thus, even if I were to conclude that as a matter of law a short hiatus
in the construction of the stairs which was required in order to
re-supply the carpenter with the appropriate sized lumber is included
within a reasonable time allowed for the "construction" of the stairs,
such is not the evidence here. There is no showing that completion of
the stair railings proceeded with due diligence. Miller's testimony does
not establish that the needed lumber was supplied within a reasonable
time, or at any time for that matter. He made no statement as to how
long the non-complying condition existed or when the work on the
stairway started again. Thus, I find that the stairway was not under
construction at the time of the inspection.

Respondent does not challenge the Secretary's claim that employees were
exposed and that Respondent knew or should have known of the violative
condition. Accordingly, I conclude that Respondent violated the cited
standard in the manner alleged.

Respondent challenges the classification of the violation as serious,
saying that the CO "was never able to explain how such a
violation...could lead to an injury of a serious nature." (R. Brief, p.
26). Medlock did state that in his opinion a fall of 4½' could result in
a "simple fracture." (Tr. 172). The Commission has held serious
violations to have been demonstrated under circumstances where the
hazard was a fall of ten to fifteen feet. /Brown-McKee, Inc.,/ 8 BNA
OSHC 1247 (No. 76-982, 1980). A fall of 4½' is, however, quite
different. There is no reason to find, on this record, that the worst
case example the CO could conjure up, "a simple fracture", was
the_likely_ or even _probable_ result of a fall off the uppermost step.
A possible result is not a likely or probable result. A possible result
thus does not support a finding of serious. I conclude that the
violation was other-than-serious.

The history, size and good faith of Respondent are considered, More
importantly, however, given the scope of the violative condition,
particularly the existence of a handrail on one side and the position of
the trailer door when open, on the other, as well as the absence of any
evidence as to frequency or duration of employee exposure (the burden of
which is upon the Secretary), I find that a penalty of $100 is
appropriate for the violation.

Accordingly, based on the above, Citation 1, Item 3 is AFFIRMED as an
other-than-serious violation. A penalty of $ 100 is assessed.

/Citation 2, Item 1 - 29 C.F.R. § 1926.105(a)/

/Fall Protection/



I Fall Protection Generally

The standard cited, 29 C.F.R. § 1926.105(a), states that;

safety nets shall be provided when workplaces are more than 25 feet
above the ground or water surface, or other surfaces where the use of
ladders, scaffolds, catch platforms, temporary floors, safety lines, or
safety belts is impractical.

Item 1 of Citation 2 alleges seven instances (a through g) which
describe varying conditions or actions allegedly violative of the cited
standard. All of the instances took place in the absence of safety
nets.^(20) <#N_20_> Briefly stated, instances a, b and c describe
situations in which employees used safety belts and lanyards but did so
in a manner which the Secretary maintains was "inadequate."^(21)
<#N_21_> Instances d, e, f and g describe somewhat different
circumstances -- those in which the employees did not use their safety
belts and lanyards at all.^(22) <#N_22_>

In general, to prove a violation of a standard under § 5(a)(2) of the
Act, 29 U.S.C. § 654a(2), the Secretary must demonstrate by a
preponderance of the evidence (1) that the cited standard applies, (2)
non-compliance with the terms of the standard, (3) employee exposure or
access to the hazard created by the non-compliance, and (4) the employer
knew or, with the exercise of reasonable diligence, could have known of
the condition. /Astra Pharmaceutical Products, Inc./, supra.; /Dun-Par
Engineered Form Co./, supra.

"[T]he cited standard (29 C.F.R. § 1926.105(a) ) requires the use of one
of the enumerated methods of fall protection." /RMG Construction Co.,
/17 BNA OSHC 1229, 1232 (No. 91-2107, 1995). The Commission has held
that the Secretary establishes a /prima facie /case of non-compliance
with 29 C.F.R. § 1926.105(a) by showing that Respondent's employees were
subject to falls of twenty-five feet or more;

and that none of the other safety devices listed in the standard were
practical -- meaning that they are either not in use or are in use but
not practical because they do not protect against the cited fall hazard
for a substantial portion of the workday.

/American Bridge/Laschon, J.V.,/16 BNA OSHC1867 (No. 91-0663, 1994),
/aff'd, American Bridge/Laschon, A Joint Venture v. Secretary of Labor,
/70 F.3d 131 (D.C.Cir. 1995) ("/American Bridge")/. Thus, showing that
none of the devices listed in the standard were in use where employees
could fall over twenty-five feet constitutes a /prima facie/ showing of
a violation. /John H. Quinlan/ d/b/a /Quinlan Enterprises/, 17 BNA OSHC
1194, 1195 (No. 92-0576, 1995) ("/Quinlan/"). Where, however, some form
of fall protection was in use, the Commission will examine the evidence
about the fall protection actually adopted by the employer to determine
whether the employees were adequately protected. /American Bridge,
supra. /Once a /prime facie/ case is made under this standard, a
Respondent may raise one of the affirmative defenses recognized by the
Commission.

There is no challenge by Respondent to the applicability of the
standard. Respondent was engaged in construction and the potential fall
distance was greater than twenty-five feet. I thus find that the
standard is applicable.

Respondent complains that the Secretary relies on hearsay in that the
Compliance Officer personally observed none of these alleged violations
but rather reached the conclusion that they had occurred based solely
upon his questioning employees and reviewing audio tapes of the
interviews (Tr 351-352). While attacking the credibility and expertise
of the Compliance Officer, Respondent's arguments present no persuasive
reason to find unreliable the Compliance Officer's depiction of his
conversations with and tapes of employee interviews. Such statements are
not only admissible as statements made to the Compliance Officer by
employees relating to their employment, but may be relied upon by the
Commission as the basis of finding a violation of the Act. The
evidentiary weight and reliability of the statements as depicted by the
Compliance Officer are enhanced because they corroborate one another due
to their concordance. More importantly, their content, as described by
the Compliance Officer, is essentially consistent with the testimony
given by the same employees at the hearing.

Determining whether there was non-compliance with the terms of the
standard as alleged in the several instances in this case, requires two
separate analyses because there are two types of violations alleged,
those where the employees were allegedly totally unprotected and those
where there was employee protection but of a type which was not
considered by the Secretary to be adequate.



/IA Instances a, b and c - Alleged violations and infeasibility/

The violations alleged in instances a, b and c rest upon the theory that
in the absence of safety nets, where another method of fall protection
is actually used, that method must be "practical" -- meaning that the
method of fall protection which was actually used must have provided
adequate protection.

Respondent in this case was in the very process of installing safety
nets. I thus find that the use of safety nets during the installation of
safety nets would have been technologically infeasible. Thus, the
question here narrows down to whether the method of protection used
(safety lanyards tied off by clipping on to the flange of beams or the
edges of portholes) adequately protected the employees against the cited
fall hazard. Precisely what constitutes an adequate means of protection
is the chestnut of this matter.

In this case, the Secretary argues that;

If the Court believes that the method of clipping into the portholes and
flanges does not constitute adequate fall protection then the Secretary
should prevail. If the opposite is concluded, then the Secretary will lose.

The Secretary's statement of the issue is not quiet accurate. The
question which must be answered to resolve instances a, b and c, is
whether the evidence of record demonstrates that the method of clipping
off safety belt lanyards into the portholes and flanges is "adequate"
fall protection and if not, whether any other method of fall protection
(short of safety nets) which would have provided greater protection to
the employees was feasible.

For the reasons which follow, I find as fact that the evidence on this
record as a whole, as it pertains to instances a, b and c, demonstrates
that clipping off to a flange or porthole edge, the method relied upon
by Respondent for fall protection for its employees, was less than
adequate because the method used left gaps in employee protection and
because another method of fall protection which would have provided a
higher degree of fall protection to employees was feasible.

First, as observed first hand by the Administrative Law Judge as a
result of several demonstrations during the hearing, clipping off to a
flange or the edge of a porthole as was done by Respondent's employees
on the job, was only partially effective in that the hook was secure
only when the employee leaned or shifted his weight in such a manner as
to produce tension on the lanyard which, in turn, held the clip in
place. It was apparent upon observation of the demonstrations that with
every shift in weight or leaning, loosening, sliding or moving the clip
to another location, fall protection lapsed. There were lapses in fall
protection even when the employee was in a relatively stationary working
position such as on a 45 degree beam and not in the process of moving
from one work location to another. (See, Tr. 638). Such observations
coincide with logic. It is reasonable to infer that a person who is not
moving from place to place (sliding along a beam, climbing up or down a
45 degree beam) but remains in a relatively stationary work position
would, in order to accomplish his tasks, have to shift his weight, reach
and pull and, in general, change positions. In doing so, a safety device
which is dependent upon the worker continuously leaning back to keeping
his weight and tension on the lanyard in order to keep the clip in place
cannot be providing full protection at all times.

Second, the testimony of a number of employees acknowledged that there
were times when they did, or could have but did not, obtain full fall
protection by passing their lanyards completely around the beam they
were working on or passing the lanyard completely through a porthole,
around the beam and clipping off back to the lanyard itself or to the
safety belt. (Tr. 186, 190-191, 279, 363-364, 457-458, 605-605) There
were, however, some times or conditions under which the employee could
not tie off back to his own lanyard or safety belt. (Tr. 442, 605-606).

Third, the evidence is unequivocal that lifelines hung vertically from
above could have been used by those employees working in a relatively
stationary position and those who are the subject of instances a, b and
c.^(23) <#N_23_> At least one photograph in evidence (Ex. G-12) shows
employees of a sub-contractor working from a scaffold in or near the
areas where the identified employees of Respondent referred to by
instances a, b and c worked. The contractor's employees were protected
by safety belts with their lanyards tied off to vertical lifelines
anchored somewhere above their work location. (Tr. 182, 209; Ex. G-12).
Had such vertical lifelines been installed earlier, Respondent's
employees could have had secure places to which they could have tied
off. Moreover, the evidence that employees of another contractor were
protected in this manner is an ample basis for rejection of the
contentions of both Andy and Nick Manganas that vertical safety lines
dropped over the sides of the bridge from the roadway above could not be
used. (Tr. 564-566, 646-647). The lifelines shown to be in use by the
contractor's employees were either dropped over the side of the bridge
or anchored elsewhere above the working areas. If the former, the
Manganas' opinions and reasoning must be incorrect or, if the later,
there was a better method of employee protection not used by Respondent.

Under these circumstances, I find that the clipping off of safety belt
lanyards to flanges or porthole edges is not "adequate."^(24) <#N_24_> I
conclude that Respondent was in violation of the standard as alleged in
instances a, b and c.

/IB Instances d, e, f and g - Alleged violations and infeasibility./

Instances d, e and f allege violations regarding activities identified
in the citation as "walking" or "cooning" (or both) on various beams
while not being protected by any fall protection. Instance g describes
an employee "working from an unprotected scaffold pick" without any fall
protection.^(25) <#N_25_> It is undisputed that safety nets were not yet
in place. It is also undisputed on this record that at least on some
occasions, employees would move about the beams (and in one case, a
scaffold) from location to location, whether walking, climbing or
cooning, while not tied off. (Tr. 48-49, 430, 440, 463, 606-607, 614).
Based on this evidence, I find that the employees of Respondent
identified in citation 2, item 1, instances d, e, f and g were subject
to fall hazards of 25 feet or more under conditions in which no fall
protection at all was in use. This is sufficient to conclude that the
Secretary has made out a/prime facie/ case of violations in instances
d,e, f and g. /American Bridge,/ Supra., /Quinlan, /Supra.

Respondent raises the affirmative defense that compliance with the
standard was infeasible.

In order to prevail on this defense, a Respondent must demonstrate that:
1) compliance with the standard's requirements would "not be practical
or reasonable in the circumstances." /Dun-Par II, supra, 12 BNA OSHC at
p. 1966/, and 2) "that an alternative protective measure was used or
that there was no feasible alternative measure." /Seibel/, supra, 15 BNA
OSHC at 1228. /See also, Kunz Construction Co./, 15 BNA OSHC 1331, 1333
(No. 90-2369-S, 1991) (ALJ). Infeasibility, said the Commission, in
/Dun-Par II/, 12 BNA OSHC at p. 1996, includes "considerations of
reasonableness, common sense, and practicality." /Id./ Moreover, where
an employer cannot fully comply with the literal requirements of a
standard, it must nevertheless comply to the extent that compliance is
feasible. /Bratton Furniture Manufacturing Co.,/ 11 BNA OSHC 1433, 1434
(No. 81-799-S, 1983). Most recently, the Commission articulated the
defense as follows:

In order to establish the affirmative defense of infeasibility, an
employer must prove that (1) the means of compliance prescribed by the
applicable standard would have been infeasible under the circumstances
in that (a) its implementation would have been technologically or
economically infeasible, or (b) necessary work operations would have
been technologically or economically infeasible after its implementation
and (2) either (a) an alternative method of protection was used, of (b)
there was no feasible alternative means of protection.

/Armstrong Steel Erectors, Inc., /17 BNA 1385, 1387 (No. 92-0262, 1995).

The record does not support a finding that there was a feasible way to
provide fall protection for the employees portrayed in instances d, e
and f. In regard to a suggested abatement method for instance d, the
Compliance Officer spoke of "retractables, life lines from above, the
nets or a static line along that area." (Tr. 193). He identified "beam
strap(s)" "cross arm strap(s)" and "static line(s)" as methods to abate
in instances e and f (Tr. 196).

Logic, the photographs in evidence and reasonable inferences arising
from the record as a whole warrant rejecting such testimony. At some
point in time in the complex process of rigging a bridge for painting as
was being done at the time of the alleged violations, the first outside
horizontal cable must be installed. In order to do so employees had to
be on the lowermost horizontal beam on the outer steel structural works.
In instances d and e the employees were moving horizontally along the
lower beam (cord) from upright (90 degree) column to column as part of
installing the first line running horizontally along the outside of the
structural steel framework which would become a line supporting the
safety nets which were installed later. In instance f, the employees
were setting the first safety line itself and preparing for the setting
of the outside horizontal lines which would eventually support the ends
of the picks. Thus, the Compliance Officer's reference to "nets" or a
"static line" which could be used makes no sense. In installing the
first line safety line itself or the first horizontal lines to support
picks and from which nets would eventually be hung there are, perforce,
neither pre-existing other static lines nor earlier - installed nets for
protection. Using "beam straps or cross arm straps" amounts to the same
tautology. At some time, some employee must put in the first protective
system. Unless it can be demonstrated that the safety line itself can be
installed without any employee exposure to the hazard it is designed to
protect against, there will be some employee exposure to that hazard. I
thus find that while in the process of installing the first safety
lines, employees who were cooning beams could not have feasibly been
afforded more effective fall protection.

Lifelines hung vertically every six lateral feet which were secured
somewhere above the work location were found to be feasible in relation
to employees on the outer structural steel framework performing
stationary job duties at a later time. Indeed, such lines were put in
later by Respondent. (Tr. 493-494). Installation of a sufficient number
of vertical lifelines was, however, not feasible here. With lanyard
lengths of no more than 6 feet, a separate vertical line would have to
be dropped every three lateral feet or less to enable an employee moving
horizontally along a beam to clip off, move a bit further, yet still be
able to change his clip from one vertical line to the next before
proceeding further. Hanging a vertical lifeline every three lateral feet
is found to be unreasonable. I thus find that it was infeasible for
Respondent to comply with the cited standard insofar as it is sought to
be applied in instances d, e and f.

Instances d, e and f are accordingly VACATED.

I find that it was not infeasible to comply with the standard in a
manner so as to provide fall protection for the employee as described in
instance g. The employee referred to is Mr. Stillwell. As discussed in
detail in regard to Citation No. 1, Item 1, supra., Mr. Stillwell walked
across the pick from the catwalk to the far outside end of the pick
which was resting on a cable running horizontally along the outside of
the bridge. He then secured the end of the scaffold to the cable. Had
Respondent installed the vertical lifelines at intervals along the
outside of the bridge as discussed in regard to instances a, b and c,
Stillwell would have had a stable and secure place to which he could tie
off his lanyard once he arrived at the outside end of the scaffold and
in a rather stationary position, secure the pick's end to the cable on
which it rested. It is noted that even if Stillwell had tied off to the
very horizontal line on which the pick rested he would have had greater
fall protection than not having tied off at all. This is so even though
tieing off to a horizontal cable below one's work station may not
itself, be in compliance with OSHA requirements. Finally, the fact that
securing the pick to the cable might not have taken very much time is no
defense. Stillwell could have been afforded fall protection during that
time and was not. Thus, compliance with the standard, under the
circumstances depicted in instance g was not infeasible.



/II Greater Hazard Defense/

Respondent's does little more than merely mention the greater hazard
defense (apparently as to all instances) in its post-hearing brief.
(Resp. brief, p. 21). Respondent recognizes that the defense places upon
an employer the burden of showing by a preponderance of the evidence
that (1) the hazards of compliance are greater than the hazards of non
compliance, (2) alternative means of protection are unavailable, and (3)
a variance was unavailable or inappropriate. /Spancrete Northeast,
Inc./, 15 BNA OSHC 1020 (No. 86-521, 1991). Yet, it presents an argument
only as to the variance aspect. It merely states that "[c]learly a
greater hazard existed as to any other available means to protect
employees, or to perform the work safely." (Brief, p. 22). Respondent's
failure to identify evidence or present any argument furthering its mere
statement of an affirmative defense constitutes, for all practical
purposes an abandonment of the defense or, at least, a failure to carry
its burden. The argument is rejected.



/III Employee Misconduct Defense/

Respondent maintains that "[a]ny violations were due to employee
misconduct." (Brief. p. 24).

The record is clear that Respondent's employees were fully aware that
they were supposed to wear and to tie off their safety belt lanyards
"wherever possible." Several admitted that there were times when they
(and other) employees did not do so because they forgot or were simply
in too much of a rush to do so. Several employees as well as supervisory
personnel testified that Respondent had an established and known policy
that violators of safety requirements would be warned orally, then in
writing and then could be disciplined or fired. Indeed, there is some
indication that after the inspection in this case, an employee was
fired, at least in part, due to his unsafe work practices.

The Commission has long recognized an affirmative defense of
unpreventable employee misconduct. It has consistently held that in
order to prevail on this affirmative defense an employer must show by a
preponderance of the evidence that; (1) it established work rules
designed to prevent the violative conditions from occurring; (2) the
work rules were adequately communicated to its employees; and (3) it
took steps to discover violations of those rules; and (4) it has
effectively enforced the rules when violations were discovered. /Jensen
Construction Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979)./

//Respondent's asserted employee misconduct defense fails in this case.
First, it is irrelevant as to instances d, e and f, vacated on other
grounds. Second, as to instances a, b and c there simply was no employee
misconduct. In clipping off to the flanges and porthole openings, the
employees were using their safety belts and lanyards as they had been
instructed to by Respondent. Their actions were fully known, approved
and supported by Respondent's supervisory and management personnel.
Similarly, as to instance a, for all of the reasons discussed in regard
to Citation No. 1, Item 1, foreman McCully knew or should have known
that Stillwell, when he reached the outer end of the scaffold pick,
worked to secure the pick without tieing off.



/IV Violations, Classifications and Penalties/

Based on the above, I concluded that instances a, b, c and g of Item 1,
Citation No. 2 are violations of the cited standard.

Given the most likely consequences of falling the distances involved, I
conclude that the violations are serious violations under section 17(j)
of the Act, 29 U.S.C. § 666(j). /Brown-McKee, Inc.,/ 8 BNA OSHC 1247
(No. 76-982, 1980); /P.P.G. Industries, Inc.,/ 6 BNA OSHC 1050 (No.
15426, 1977).

Citation No.2, Item 1 alleges a repeat violation. I conclude that it is
not. The Secretary, in his post-hearing brief, points to no facts and
makes no argument supporting the repeated classification of the alleged
violation. It is his burden to do so as the proponent of the
classification which carries with it significantly higher possible civil
penalties. (Act, § 17(a), 29 U.S.C. § 666(a). Complainant has thus
abandoned the allegation. Moreover, what little relevant evidence of
record exists as to the nature of prior violations of 29 C.F.R. §
1926.105(a) by Respondent would be insufficient to find any substantial
similarity of past and present violations or flaunting of the
requirements of the Act which might be necessary for concluding that the
instant violations are repeated. /Potlach Corp./, 7 BNA OSHC 1061 (No.
16183, 1979); /Austin Road Co.,/ 8 BNA OSHC 1916, 1918 (No. 77-2752, 1980).

The Secretary proposed a penalty of $15,000 or this alleged violation.
Neither party sought to argue that any particular amount of penalty
would be appropriate. Having concluded that four of the seven initially
cited "instances" were violations of the Act and that none were repeated
as alleged, the penalty proposed by the Secretary is excessive. The
considerable fall distances involved with the concomitant results
indicates a relatively high degree of gravity. On the other hand,
Respondent's good faith is not challenged. It has a written safety
program, conducts safety training and prior to starting work on this,
its largest contract, it invested in and supplied much new equipment.
While Respondent has a history of prior violations, it also has a
history, according to Nick Manganas, of having never had a fatality. It
is a family run company seasonally employing up to thirty-five
individuals. Under these circumstances, I find that a penalty of $1000
is appropriate for the serious violation of the Act occasioned by
Respondent's failure to comply with the standard at 29 C.F.R. §
1926.105(a) found above.

Accordingly, Citation 2, Item 1, Instances a, b, c and g are AFFIRMED as
a serious but not repeat violation. A civil penalty of $1,000 is
assessed. Citation 2, Item 1, Instances d, e and f are VACATED.



/Docket No. 93-3362/



Citation 1 Item 1- 29 C.F.R. 1926.602(c)(1)(iv)

Unauthorized personnel allowed to ride on forklift.



This citation alleges that during the course of the inspection in
September of 1993, "unauthorized employees were observed riding an
Ingersoll Rand forklift and no safe place to ride was provided."

The standard allegedly violated, 29 C.F.R. § 1926.602(c)(1)(iv),
requires that industrial trucks used meet the requirements of American
National Standards Institute (ANSI) standard B56.1-1969, Safety
Standards for Powered Industrial Trucks. Section 603 C of the ANSI
standard provides:

C. Unauthorized personnel shall not be permitted to ride on powered
industrial trucks. A safe place to ride shall be provided where riding
of trucks is authorized.

Compliance Officer Medlock testified that he observed the forklift in
operation on several occasions during which there was, in addition to
the operator, another employee riding the equipment. On one of those
occasions, Mr. Andy Manganas was operating the lift. (Tr. 217, 229,
230). The Compliance Officer maintains that he brought it to the
attention of Andy Manganas who responded by ordering the employee off
the equipment, reprimanding him and telling him specifically that he
(the employee) had previously been instructed not to ride the forklift.
(Tr. 229). Observation and a photograph establish that there is only one
cushioned seat on the lift. (Ex. C-25). In addition, he testified that
there was a warning sticker on the cab to the effect that riders were
not permitted. (Tr. 221, 222, 225; Ex. C-25c).

Respondent argues that the standard is not applicable because the OSHA
standard "did not contemplate, nor require, what had to be done by
employees insofar as safety of operation of the truck." (Resp. Brei, p.
28) Respondent relies on subsequent revisions of the standard made by
OSHA which added more specific requirements regarding personnel
protection. Respondent also notes that "the standard is not an outright
prohibition against riding on lift trucks." (Brief, p. 29). Respondent
concedes that employees rode on the forklift. It maintains, however,
that employees were authorized to do so and that there were "safe
places" for them to ride. Andy Manganas' description of his conversation
at the site with the Compliance Officer differs from that of the
Compliance Officer. According to Mr. Manganas, the conversation he had
with the Compliance Officer was limited to a statement by the officer to
the effect that he saw people riding on the forklift fender. He denies
making any further statement (/e.g./ that employees, other than the
operator were instructed not to ride the fork lift.) Respondent also
points to testimony by Andy Manganas that there "was a bar to hold on
to" on each of the fenders and that Mr. Manganas opined that someone
could sit on the top of the fender on either side of the lift and ride
safely. (Tr. 571-572).

As with other alleged violations of § 5(a)(2) of the Act, Complainant
must show by a preponderance of the evidence that the standard is
applicable, that there was a non-complying condition, that employees
were exposed to the hazard which arose from the non-complying condition
and that Respondent knew or reasonably should have known of the
violative condition. /Astra Pharmaceutical Products, Inc./, Supra.

Respondent's claim that the standard is not applicable is rejected.
Where the wording of a standard is clear, as it is here, there is
neither need nor reason to look to later OSHA amendments to "interpret"
it. Moreover, even if a standard is amended after the inspection and
issuance of a citation in a particular case, the mere fact that it was
later amended , is not, by itself, necessarily evidence of what OSHA
intended in the original standard.

The controlling issue here is whether the condition as it concededly
existed failed to comply with the requirements of the standard. More
specifically, when the employees rode on the fork lift were they
provided a safe place to ride ? I find that they were not.

It is not the province of an administrative law judge to decide an
alleged violation on his or her own notion of what would or would not
have been safe. It is a matter of the weight of the evidence of record.
Yet, an administrative law judge cannot ignore common knowledge or
rational inferences arising from the evidence on the record. Nor can or
should the judge ignore what is plainly evident in a photograph in
evidence. In this case there was testimony by Andy Manganas that he
thought the practice of allowing employees to ride the fenders of the
forklift was a safe practice. The Compliance Officer sought to present
evidence which was rejected because it could not be shown to be
applicable to the year, make and model of the fork lift in question. Nor
was the proffered evidence claimed to be applicable to fork lifts in
general. That evidentiary ruling is again affirmed. The photograph of
the fork lift (Ex. C-25) does not reveal a platform, seat or handrails
of any kind on the fender. Despite Andy Manganas' claim that employees
sat there, it appears from the photograph that there was no such place
established or demarcated by the manufacturer. The manufacturer
installed one seat for an operator and no others. In addition, there is
unrefuted evidence that employees were observed to ride as passengers
while standing on the step area of the fork lift. (Tr. 217). Mr.
Manganas did not claim that the step (as opposed to the fender) was a
safe place to ride. Finally, there is no dispute that a "No Riders"
sticker or decal was on the fork lift. Although equivocal whether the
intent in putting the decal on the fork lift was to allow no riders at
all or only those authorized, the presence of the decal nonetheless is
consistent with either. Based on this evidence, I find that other than
the driver's seat, there was no safe place to ride on the fork lift.
Thus, Respondent's permitting employees to do so constitutes
non-compliance with the requirements of the cited standard.

Employee exposure and Respondent's knowledge of the condition is clear
and unrebutted. Accordingly, I find that Respondent violated the cited
standard as alleged in Citation 1, Item 1, as alleged.^(26) <#N_26_>

In order to be classified as serious under § 17(k) of the Act, supra.,
it must be established by the evidence as a whole that there is a
substantial probability that death or serious physical harm could result
from the violative condition. It is the likelihood of serious physical
harm or death arising from an accident rather than the likelihood of the
accident occurring which is considered in determining whether a
violation is serious. In this case, neither party presents any argument
(other than summary proposed findings) regarding either the
classification of the alleged violation or the amount of penalty that
might be appropriate.

There is opinion testimony from the Compliance Officer that if an
employee riding on the fender or step fell off he could suffer broken
bones or a concussion, or even death resulting from the fall or being
run over by the fork lift. (Tr. 231) I find that there is little
likelihood of a serious injury. The fall distances are just a few feet.
While the lift is moving, it is doing so slowly. Employees on the site
generally wore hardhats^(27) <#N_27_> significantly reducing, if not
eliminating the Compliance Officer's concern as to concussions. In sum,
the likelihood of a serious injury or death occurring as a result of a
fall from the fork lift under the circumstances of this case is low. The
likelihood of a serious injury occurring, even if the hazard comes to
fruition, is so low that it cannot support finding a serious violation.
Accordingly, I find that the violation was other than serious.

The penalty factors are not discussed by the parties in their briefs.
While proposed to be $3,000 in the initial citation and notification of
proposed penalty, given all of the factors as discussed previously, I
find that a penalty of $500 is appropriate.





*/FINDINGS OF FACT/*//



All findings of fact necessary for a determination of all relevant
issues have been made above. Fed. R. Civ. P. 52(a). All proposed
findings of fact and conclusions of law inconsistent with this decision
are hereby denied.





*/CONCLUSIONS OF LAW/*//



1. Respondent was, at all times pertinent hereto, an employer within the
meaning of §  3(5) of the Occupational Safety and Health Act of 1970, 29
U. S. C. § §  651 - 678 (1970).

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



/DOCKET NO. 93-1612/



3. Respondent was in serious violation of section 5(a)(2) of the Act in
that it failed to comply with the standard at 29 C.F.R. §
1926.451(a)(4). A penalty of $1,000 is appropriate therefor.

4. Respondent was in non-serious violation of section 5(a)(2) of the Act
in that it failed to comply with the standard at 29 C.F.R. §
1926.1052(c)(1). A penalty of $100 is appropriate therefor.

5. Respondent was in serious but not repeated violation of section
5(a)(2) of the Act in that it failed to comply with the standard at 29
C.F.R. § 1926.105(a). A penalty of $ 2,500 is appropriate therefor.

/DOCKET NO. 93-3362/



6. Respondent was in non-serious violation of section 5(a)(2) of the Act
in that it failed to comply with the standard at 29 C.F.R. §
1926.602(c)(1)(vi). A penalty of $ 500 is appropriate therefor.





*ORDER*

/Docket No. 93-1612/

1. Citation No. 1, Item 1 is AFFIRMED. A civil penalty of $1,000 is
assessed therefor.

2. Citation No. 1, Item 2 is VACATED pursuant to Complainant's withdrawal.

3. Citation No. 1, Item 3 is AFFIRMED as an other than serious violation
of the Act.

A civil penalty of $100 is assessed.

4. Citation No. 2, Item 1, instances a, b, c and g are AFFIRMED as a
serious but not repeated violation of the Act. An aggregate penalty of
$2,500 is assessed.

/Docket No. 93- 3362./

5. Citation No. 1, Item 1 is affirmed as an other than serious violation
of the Act.

A. civil penalty of $500 is assessed.















__

Michael H. Schoenfeld

Judge, OSHRC





Dated: JUL 23 1996

Washington, D.C.

1. MPC employees were not engaged in any work activity when Medlock was
there.

2. 29 C.F.R. § 1926.451(a)(4), the guardrails requirement for scaffolds
in general that was in effect at the time of the inspection in this
case, reads as follows: "Guardrails and toeboards shall be installed on
all open sides and ends of platforms more than 10 feet above the ground
or floor, except needle beam scaffolds and floats (see paragraphs (p)
and (w) of this section). Scaffolds 4 to 10 feet in height, having a
minimum horizontal dimension in either direction of less than 45 inches,
shall have standard guardrails on all open sides and ends of the platform."

3. The judge's decision erroneously states that safety nets were in
place by the time of the inspection. MPC had not installed nets where
Stillwell worked. "The nets were ordered," Stillwell testified, "and
when they arrived, [MPC] would hang them, but in the meantime, we would
do our job[.]" Stillwell testified that it would take three to three and
a half months to "have this bridge totally rigged" with safety nets.

4. The judge found from McCully's testimony that the distance was 8
feet. Medlock measured 12 feet, 9 inches from the catwalk rail to the
perimeter cable. Stillwell testified that the distance was only "a
matter of three steps."

5. To establish a violation, the Secretary must show that the cited
standard applied, that the employer failed to comply with it, that one
or more employees were exposed or had access to the hazard, and that the
employer knew of it. /E.g., Kulka Constr. Mgmt. Corp.,/ 15 BNA OSHC
1870, 1873, 1991-93 CCH OSHD ¶ 29,829, p.40,687 (No. 88-1167, 1992). The
only issue in MPC's cross-petition for discretionary review and in the
Commission's briefing order was whether the cited standard applied.
MPC's review brief, however, raised three more issues that the Secretary
responded to in her reply brief. Although the Commission may decline to
address issues not directed for review, /see Tampa Shipyards, Inc.,/ 15
BNA OSHC 1533, 1535 and.4, 1991-93 CCH OSHD ¶ 29,617, p. 40,097 n.4 (No.
86-360, 1992), we have reviewed the entire record in this case and
affirm the judge's findings as to each element of the violation. Thus,
although MPC argues that the Secretary failed to establish employee
exposure, we reject the argument because, as the judge found,
Stillwell's testimony that he crossed the pick without tying off is not
refuted by McCully's testimony to the contrary; McCully was not present
every time Stillwell crossed the pick. MPC argues that the Secretary
failed to establish knowledge, but as the judge found, McCully had
constructive knowledge that Stillwell did not always tie off because the
only available lifeline was in "an awkward and less than completely
useful location" perpendicular to the pick and approximately 4 feet from
each end. Moreover, the judge found that Stillwell walked along the pick
without fall protection "on more occasions than not." In view of the
difficulty with the lifeline, the frequency of Stillwell's use of the
pick, and McCully's knowledge of these conditions, reasonable diligence
would include the further step of monitoring to see that Stillwell tied
off. This is readily distinguishable from applying a per se rule that a
safety policy is inadequate unless employees are being constantly
monitored for safety violations, which the Second Circuit rejected in
/New York State Elec. & Gas Corp,/ 88 F.3d 98 (2d Cir. 1996). MPC argues
that it established an affirmative defense of infeasibility, but the
defense has not been established because MPC did not effectively
implement the alternative means of protection, a safety belt. /See,
e.g., Mosser Constr.,/ 15 BNA OSHC 1408, 1416, 1991-93 CCH OSHD ¶
29,546, p. 39,907 (No. 89-1027, 1991) (elements of infeasibility defense).

6. MPC argues that the pick was a "catenary" scaffold, /i.e.,/ a kind of
suspension scaffold that consists of a platform secured to two parallel
horizontal cables. /See/ 29 C.F.R. § 1926.450(b) (1996) (revised
scaffold standard defining "[c]atenary scaffold"). We agree with the
judge, however, that MPC's pick was not a catenary scaffold because one
end rested on a permanent catwalk, not a horizontal cable. Moreover, the
standard cited here was a general standard that applied to all
scaffolds, such as catenary scaffolds, that were not addressed by a
particular standard. While the cited general standard did not
specifically address catenary scaffolds, it did not exempt them. MPC
points to OSHA's new standard on scaffolds that only requires safety
belts for fall protection on catenary scaffolds. /See/ 29 C.F.R.
§ 1926.451(g)(1) (1996) (personal fall arrest system required for
catenary scaffolds). We note first that the revised standard was not yet
in effect when the citations here issued. In addition, under the cited
standard, MPC was not required to install guardrails if they were
infeasible and MPC implemented safety belts instead as an alternative
means of fall protection. /See, e.g., Mosser,/ 15 BNA OSHC at 1416,
1991-93 CCH OSHD at p. 39,907 (affirmative defense of infeasibility of
compliance). As we found earlier, however, MPC did not effectively
implement safety belts at this location and thus would not have been in
compliance under the new standard even if it did apply.

7. In citation 2, item 1, instance g, the Secretary alleged that MPC
violated 29 C.F.R. § 1926.105(a) by failing to require Stillwell to use
a tied-off safety belt while securing the same pick at issue here to the
temporary cable on the outside of the bridge trusswork. However, the
same abatement would alleviate the fall hazards involved in both
citation items. Accordingly, we exercise our discretion to assess a
single penalty of $1,000 for citation 1, item 1, and citation 2, item 2,
instance g. /See H.H. Hall Constr. Co.,/ 10 BNA OSHC 1042, 1046, 1981
CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981).

8. Section 1926.105(a) states: "Safety nets shall be provided when
workplaces are more than 25 feet above the ground or water surface, or
other surfaces where the use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety belts is impractical." The
Secretary also argues on review that MPC violated 29 C.F.R.
§ 1926.28(a), which she cited in the alternative. This standard requires
personal protective equipment "where there is an exposure to hazardous
conditions or where this part indicates the need for using such
equipment to reduce the hazards." However, the judge only found a
violation of § 1926.105(a) and did not address § 1926.28(a). We will
confine our analysis to § 1926.105(a) because we agree that it was
violated.

9. The Secretary asked certain painters and MPC employees including
Stillwell, McCully, William Miller and Alan Trevino, to demonstrate the
clipping-off method on a demonstrative prop consisting of a board cut by
Mr. Medlock to have a hole in it with the dimensions he had measured in
the trusswork beams at the site.

10. The Secretary erroneously relies on /GEM Indus, Inc., /17 BNA OSHC
1861, 1863, 1995-97 CCH OSHD ¶ 31,197, p. 43,688 (No. 93-1122, 1996),
/aff'd without published opinion/, 149 F.3d 1183 (6th Cir. 1998), where
the prima facie case is different because the citation involved a lack
of safety nets for work being performed without any fall protection.

11. MPC argues that it complied with the standard because the lanyards
provided fall protection for a "substantial portion of the workday" even
without the keeper properly engaged all the time. We note that "the
issue of whether employees were protected for a substantial portion of
the workday is only relevant were the employees are temporarily unable
to tie off because of 'unexpected or unusual circumstances' and the
Secretary claims that the employer should have used alternative fall
protection in addition to the safety belts." /Armstrong Steel Erectors,
Inc.,/ 18 BNA OSHC 1630, 1632, 1999 CCH OSHD ¶ 31,758, p. 46,422 (No.
97-250, 1999) (citations omitted). As the Commission found in
/Armstrong,/ "those circumstances clearly were not present here. . . .
[Rather, the Secretary has established] that safety belts were practical
for 100 percent of the workday." /Id./

12. MPC's claim that § 1926.105(a) is unenforceably vague when used to
penalize its method for using the snap hook lanyards fails to take into
account that § 1926.105(a) has long been held to provide clear notice of
a duty to provide protection that eliminates the fall hazard to the
extent possible. /See Corbesco, Inc. v. Secretary,/ 926 F.2d 422, 428
(5th Cir. 1991) (notice from case precedent that roof where employees
are working does not constitute temporary floor for fall protection from
edge of roof);/Willson III/, 773 F.2d at 1384 (employer cannot simply
choose device without regard to whether it provides adequate fall
protection). We also reject MPC's claim that the Secretary's new fall
protection standard addressing snap hook disengagement problems proves
that § 1926.105(a) does not address how snap hook lanyards must be used.
Because the Secretary promulgated her standard after the inspection in
this case and because it does not purport to interpret § 1926.105(a) in
any way, it is irrelevant to MPC's case. The inquiry here is whether
MPC's method of hooking eliminated the hazard as § 1926.105(a) requires.

13. The judge erroneously determined that the Secretary did not argue
for a repeated classification in her posthearing brief, and concluded
that she had abandoned the allegation.

14. In /Sabia,/ which issued shortly after Judge Schoenfeld issued his
decision in this case, the Third Circuit, one of the circuits to which
this case is appealable, disavowed its prior view that a repeated
violation requires "proof of flaunting" and instead adopted the
Secretary's interpretation set forth in /Potlatch./

15. Specifically, MPC had purchased new scaffolds, safety nets, safety
belts, lanyards, and safety cables or lifelines and had instructed the
employees to tie off at all times or suffer discipline, /i.e.,/ a verbal
warning, written reprimand, termination of employment.

16. In my view, MPC's argument that this was a "catenary scaffold" and
that the language of 29 C.F.R. § 1926.452 that was in effect at the time
of this inspection did not apply to such scaffolds has considerable
merit. However, the question of the application of the standard cited
here to such scaffolds would have no bearing on future cases since
application of the scaffold standard to catenary scaffolds has now been
addressed in the revised scaffold standard [see 29 C.F.R. §
1926.451(g)(I)], and, in any case, I would vacate for the reasons
discussed.

17. I would further note that the Second Circuit Court of Appeals has
disallowed safety belts as an alternative means of means of protection
under guardrail standards. /See Spancrete Northeast, Inc. v. OSHRC/, 905
F.2d 589, 593-94 (2d Cir. 1990)(as safety belt violations must be
separately cited under personal protective equipment standard, safety
belts may not be treated by Secretary as an "equivalent" alternative to
guardrails where guardrails are infeasible).

18. Title 29 U.S.C. § 652(5).

19. A containment is a tent-like temporary structure suspended
underneath the roadbed which would totally enclose an area of the steel
framework. The purpose was to provide an environmental barrier against
the atmospheric distribution of the airborne materials generated by the
blasting and painting taking place inside.

20. By the time of the inspection safety nets were in place. (Tr. 282).

21. Instance a refers to a particular employee "shot blasting in a
stationary position on a 45 degree beam" while his "safety belts lanyard
hook was just clipped to the flange...." Instance b describes "[a]n
employee...in a stationary post setting pick cables on 90 degree
columns" while his "safety belts lanyard hook was just clipped to the
flange...." Instance c portrays "[a]n employee in a stationary
position...securing sna[t]ch blocks for pick cables on 90 degree
columns...and the safety belts lanyard hook was clipped to the flange."

22. Instance d describes "an employee walking across the lower beam to
gain access to next work location without fall protection devices or
systems being utilized." The next instance, e, refers to "employees
setting 5/8" cable for safety nets were cooning and walking lower beams
without fall protection systems or devices being utilized...."
Similarly, instance f mentions "employees setting pick and safety cables
were cooning beams without fall protection devices or systems being
utilized...." Finally, instance g describes "an employee...working from
an unprotected scaffold pick to secure picks to cable without fall
protection devices or systems being utilized."

23. Respondent eventually installed horizontal cables along the outside
of the outer most columns of structural steel as part of its rigging
plan. (Tr. 493-494).

24. The Compliance Officer's testimony and attempt to rely on ANSI
standards or OSHA standards published after the inspection in this case
is misplaced. Such pronouncements are irrelevant to the conditions as
they existed at the time of the alleged violations.

25. Instance g is not duplicative of Citation No. 1, item 1 because the
Commission has held that "safety belts are not 'equivalent protection'
when the standard requires guardrails." /Armstrong Steel Erectors,
Inc./, 17 BNA OSHC 1385, 1389 (No. 92-0262, 1995)(Citations omitted.).

26. Other affirmative defenses raised by Respondent in its answer were
not carried forward with supporting evidence in the hearing nor are they
argued in Respondent's post-hearing brief. They are deemed to have been
abandoned.

27. Since the Compliance Officer stated that the only violation he found
on this inspection was the one which was cited, it is reasonable to
infer that Respondent was in compliance with all other applicable
standards at that time.