___________________________________
SECRETARY OF LABOR,                :
                                   :
         Complainant,              :
                                   :
         v.                        :      OSHRC Docket No. 95-0343
                                   :
STAR BRITE CONSTRUCTION CO., INC., :
                                   :
         Respondent.               :
___________________________________:





*/DECISION/*//



Before: ROGERS, Chairman; and EISENBREY, Commissioner.



BY THE COMMISSION:



Star Brite Construction Co., Inc. ("Star Brite"), a roofing and general
construction company, was engaged in replacing a low-pitched roof at the
Newark Bus Complex from May through mid-December 1994. On January 19,
1995, after an investigation by the Occupational Safety and Health
Administration ("OSHA"), the Secretary issued three citations for
serious, non-serious and willful violations of various construction
safety and health standards under the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678 ("the Act"). Star Brite contested the
citations, and a hearing was held before Administrative Law Judge
Richard DeBenedetto, who affirmed eleven items, vacated five items, and
assessed total penalties of $60,550.^(1) <#N_1_> At issue on review are
two items alleging willful violations of two fall protection standards
and three items alleging serious violations of three compressed gas
cylinder standards. For the reasons that follow, we affirm the judge's
decision finding a willful violation of 29 C.F.R. § 1926.500(g)(5) and
reverse his decision to vacate the three cylinder items. The Commission
also affirms a violation of 29 C.F.R. § 1926.500(g)(1), but is unable to
reach agreement on the issue of whether the violation was willful. To
resolve this impasse, the Commission affirms that portion of the judge's
decision classifying the violation as willful, but accords it the
precedential value of an unreviewed judge's decision.//



*I. Background*

Star Brite's work at the Newark Bus Complex was performed in two
sections under two contracts with New Jersey Transit Corporation ("New
Jersey Transit"). The first roof section, identified in the record as
NBC-1, covered a 336,000 square foot area and was replaced between May
and September 1994. The second section, identified as NBC-2, covered an
adjacent area of 206,720 square feet and was replaced between September
and mid-December 1994. Both NBC-1 and NBC-2 were divided into smaller
roof areas by a network of 4-foot concrete parapet walls. The ground to
eave height of the building was approximately 25 feet. Open edges
existed on the north and east sides of NBC-1. The entire length of the
east side roof edge of NBC-2 was open. A 9- by 12-foot elevator
enclosure located along that edge projected out from the roof line and
also had no barrier at its edge.

On October 19, 1994, an OSHA compliance officer visited the NBC-2 site
in response to an informal complaint. After observing employees handling
materials at the unprotected east edge of NBC-2, the compliance officer
entered the job site where he met George Lynardakis ("Lynardakis"), who
identified himself as the project manager for Star Brite. While
inspecting the roof, the compliance officer also observed six oxygen
cylinders and three acetylene cylinders lying on their sides without
valve caps in place. Lynardakis told the compliance officer that the
cylinders belonged to Star Brite, but that he did not know who placed
them on the roof or how long they had been there. The compliance officer
reviewed OSHA's fall protection standards with Lynardakis and
specifically advised him of the fall protection requirements for working
in a roof edge materials handling and storage area. Lynardakis arranged
to have unsecured guardrails assembled around the open edges of the
elevator area and promised to secure and extend the railings
approximately 20 feet on each side of the elevator area along the
unprotected east edge as recommended by the compliance officer.^(2) <#N_2_>

During a follow-up inspection on November 4, 1994, the compliance
officer again observed employees handling materials at the east edge of
the roof where guardrails had been neither secured nor extended. Star
Brite's owner, Kostas Smilios ("Smilios"), who was supervising the work
on that day, claimed that he was not permitted under the terms of his
contract to secure guardrails to the roof. However, later that day he
was able to secure the railings to a wood nailer (a piece of wood that
ran along the edge of the building) without having to penetrate the
roof. When the compliance officer returned to the site on November 7,
1994, he found that the guardrails remained adequately secured around
the materials handling and storage area and were also extended along the
roof edge on each side of the area. A warning line system had also been
erected at the materials handling and storage access area. On November
8, 1994, during another visit to the site, and again on November 9,
1994, when visiting the site for a preliminary closing conference, the
compliance officer found no additional exposure to hazardous conditions.

When the compliance officer returned to the NBC-2 site on December 13,
1994, the guardrails had been removed entirely. Although a warning line
had been strung along part of the east edge, it was down and hanging
against the side of the building in a roof edge area where employees
were performing built-up roofing work.



*II. Citation 2, Items 1 and 2.*



  * *Did the judge err in affirming Item 1 of Citation 2, which alleged
    a willful violation of 29 C.F.R 1926.500(g)(1)?*^(3) <#N_3_>



Compliance with section 1926.500(g)(1) requires that employers protect
employees from fall hazards during the performance of built-up roofing
work by using one of the methods described in the standard. A safety
monitoring system alone is acceptable only on roofs fifty feet or less
in width where mechanical equipment is not being used or stored. On
roofs greater than fifty feet in width, either a motion-stopping-safety
(MSS) system or a warning line system must be used. If an employer
elects to comply by using a warning line system, it must be supplemented
for employees working in areas between the warning line and the roof
edge by either an MSS system or, where mechanical equipment is not being
used or stored, a safety monitoring system.

The Secretary alleges that the standard was violated both before and
during the OSHA inspection. The alleged instances occurring before the
inspection were based on reports to the compliance officer and testimony
at the hearing from six witnesses: Star Brite's subcontractor, Frank
Knight ("Knight"), three employees from New Jersey Transit and two
employees from LS Transit Systems, the construction manager. The judge
had "serious questions concerning the probative value" of their
testimony and did not rely on it. We agree with the judge's assessment
of this evidence. Although these witnesses testified that they observed
Star Brite employees performing built-up roofing work at the unprotected
edges of NBC-1, none specified the size of the roof areas where such
instances occurred -- an essential fact for determining the type of fall
protection that would have been required to comply with the standard.
Both the Secretary and Star Brite submitted exhibits representing the
layout of the roof, but neither the exhibits nor the testimony
pertaining to them established the precise locations of the 4-foot
parapet walls that divided the roof into separate, non-contiguous roof
areas.^(4) <#N_4_>In addition, none of the Secretary's witnesses knew
whether a safety monitoring system had been used during the performance
of built-up roofing work at the edge, and their recollections differed
as to the use of other forms of fall protection. Knight testified that
he had erected both guardrails and a warning line at NBC-1 to protect
his own employees. However, three witnesses from New Jersey Transit
recalled seeing neither guardrails nor warning lines in use at NBC-1.
One witness from LS Transit Systems remembered seeing Knight's warning
lines and recalled seeing guardrails that she thought might have been
erected by Knight. Another LS Transit Systems witness remembered seeing
Knight's warning line at the east edge of NBC-1 but did not recall any
guardrails.

While not relying on the testimony of these six witnesses, the judge
nevertheless found that pre-inspection violations were established. We
disagree. The judge reasoned that "the deficiencies noted by the
compliance officer during his several inspections of NBC-2 undoubtedly
existed while roofing work was being performed on NBC-1." To establish a
/prima facie/ case of violation, however, the Secretary must establish
the applicability of the cited standard, noncompliance with the terms of
the standard, employee exposure to the violative condition, and employer
knowledge of the violative condition. /See Astra Pharmaceutical Prods./,
9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No.
78-6247, 1981), /aff'd in pertinent part/, 681 F.2d 69 (1st Cir. 1982).
The Secretary has not presented evidence that establishes any of these
elements for the pre-inspection allegations.

The record shows that during the OSHA investigation, a violation of
section 1926.500(g)(1) occurred at NBC-2 on one occasion, December 13,
1994. On that date, the compliance officer observed employees performing
built-up roofing work on a roof that measured greater than fifty feet in
width in an area where mechanical equipment was not being used or
stored.^(5) <#N_5_> In these circumstances, the standard required an MSS
system, or a warning line system supplemented by a safety monitor for
employees working between the warning line and the roof edge.

It is undisputed that when the compliance officer arrived at the site,
employees were not protected by either an MSS system or a properly
erected warning line system. Instead, a warning line was hanging against
the side of the building below the roof edge area where employees were
working. Photographs taken by the compliance officer from the ground
level reveal six employees working at the unprotected roof edge -- one
employee was working with a mop; others were standing or kneeling at the
roof edge. The compliance officer testified that by the time he reached
the roof, the employees had scattered. Some were attempting to reset the
warning line while others continued to perform built-up roofing work
away from the edge and inside the warning line. However, the reset line
wasimproperly staggered and erected at an average distance of three feet
instead of six feet from the edge as required by the standard.^(6)
<#N_6_> Thus, Star Brite was not in compliance with the standard's
requirements when the compliance officer first arrived at the site or
when he reached the roof.

*Feasibility*: Star Brite argues that a warning line system would have
made work difficult and impractical for employees performing built-up
roofing work at the roof edge. This is essentially a claim of
infeasibility. To establish this affirmative defense, an employer must
show 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, or (b)
there was no feasible alternative means of protection." /V.I.P.
Structures, Inc/., 16 BNA OSHC 1873, 1874, 1993-95 CCH OSHD paragraph
30,485, p. 42,109 (No. 91-1167, 1994). To support its claim, Star Brite
points to Smilios' testimony that a warning line would have been
"meaningless" or an impediment to the employees who were unrolling felt
and mopping tar at the roof edge. However, Smilios also testified that a
mop handle is ten feet in length and that a "mopper" stands
approximately ten feet away from the roof edge while mopping tar along
the perimeter of the roof. He did not explain why a mopper could not
have positioned the ten-foot mop handle under the warning line while
mopping the roof edge area or why a "feltman" similarly could not have
stepped beneath the warning line to unroll the felt while being
monitored. Employers must exercise some creativity in seeking to achieve
compliance. /Gregory & Cook Inc/., 17 BNA OSHC 1189, 1191, 1993-95 CCH
OSHD ¶ 30,757, p. 42,735 (No. 92-1891, 1995). /See also Pitt-Des Moines,
Inc/., 16 BNA OSHC 1429, 1433, 1993-95 CCH OSHD ¶ 30,225, p. 41,608 (No.
90-1349, 1993) (Commission "has long recognized that standards will, in
some instances, require some creativity on the part of employers seeking
to achieve compliance"); /Walker Towing/, 14 BNA OSHC 2072, 2075,
1991-93 CCH OSHD ¶ 29,239, p. 39,159 (No. 87-1359, 1991) (employer must
comply with standard to the extent feasible). Thus, we find no support
for Star Brite's argument that a warning line would have made work
infeasible at the roof edge area outside of the warning line.^(7)
<#N_7_> Therefore, we reject Star Brite's infeasibility claim and affirm
the violation.

*/De Minimis/***: We also reject Star Brite's claim that if a violation
is affirmed, it should be reclassified as /de minimis/. A violation is
/de minimis/ when a deviation from the standard has no "direct or
immediate" relationship to employee safety. /Dover Elevator Co./, 15 BNA
OSHC 1378, 1382, 1991-93 CCH OSHD ¶ 29,524, p. 39,850 (No. 88-2642,
1991). Star Brite relies on the fact that the roof was no more than one
and a half feet wider than the 50-foot limit in the standard permitting
the use of a safety monitoring system alone. However, this fact has no
bearing on the issue of whether the violation had a direct or immediate
relationship to employee safety. OSHA explained in its preamble to the
standard that the use of a safety monitoring system alone is limited to
roofs 50 feet or less because workers are never more than 25 feet from
an edge and are therefore aware of the proximity of the fall hazard, and
a warning line on such roofs would create a very narrow protected work
area inside the line. 45 Fed. Reg. at 75,619-621. It is not our role to
assess the wisdom of the standard. /See Nooter Constr. Co/, 16 BNA OSHC
1572, 1575, 1993-95 CCH OSHD ¶ 30,345, p. 41,838 (No. 91-0237, 1994).

Star Brite also argues that a /de minimis/ classification is warranted
because its use of a safety monitoring system alone provided protection
comparable to that which would have been afforded by technical
compliance with the standard. Star Brite relies on /Phoenix Roofing,
Inc. v. Secretary of Labor/, 874 F.2d. 1027 (5th Cir. 1989) ("/Phoenix
Roofing/"), a case in which the court held that an employer's use of a
safety monitoring system alone during the performance of built-up
roofing work at the unprotected edge of a roof wider than fifty feet was
a /de minimis/ violation.^(8) <#N_8_>

Star Brite's reliance on /Phoenix Roofing/ is misplaced. Critical to the
Sixth Circuit's decision in that case was the fact that "the citation
was based /only/ upon the compliance officer's observation of employees
working near the edge of the roof." /Id./ at 1032. (Emphasis added.) The
court reasoned that "the additional presence of a warning line would be
only for the protection of employees working further from the
perimeter." /Id./ Unlike /Phoenix Roofing/, the citation here was based
not only on employees working at the roof edge but also on employees
working farther from the perimeter where a warning line would have
served to warn and remind them that they were approaching or working
near a fall hazard. We find that Star Brite's failure to erect the
required warning line exposed its employees to a 25-foot fall hazard at
the unprotected roof edge and had a direct and immediate relationship to
employee safety. Accordingly, we find that the violation is not /de
minimis/.

*Willfulness*: The judge found that "[t]he evidence that clearly
demonstrates the willful quality of Star Brite's noncompliance is its
repeated failure to make reasonable efforts to establish and maintain
the safeguards called for by the standards despite the exhortations of
the compliance officer." A violation is willful if committed with
intentional, knowing, or voluntary disregard for the requirements of the
Act, or with plain indifference to employee safety. /A.P. O'Horo Co./,
14 BNA OSHC 2004, 2012, 1991-93 CCH OSHD ¶ 29,223, p. 39,133 (No.
85-0369, 1991). /See also Babcock & Willcox Co. v. OSHRC/, 622 F.2d
1160, 1167 (3rd Cir. 1980); /Frank Irey, Jr. v. OSHRC/, 519 F.2d 1200
(3rd Cir. 1974). "A willful violation is differentiated from a
nonwillful violation by a heightened awareness, a conscious disregard or
plain indifference to employee safety." /Hartford Roofing Co./, 17 BNA
OSHC 1361, 1363, 1995-97 CCH OSHD ¶ 30,857, p. 42,933 (No. 92-3855,
1995). /See also General Motors Corp., Electro-Motive Div.,/ 14 BNA OSHC
2064, 2068, 1991-93 CCH OSHC ¶ 29,240, p. 39,168 (No. 82-630, 1991)
(consolidated); /Williams Enterprises, Inc./, 13 BNA OSHC 1249,
1256-1257, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987).

The Commission is unable to reach agreement on the characterization of
the violation. Commissioner Eisenbrey would affirm the judge's willful
finding. Frank Knight testified that during the work on NBC-1 he
specifically discussed with Smilios the need for fall protection at the
worksite, explaining to Smilios that Knight was erecting various forms
of fall protection as required by his contract with Smilios and by
governing regulations. Knight also testified that when he told Smilios
that Smilios should install fall protection for his employees, Smilios
said that "it's a pain[;] [i]t takes too much time [and is] not worth
the trouble . . . ." According to Knight, he had many such conversations
with Smilios, including explicit discussion of a possible OSHA
inspection, to which Smilios responded, "[S]o what? They come here, they
give you a little bitty fine and that's it." Smilios denied that these
conversations occurred, testifying that he "never" discussed fall
protection with Knight.

Based on an evaluation of the veracity of Smilios' testimony on the
entire record before us,^(9) <#N_9_> and a comparison of the relative
specificity of Knight's testimony as compared to that of Smilios,
Commissioner Eisenbrey does not credit Smilios' denial of the fall
protection conversations with Knight. Smilios falsely testified that a
written safety program containing references to roofing safety was in
effect during the OSHA investigation, but it was later shown that the
document was actually amended to include those references only after the
OSHA investigation. Smilios also testified that George Lynardakis, Star
Brite's project manager, never told him that he was required to install
fall protection except for guardrails around an elevator shaft. But
Lynardakis admitted to the compliance officer that he both gave Smilios
a copy of the OSHA fall protection standard and informed Smilios of
Lynardakis' earlier agreement to install warning lines and guardrails.
Smilios further claimed that he and another employee had acted as safety
monitors on December 13, 1994, while a crew of "12 guys" worked on the
last section of the roof. In fact, Smilios was not at work on December
13. In addition, Smilios contradicted his own claim that he was unable
to secure guardrails to the roof by admitting at the hearing that he
realized from his first day on the job that he could have secured
guardrails to a wood nailer at the side of the building without having
to penetrate the roof. In Commissioner Eisenbrey's view, because such
inconsistencies and misrepresentations so weaken the reliability of
Smilios as a witness, no weight should be given to his testimony denying
the comments alleged by Knight. Commissioner Eisenbrey finds that in
contrast to the contradictions and inconsistencies in Smilios'
testimony, Knight's testimony was convincingly detailed, consistent, and
unequivocal. Accordingly, he credits Knight's testimony and finds that
it is unrebutted.

Commissioner Eisenbrey also finds that Star Brite was well aware of the
requirements of the standard. The company has a history of a prior
violation of the same standard, and its supervisor, Lynardakis, admitted
to the compliance officer during their discussion on October 19, 1994,
that Star Brite was knowledgeable about the fall protection requirements
on roofing jobs and had a "code book" of the requirements in its office.
Moreover, Knight's conversations with Smilios made him generally aware
of the need for fall protection for employees performing built-up
roofing along roof edges. Yet, despite this awareness, Smilios conveyed
to Knight a dismissive attitude about using fall protection,^(10)
<#N_10_> and Lynardakis permitted the employees under his direct
supervision to perform built-up roofing work on December 13, 1994,
without appropriate fall protection. Commissioner Eisenbrey would find
that Lynardakis' conduct is imputable to Star Brite and that his
deliberate failure to act in the face of a known duty further supports a
finding of plain indifference to employee safety. Thus, based on ample
evidence of Star Brite's heightened awareness of the standard's
requirements and plain indifference to employee safety, Commissioner
Eisenbrey would find that the violation was willful.

The Chairman finds that the Secretary has not proven by a preponderance
of the evidence that the violation was willful. In the Chairman's view,
the Secretary's case for willfulness rests primarily on the testimony of
Knight regarding Smilios' attitude towards safety. Knight's testimony
was contradicted by Smilios, but the judge failed to make a credibility
determination resolving the dispute. This deficiency would ordinarily
result in the Commission remanding the case to the judge for further
consideration and explanation. /See C. Kaufman, Inc/., 6 BNA OSHC 1295,
1298, 1977-78 CCH OSHD ¶ 22,481, p. 27,100 (No. 14249, 1978). However,
Judge DeBenedetto is no longer with the Commission. Without his
credibility findings, Chairman Rogers cannot resolve the conflicts in
the testimony. Thus she has no sufficient basis for crediting the
testimony of one witness over the other. The result, in her view, is
that the evidence of whether Star Brite did or did not commit a willful
violation of the standard is in balance. /See Sal Masonry Contractors,
Inc/., 15 BNA OSHC 1609, 1611,1991-93 CCH OSHD ¶ 29,673, p. 40,207
(No.87-2007, 1992). The Chairman would therefore vacate the willful
characterization because the Secretary failed to meet her burden of
proving willfulness by a preponderance of the evidence.

Furthermore, the record is unclear whether the compliance officer
discussed the specific fall protection requirements under section
1926.500(g)(1) before December 13, 1994, the day of the violation. The
compliance officer's discussions prior to December 13 did involve the
fall protection requirements under section 1929.500(g)(5), the violation
which the Chairman finds willful. Neither does the record support
finding willfulness through Star Brite's supervisor Lynardakis. The fact
that he may have made a general admission of Star Brite's familiarity
with fall protection requirements on roofing jobs and had a copy of a
"code book" in his office does not show knowledge of the standard at
issue here.

On review the Secretary asserts that Star Brite had "been cited under
the fall protection standards twice before." However, according to the
judge and the record, the company had, at the time of these alleged
violations, only one prior citation for violating section 1926.500(g)(1)
under notably different factual circumstances. As the judge stated in
his decision, that does not, by itself, establish willfulness. The
second citation that the Secretary refers to appears to be a citation
issued a number of months after the alleged violations in this case and
is therefore irrelevant for purposes of willfulness in this case.

Under section 12(f) of the Act, 29 U.S.C. § 661(f), official action can
only be taken by the Commission with the affirmative vote of at least
two members. To resolve the impasse over this classification issue,
Chairman Rogers and Commissioner Eisenbrey have agreed to affirm the
judge's decision to classify Star Brite's violation of 29 C.F.R. §
1926.500(g)(1) as willful and assess a penalty of $25,000, but to accord
that portion of the judge's decision the precedential value of an
unreviewed judge's decision. /See Marshall v. Sun Petroleum Products
Co./, 622 F.2d 1176 (3rd Cir. 1980), /cert. denied/, 449 U.S. 1061, 101
S.Ct. 784, 66 L.Ed. 2d 604 (1980).



  * Did the judge err in affirming Item 2 of Citation 2, which alleged a
    willful violation of 29 C.F.R 1926.500(g)(5).^(11) <#N_11_>



Section 1926.500(g)(5) requires that employees working in a roof edge
materials handling or storage area be protected by the use of an MSS
system along all unprotected roof sides and edges of the area. Here
again, the Secretary alleged that the standard was violated both before
and during the OSHA investigation. However, for the reasons discussed
previously, we find that the testimony by Knight and the witnesses from
New Jersey Transit and LS Transit Systems does not provide a sufficient
factual basis for establishing exposure, knowledge, or non-compliance
for conditions occurring before the OSHA investigation.

However, the record does establish that the standard was violated during
the OSHA investigation at NBC-2. When the compliance officer first
visited the site on October 19, 1994, he observed two employees lifting
containers by rope to the roof edge, another employee pulling a rope to
pump tar to the roof, and other employees moving tar luggers near the
edge. No MSS system was in place to protect these employees. After a
discussion with the compliance officer, Lynardakis assembled guardrails
around the roof edge materials handling and storage area and promised to
secure them to the roof. However, when the compliance officer returned
to the site on November 4, 1994, he found that the guardrails remained
unsecured while employees continued to operate the tar delivery system
at the roof edge. Smilios protested to the compliance officer at that
time that he could not secure the guardrails because he was not
permitted to penetrate the roof, but later that day he did secure and
extend guardrails around the roof edge materials handling area. At the
hearing, Smilios admitted that he had known from his first day on the
job that it was possible to secure guardrails to a wood nailer at the
side of the building. When the compliance officer returned to the site
on December 13, 1994, the guardrails were gone. Although steam was
coming from the tar luggers at the roof edge on that date, the
compliance officer did not observe employees working in the area.

In defense, Star Brite argues that because materials were routinely
delivered, handled and stored at least six feet away from the roof edge,
compliance with the standard did not require an MSS system. This claim
is belied by the photographic evidence in the record, which shows that
the pipes through which hot tar was pumped up to the roof were leaning
against and across the roof edge area both during tar delivery and while
not in operation. These pipes were essential and integral components of
the tar delivery system, and we agree with the judge that the
configuration of the pipes traversing the roof edge qualified the area
as a roof edge materials handling and storage area. Section
1926.500(g)(5)(iii) specifically addresses such a configuration by
requiring that "[w]hen guardrails are used at bitumen pipe outlets, a
minimum of four feet shall be erected on each side." Here, the pipes
leaned against and across the roof edge on each side of the east edge
elevator area. Attached to the end of each pipe was three and a half
feet of flexible hose through which employees poured hot tar directly
into the tar luggers. Employees worked not only behind but also
alongside the luggers during tar delivery, and compliance with the
standard clearly required that employees be protected by an MSS system
while working in this area.

Star Brite also argues that the incident of an employee lifting a
container by rope to the roof edge elevator area on October 19, 1994,
was the result of unpreventable employee misconduct. To establish this
affirmative defense, an employer must show that it adequately
communicated work rules to prevent the behavior and effectively enforced
the rules when violations were discovered. /See Nooter Constr. Co/, 16
BNA OSHC at 1578, 1993-95 CCH OSHD at p. 41,841. Here, the written
safety program that was in place at NBC-2 during the OSHA inspection
made no reference to roofing safety matters. Smilios testified that
during the job he instructed employees to stay "approximately, not,
better than six feet" away from the roof edge when materials were
delivered to the roof. He also testified that during weekly safety
meetings he told his employees "the rules they got to follow for working
on the roof. I mean, everybody got to watch the mop man. . . . That's
the standard in the industry." He provided no additional details about
other safety information that he imparted to his employees, and the
record fails to show that any work rules prohibiting the cited conduct
were adequately communicated to employees.^(12) <#N_12_> Regarding
enforcement, Star Brite claims that it reprimanded one employee for
hoisting a container to the roof edge. The photographic evidence,
however, shows that not just one, but at least two, employees were
involved in lifting containers to the roof edge without adequate fall
protection. We agree with the judge that Star Brite presented "no
credible evidence to show that [it] had a safety program that was
implemented in any significant way at the bus complex project." We
therefore find that the unpreventable employee misconduct defense fails
and that Star Brite violated 29 C.F.R. § 1926.500(g)(5).

*Willfulness*: We agree with the judge that the violation is willful.
During the compliance officer's first visit to the site on October 19,
1994, he reviewed the requirements of the standard with Lynardakis, who
expressly acknowledged that Star Brite was well aware of OSHA's roofing
safety standards. Indeed, Star Brite began taking steps toward
compliance before the compliance officer left the worksite. Lynardakis
began assembling unsecured guardrails around the roof edge materials
handling and storage area, but failed to bring the area into compliance
with the standard by securing the guardrails. /See Caterpillar Inc./, 17
BNA OSHC 1731, 1733, 1995-97 CCH OSHD ¶ 31,134, pp. 43,483-84 (No.
93-373, 1996), /aff'd/, 122 F.3d 437 (7th Cir. 1997). When the
compliance officer returned to the site on November 4, 1994, the
guardrails remained unsecured while employees continued to work in the
roof edge materials handling and storage area. The compliance officer
testified that the unsecured guardrails may have presented an even
greater hazard than no guardrails at all by giving employees a false
sense of being protected. The facts here show that Star Brite had a
heightened awareness of the standard's requirements, and we agree with
the judge that by ignoring the compliance officer's advice on proper
compliance, Star Brite demonstrated plain indifference to employee
safety. Accordingly, we find that the violation of 29 C.F.R. §
1926.500(g)(5) is willful.

*Penalty*: The Secretary proposed a penalty of $56,000, which included a
20 percent reduction for size. After giving Star Brite credit for its
effort to limit employee exposure to the unprotected roof edge during
the performance of built-up roofing work, the judge assessed a penalty
of $25,000. On review, Star Brite argues that it should have been given
an additional 10 percent reduction for safety history and a 40 percent
reduction for size.

Under section 17(j) of the Act, 29 U.S.C. 666(j), the Commission must,
in its assessment of penalties, give due consideration to the employer's
prior history, any good faith, the size of its business, and the gravity
of the cited violations. /See J.A. Jones Constr. Co.,/ 15 BNA OSHC 2201,
2214, 1991-93 CCH OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993). Although
the Secretary has devised a formula that assigns certain percentage
discounts to some of these factors, the Commission independently
evaluates the factors and assesses a penalty amount that it deems
appropriate. /Hern Iron Works, Inc/., 16 BNA OSHC 1619, 1622, 1993-95
CCH OSHD 30,363, p. 41,882 (No. 88-1962, 1994). Star Brite is a small
employer with thirty employees. It has a history of a prior fall
protection violation in 1991. The gravity of the current violation is
high. Several employees were exposed to a 25-foot fall from the edge of
the roof on October 19, 1994, and again two weeks later on November 4,
1994. The judge credited Star Brite for its efforts to limit employee
exposure. After giving due consideration to all of the penalty factors,
we find that a penalty of $25,000 is appropriate.^(13) <#N_13_>

*III. Citation 1, items 7, 8, AND 9: Cylinder Storage Items*

We next consider whether the judge erred in vacating the items alleging
serious violations of 29 C.F.R. § 1926.350(a)(1) for failure to have
valve protection caps in place on compressed gas cylinders, 29 C.F.R. §
1926.350(a)(9) for failure to secure compressed gas cylinders in an
upright position, and 29 C.F.R. § 1926.350(a)(10) for failure to store
oxygen cylinders separately from acetylene cylinders.^(14) <#N_14_>The
judge gave dispositive weight to Smilios' testimony that the cylinders
were empty. Smilios was the only witness other than the compliance
officer to testify concerning the cylinders. The judge concluded that
the Secretary failed to prove that the cylinders posed a hazard
addressed by the standards.^(15) <#N_15_> We disagree with the judge's
finding.

Under longstanding Commission precedent, there is a rebuttable
presumption that compressed gas cylinders are "wholly or partly full, or
contain residual gas, and present a hazard." /Huber, Hunt & Nichols,
Inc./ 4 BNA OSHC 1406, 1409, 1976-77 CCH OSHD ¶ 20,837, p. 25,012 (No.
6007, 1976) (/"Huber");/ /see also Williams Enterprises, Inc/., 7 BNA
OSHC 1015, 1018-1019, 1979 CCH OSHD ¶ 23,279, p. 28,156 (No. 14748,
1979);/Williams Enterprises of Georgia, Inc/., 7 BNA OSHC 1900, 1903,
1979 CCH OSHD 24,003, 29,137-38 (No. 13875, 1979); /Trinity Industries,
Inc./ 9 BNA OSHC 1515, 1519-20, 1981 CCH OSHD ¶ 25, 297, p. 31,323 (No.
77-3909, 1981). In /Huber/, the Commission characterized a completely
empty gas cylinder that presented no hazard as "a hypothetical situation
that rarely if ever occurs in practice." /Huber/, 4 BNA OSHC at 1409,
1976-77 CCH OSHD at p. 25,012. We find that Smilios' testimony did not
rebut the residual gas presumption here. Smilios had no first-hand
knowledge of the condition of the cylinders. He was not present at the
NBC-2 site on October 19, 1994, when Star Brite was cited for the
cylinder violations. His claim that the cylinders were empty was based
on his interpretation of the photographic exhibits and on his argument
that he had a worksite policy regarding the safe handling and storage of
compressed gas cylinders. He explained that his policy required that
cylinders be placed on their sides after use and then taken down from
the roof at the end of every day or every two days. However, the record
shows no evidence that this policy was communicated to, or followed by,
employees. In addition, the compliance officer noted that the cylinders
were not marked "empty" or "MT" as required for empty cylinders under 29
C.F.R. § 1926.350(j).^(16) <#N_16_> Given that Smilios was not a witness
to the cited condition, we agree with the Secretary that his testimony
did not rebut the presumption that the cylinders contained residual gas.
/Cf. Andrew Catapano Enterprises Inc./, 17 BNA OSHC 1777, 1781-82,
1995-97 CCH OSHD ¶ 31,180, p. 43,680 (Nos. 90-0050, 1996) (consolidated)
(interpretation of photographic exhibit by company vice president who
was not a witness to cited condition fails to rebut Secretary's /prima
facie/ case that cylinders were not in use). /See also All Purpose
Crane, Inc./, 13 BNA OSHC 1236, 1239, 1986-87 CCH OSHD ¶ 27,877, p.
36,550 (No. 82-284, 1987) (Commission has the same authority as the
judge to evaluate the relative qualifications of various witnesses and
weigh their testimony in the light of the totality of the record).
Because we find that Smilios' testimony failed to rebut the residual gas
presumption, and there is no other rebuttal evidence on this issue, we
reverse the judge's decision and affirm the citation for serious
violations of the compressed gas cylinder standards at 29 C.F.R. §§
1926.350(a)(1), 1926.350(a)(9), and 1926.350(a)(10).^(17) <#N_17_>

*Penalty*: The Secretary proposed penalties of $750 for each of the
three cylinder violations, taking into account Star Brite's size and
immediate abatement. There is no evidence of a prior history of
violation of this standard, but the gravity of the violation is high.
Nine cylinders were stored in violation of the standard, and the cited
conditions existed for as long as two days. Therefore, we find that a
$750 penalty for each of the three gas cylinder items is appropriate
under Section 17(j) of the Act.



*ORDER*

We affirm item 2 of Citation 2 for willful violation of 29 C.F.R. §
1926.500(g)(5) and assess a penalty of $25,000. We also affirm items 7,
8, and 9 of Citation 1 for serious violations of 29 C.F.R. §
1926.350(a)(1), 29 C.F.R. § 1926.350(a)(9), and 29 C.F.R. §
1926.350(a)(10), respectively, and assess penalties of $750 for each
item. We affirm a violation of 29 C.F.R. § 1926.500(g)(1), and to
resolve the impasse on the characterization of the violation, the
Commissioners agree to affirm the judge's finding that the violation is
willful and affirm his assessment of a $25,000 penalty. The portion of
the judge's decision concerning the characterization of Star Brite's
violation of 29 C.F.R. § 1926.500(g)(1) is accorded the precedential
value of an unreviewed judge's decision.

SO ORDERED.







/s/

Thomasina V. Rogers

Chairman







/s/

Ross Eisenbrey

Commissioner



Dated: December 20, 2001

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

___________________________________
SECRETARY OF LABOR,                :
                                   :
         Complainant,              :
                                   :
         v.                        :      OSHRC Docket No. 95-0343
                                   :
STAR BRITE CONSTRUCTION CO., INC., :
                                   :
         Respondent.               :
___________________________________:

Appearances:

Jane Snell Brunner, Esq.                            Thomas H. Hirsch, Esq.
Office of the Solicitor                             "Cooper Gables" Professional Building
U.S. Department of Labor                            1001 Deal Road
	For Complainant				          Ocean, New Jersey 07712
									  For Respondent



Before: Administrative Law Judge Richard DeBenedetto:



*DECISION AND ORDER *

Star Brite was cited on January 19, 1995, for serious and nonserious
violations of various construction safety and health standards. A
citation was also issued for willful violations of two roofing
standards. The Secretary has proposed penalties totaling $132,200. Star
Brite contested the citations and the penalties.

Star Brite is a roofing company which was engaged by New Jersey Transit
Corporation (NJ Transit) to remove and replace the roof of the Newark
Bus Complex spanning an area of about one million square feet. The
roofing work was performed in two separate phases. The first phase
involved one section of the roof designated as "NBC-1", the other
section was designated "NBC-2". The work on NBC-1 was performed during
the period between mid-May and mid-September of 1994; NBC-2 was done
between late September and mid-December of 1994. Star Brite engaged the
services of another company, Frank Knight Roofing Co., Inc., as a
subcontractor with responsibility for performing part of the roofing
work on NBC-1 from mid-May to the first week of July 1994.

Three citations were issued against Star Brite. The alleged violations
relating to the 12-item citation number 1 and the single-item citation
number 3 involve NBC-2 excepting two subitems of the former^(18)
<#N_18_>. The locus of the violations described in willful citation
number 2 is alleged to have occurred at both NBC-1 and NBC-2, the basic
charges involving the perimeter guarding standard for built-up roofing
work and the fall protection standard for roof-edge materials handling
and storage areas.

The initial OSHA inspection of the Newark Bus Complex occurred on
October 19, 1994, which was prompted by an "informal complaint" from an
unnamed person not employed by Star Brite. Picketing by a labor union
was going on at the site (Tr. 190-91, 427-28). Inasmuch as the roofing
work on NBC-1 had been completed several weeks before OSHA's arrival at
the site, the Secretary's case involving NBC-1 rests entirely upon the
testimony of witnesses who were present at the bus complex while the
roofing work was in progress and who were employed by either NJ Transit
or LS Transit Systems which was hired by the former to provide
construction management services in connection with the bus complex
project. The Secretary also relies on the testimony of Frank Knight,
owner of the roofing company Star Brite subcontracted to perform work on
NBC-1.

*GUARDING THE ROOF PERIMETERS*

The fall-protection standard at 29 C.F.R.§ 1926.500 (g) (1) states that
when workers are engaged in applying a weather-proofing cover (called
"built-up-roofing work") on a flat or low-pitched roof more than 16 feet
above the ground, the employer must take precautions to protect the
employees from falling from the open sides and edges of the roof. The
prescribed methods for safeguarding a roof perimeter include the use of
a motion-stopping-safety system or "MSS system", a warning line (a
waist-high rope, wire, or chain supported by stanchions) strung around
the perimeter at least six feet from the roof edge^(19) <#N_19_>

. Where employees work between the warning line and the roof edge, the
employer is required to use either a MSS system or (where mechanical
equipment is not being used or stored)^(20) <#N_20_> a safety monitor to
alert workers to proceed with caution. Under § 1926.500 (g) (4),
mechanical equipment may not be used or stored between the warning line
and the roof edge unless employees are protected by a MSS system; and
under § 1926.500 (g)(5), employees working in the six-foot "roof edge
materials handling or storage area" must be protected by a MSS system.

When compliance officer Gary Jensen approached the building on the first
visit of October 19, he saw some workers on the NBC-2 roof at the
materials handling area located in the vicinity of the roof edge. One
employee was observed handling a lugger^(21) <#N_21_>, another was at
the edge of the roof using a rope to hoist a fuel can from the ground;
at one point he was leaning over the edge of the roof (Tr. 189-90,
425-35, Exhs. C-11 through C-19). No MSS system was being used. The
height of the roof ranged from 25 to 30 feet, and a network of concrete
parapets existed over the vast interior of the roof (Tr. 199-200).

The compliance officer eventually met up with the person in charge of
the roofers at that time, George Lynardakis, Star Brite's project
manager, with whom an "opening conference" was held prior to conducting
an inspection of the activities on the roof. During the conference
Lynardakis assured the compliance officer that Star Brite was well aware
of the OSHA requirements for fall protection (Tr. 241-42). On being
advised of the need to install guardrails along the perimeter of the
roof where the materials handling area was located, Lynardakis promised
the compliance officer that it would be done (Tr. 249-50). The
compliance officer also testified that Lynardakis admitted on October 19
that fall protection should have been provided in the materials handling
area, and that at least three employees were within two feet of the roof
edge in that area (Tr. 301-02). When questioned about the use of warning
lines, Lynardakis told the compliance officer that the lines were used
during the NBC-1 job but that the lines were not available for the job
at hand because they were being used on another jobsite (Tr. 429-30).

The compliance officer returned to the bus complex about two weeks
later, on November 4, at which time work was still being performed near
the roof edge at the same materials handling area. Guardrails had been
set up at the perimeter but the compliance officer found that they were
not secured or sufficiently extended along the roof edge as discussed
with Lynardakis during the initial visit (Tr. 249-50).

Lynardakis was not at the jobsite during the November 4 inspection,
instead, the compliance officer met with Star Brite's principal owner,
Kostas Smilios, who denied knowing anything about the discussion that
took place between the compliance officer and Lynardakis on October 19
concerning guardrails.. According to the compliance officer, Smilios
stated that he did not know what a warning line was, but that the lines
would be ordered to comply with the regulation. Although Smilios
initially balked at the idea of placing guardrails along the roof
perimeter, claiming that bolting the rails to the roof edge would damage
the roof's integrity, later that day guardrails were installed. The
compliance officer's testimony, as to whether the guardrails that were
set up during the inspection were fully secured, can be fairly described
by turns as ambiguous, vague, and self-contradictory (Tr. 252-54,
459-62). Following repeated probing on cross-examination the compliance
officer acknowledged that the perimeter guarding was eventually
installed to his satisfaction (Tr. 491).

The compliance officer's November 4 visit was focused to a large extent
on a matter involving the dome-shaped plastic covers of the skylights
newly installed by Star Brite. Labels were attached to the domes
inscribed: "Danger. Risk of Falling." The compliance officer construed
this warning as indicating that the "plastic dome will not support
bodily weight" (Tr. 476, 498), and he insisted that Smilios either
install guardrails around the skylights or keep his employees six feet
away from them. Smilios told the compliance officer that the skylight
specifications indicated that the domes, which were acrylic with
aluminum frames, were capable of supporting up to 400 pounds, and that
the roofing work could not be done if he was required to put up
guardrails or stop his men from working within a six-foot zone around
the skylights. The dispute escalated to the point where the compliance
officer threatened to get a court order to force Star Brite to correct
the condition as an "imminent danger". The compliance officer also
threatened to contact the federal marshal's office to deal with the
situation. Whereupon Smilios ordered his employees to stop working and
thus the workday ended. Some time soon after the November 4 inspection,
the compliance officer learned that the skylight covers were indeed
capable of sustaining the weight of at least a 200-pound person, in
accordance with the OSHA standard at § 1926.500 (f)(iv)(Tr. 475-83,
493,499).

The compliance officer returned to the bus complex to resume his
inspection on November 7, 8 and 9; however, no roofing work was being
performed during those days (Tr. 256-57). When he visited the site on
December 13, he saw the roofers working "directly at the edge of
NBC-2...without fall protection" (Tr. 257; Exhs.. C-6, C-7, C-8). He
also noticed that the guardrails which had been installed on November 4
along the perimeter of the materials handling area had been removed
despite apparent signs indicating the same materials handling area was
still being used (Tr. 258-59). The compliance officer testified that
when he confronted Lynardakis regarding the lack of guardrails,
Lynardakis essentially told him that "he had to get the job done and he
couldn't provide protection everywhere on the job" (Tr. 263).

As previously noted, the Secretary's perimeter guarding case relating to
the NBC-1 roofing work, which began in mid-May 1994 and ended by
mid-September of 1994, before the matter came to the attention of OSHA,
rests upon the testimony of six witnesses, including Star Brite's
subcontractor, Frank Knight, who, along with his own employees,
performed part of the work on NBC-1 from mid-May to the first week of
July 1994. The five other witnesses were employed at the bus complex by
NJ Transit or LS Transit Systems while the roofing work was being performed.

Frank Knight testified that while he supervised his own crew almost
every day, he observed Star Brite's employees working at the edge of the
NBC-1 roof without any fall protection, and that he saw no indications
that Star Brite used a monitoring system as a safeguard against falling
from the roof (Tr 128-29, 165-66). He stated that he had several
conversations with Kostas Smilios, Star Brite's owner, concerning the
need for fall protection on the NBC-1 project but Smilios rejected his
advice (Tr. 130-31). Knight described the safety systems he used for
protecting his employees from falling, including warning lines,
guardrail systems and safety belts tied off to air conditioning units
and other steel objects that were "permanent fixtures of the roof" (Tr.
131-34).

Henry Santos, NJ Transit's project manager for both NBC-1 and NBC-2,
visited the bus complex once, sometimes twice, a week from April to
December 1994. He testified that he saw no guardrails or any other fall
protection being used on the roof of NBC-1 and NBC-2 until the arrival
of the OSHA compliance officer in October 1994 when the work on NBC-2
was in progress (Tr. 18-20, 27). He recalled that, prior to October
1994, he observed men working within one or two feet of the roof edge at
both NBC-1 and NBC-2; on one occasion a worker was seen near the edge of
the roof signaling the crane operator for lifting materials onto the
roof of NBC-1; although seeing, "for the most part", chutes set up at
the roof edges, there were occasions when "a handful of employees" were
observed "dumping material over the edge of the roof into dumpsters" at
both NBC-1 and NBC-2 (Tr. 26-29). On cross-examination, he acknowledged
that he did not raise any question with Star Brite regarding the need
for fall protection, that he did not know what a safety monitoring
system was, and he did not observe Star Brite's employees while they
were actually installing the roof (Tr. 29).

Penelope Page worked for NJ Transit as a supervisor of "employee and
facility safety", with primary responsibility, during the construction
project , to monitor the contractors to assure their operations did not
expose NJ Transit employees to any hazards. She visited the bus complex
about twice a week during the NBC-1 and NBC-2 roof construction from May
through December 1994. Although she never was on the roof, she was able
to observe from the ground workers positioned at the open edge of the
roof of both NBC-1 and NBC-2 giving instructions for lifting materials
to the roof and throwing materials off the roof into dumpsters, at which
times no fall protection was apparent (Tr. 32-37).

Robert Latinsky, employed as an engineer by LS Transit Systems, acted as
construction manager of the project. He was present at the site on a
daily basis, including the entire time Star Brite was there from May
1994 to January 1995. On the NBC-1 roof, there were two open edges, one
on the north side the other on the east. He observed workers at the edge
of the roof at both the north and the east sides of the complex while
they were performing material handling and roofing work, specifically,
installing "fascia caps" over the roof edge, unloading materials onto
the roof, and discarding fragments from the old roof. He testified that
the use of guardrails was not observed by him until after the arrival of
the compliance officer in October 1994, and the only use of warning
lines he could recall was on the east side of NBC-1 where Frank Knight's
employees were working (Tr. 54-69). On cross-examination, Latinsky
acknowledged that he did not understand what a safety monitoring system
was, and that he was unable to tell in any detail how Star Brite
actually went about performing its roofing work (Tr. 77-78).

Judith Lagano worked for LS Transit Systems as an inspector from May
1994 to late 1994. She inspected both the NBC-1 and the NBC-2 roofing
projects almost every day. Her job required her to be on the roof almost
all the time. Her testimony as to her observations regarding Star
Brite's employees working at or near the edge of the roof of NBC-1 and
NBC-2 without fall protection was similar to Latinsky's (Tr. 95-104).
She stated that although there were chutes used for moving the debris
from the roof into the dumpsters below, there were occasions when the
roofers threw the materials over the edge of the NBC-1 roof (Tr. 107).
She admitted having no knowledge as to what a safety monitoring system
was (Tr. 112).

Joseph Word worked at the bus complex as a safety specialist for NJ
Transit; from July through September 1994 he visited the NBC-1 and NBC-2
roofing projects every other week. He testified that on a number of
occasions he observed roofers at the edge of the roof of NBC-1 and NBC-2
throwing debris off the roof, and he also saw them applying tar while
they were five to 10 feet from the roof's edge. During those occasions,
the use of guardrails, warning lines or safety belts was not apparent to
him (Tr. 114-19).

Star Brite presented two witnesses in support of its case: Kostas
Smilios and Vincent Gallagher, a self-employed safety consultant. The
substance of Star Brite's case concerning both NBC-1 and NBC-2 was set
forth through the testimony of Smilios, which is summarized as follows:
except for the tar which was pumped up to the roof by means of a pipe,
all materials and supplies were delivered to the roof by fork-lift
and/or crane. Those materials and supplies were deposited by such
mechanized equipment at least six feet from the roof's edge. As for the
tar, the delivery pipe reached a height of eight feet above the roof
surface and was attached to a three-foot-long flexible pipe that was
bent into the lugger when pouring the tar. Star Brite required its
employees to keep the luggers six feet away from the roof edge when
receiving the tar. The pouring of the tar was controlled by a rope
located 10 to 15 feet from the roof edge. On those occasions when the
roofers were required to work within the six-foot edge area, a safety
monitoring system was used. These procedures would appear to satisfy all
the requirements for guarding the roof perimeters except for the warning
lines. With respect to this safety measure, Star Brite argues that using
warning lines would have prevented it from accomplishing the work (Tr.
708-41).

Certain critical facts are set out at the outset to resolve the
difficulties presented by the confusing network of conflicting
testimony. Smilios, Star Brite's chief witness, admitted that warning
lines had not been erected on the roof of either NBC-1 or NBC-2 until
after the compliance officer arrived at the bus complex in October 1994
at which time roofing work on NBC-1 had been completed and work on NBC-2
was in progress (Tr. 813). Smilios also acknowledged that the
Secretary's photographic evidence shows Star Brite's project manager
Lynardakis and another employee positioned about 4 feet away from the
unguarded roof edge of the materials handling area (Tr. 829-31). A
series of video stills taken by the compliance officer on October 19,
1994, depict a roofer at the roof edge of the materials handling area,
without fall protection, lifting a large fuel can from the ground by a
rope (Exhs.. C-12, C-15 through C-18).

If we are to regard Smilios's testimony in a favorable manner as to the
issues of guarding the roof perimeters of NBC-1 and NBC-2, including the
materials handling areas, then we must accept the notion that it is
valid to design a program, for preventing exposure to fall hazards of
roofing work, that primarily depends not upon a motion-stopping system
or a warning line system, but upon each employee's attitude and ability
to respect and strictly follow work rules that (as Star Brite claims)
require them to restrict their work activities to an area no less than 6
feet away from the roof edge except only when they are required to work
within the 6-foot roof-edge area itself, in which case a safety monitor
would be used. Such a notion is clearly inconsistent with the standards
for guarding roof perimeters.

Star Brite's defense is undermined by a number of factors. For starters,
it should be noted that its safety program which was in effect during
the time of the NBC-1 and NBC-2 projects, did not contain any specific
references to fall protection (Tr. 835-36; Exh. C-42). Star Brite was
previously cited for violating the 500 (g) (1) standard for guarding
roof perimeters in June 1991 dealing with a 55-foot fall hazard. That
citation became a final order in January 1992 (Tr. 237). On the first
day of the OSHA inspection in October 1994, Lynardakis told the
compliance officer that Star Brite was well aware of the OSHA
requirements for fall protection, but when pressed by the compliance
officer to see warning lines for the jobsite at hand, Lynardakis said
the lines were being used on another roofing project. During the
November 4 inspection, the warning lines were still not erected and when
the compliance officer raised the question with Smilios he denied
knowing what a warning line was, but assured the compliance officer that
the lines would be obtained in order to achieve compliance (Tr. 280,
429-30). When the compliance officer visited the site on December 13,
the only warning lines that had been erected were in areas of the roof
where the work was not actually being performed (Tr. 228-30; Exhs. C-6
through C-10). So much for the warning lines.

Smilios's testimony regarding the use of a safety monitoring system is
vague and unconvincing. He described only one incident with some degree
of specificity when a safety monitoring system was used, and that
involved NBC-1: as the roofing operation on the east side of the roof
approached the edge of the roof, both he and his stepson monitored the
roofers for a period of 2 hours while they were working three feet from
the roof edge. He went on to state that the same procedure was used on
the north side of NBC-1 (Tr. 725-32). No such testimony was offered
regarding the NBC-2 project. In fact, we are left with the impression
that the entire roofing work on NBC-2 did not require the roofers to
work within the 6-foot roof-edge area except on December 13 when the
last stage of the process called for installing the "gravel stop", a
metal "finish" adjoining the edge of the roof (Tr. 788; Exhs. C-6
through C-8).

Smilios was questioned on direct examination regarding the December 13
"gravel stop" work, and the need to remove the guardrails that had been
installed along the roof perimeter at the urging of the compliance
officer. Although Smilios was not at the bus complex on the day in
question, the following exchange took place (Tr. 787-88):

Q: Do you know if those railings were down on December 13th, other than
by pictures and videos and all the testimony indicates?

A: That was [sic] down because I told my people to take it down.

Q: Okay. Why did you tell your people to take down the railings?

A: Because it was the last day of roofing, and it was [sic] getting
prepared, you know, to install the gravel stop.

Q: All right. Were, were the, do you know that the railings were taken
down on the 13th or taken down on the 12th, the 11th? do you know the
exact date they were taken down?

A: During the working day, they was up [sic].

Q: Okay. And you mentioned the word "gravel stop" had to be installed?

A: Yes.

Q: Explain what that is?

A: Gravel stop is the , actually is the finish of the roof on the, on
the perimeter of the roof. As the finish [sic], you put in the metal to
close the perimeter of the roof.

Q: And would the railings that were up conflict with the installation of
that?

A: Of course. The railings was installed on the place the gravel stop
was [sic].



No testimony was offered concerning the use of a safety monitoring
system, a safety measure that the photographic evidence indicates was
called for once the guardrails were removed. One need only glance at the
photographs marked as Exhibits C-6 through C-9, taken by the compliance
officer on December 13, to conclude that the roofing work went beyond
the mere installation of a "gravel stop".

As previously noted, Star Brite pins its defense on Smilios's testimony
which was contradicted by the Secretary's witnesses in many material
respects. The essence of the perimeter guarding issues, then, is the
credibility of the witnesses. And here it must be said that Smilios's
uncorroborated testimony as to Star Brite's safety program for fall
protection lacked rationality, suffered from internal inconsistency and
failed to hang together with other evidence of record.

Smilios failed to make a convincing case that warning lines were
infeasible because such lines prevented the roofers from performing
their work. It is reasonable to presume that the lines and supportive
stanchions could have been moved temporarily to accommodate the roofing
process and then replaced in the manner indicated by the 500 (g) (3)
standard. That has long been the common sense practice of the roofing
trade, a practice not inconsistent with the roofing regulations. Star
Brite offered no testimony addressing this obvious factual presumption

From the first day of the compliance officer's arrival at the bus
complex on October 19, 1994, to the last day of his physical inspection
on December 13, 1994, the same materials handling area on the roof above
the elevator enclosure lacked the guardrails or any other
motion-stopping system required by the 500 (g) standard, except for the
"quick fix" that took place during the November 4 inspection. The
compliance officer presented credible testimony that on December 13 he
observed luggers containing steaming tar in locations that were likely
serviced by the cited materials handling area (Tr. 258-59). In fact, the
Secretary's photographic Exhibit 9 depicts roofers using mop carts and
mops on December 13.

Star Brite's repeated efforts to prove that the materials handling area
in question was not actually a "roof edge" materials handling area
within the meaning of the 500 (g) standard has no merit. In her brief,
the Secretary has taken great pains, including making geometric
calculations, to refute Star Brite's contention that the arrangement of
the pipe system allowed for delivery of the tar to take place at least
six feet from the roof edge. Secretary's brief at 41-44. Both parties
pursue their arguments upon grounds entirely too narrow and artificial
in light of the purpose of the safety standard and the realities of the
working conditions at the site.

It is not the ultimate delivery point of the tar that determines whether
a materials handling area falls within the boundary of the six-foot-wide
"roof edge". On NBC-2, the piping ranged from the ground level on up to
the roof where the pipe extended some 7 or 8 feet above the roof but
sloped over the roof at an angle that required the luggers and roofers
to be in proximity to the roof edge area, where the surface of the roof
was covered by tar apparently spilled when the tar was poured from the
pipe into the luggers. Obviously, the tar spill was an unavoidable
consequence of the delivery system in the materials handling area.
Photographic evidence indicates that the spills ran within six feet of
the roof edge (Exh. C-25). The configuration of the dual delivery pipes
traversing the six-foot-wide "roof edge" area and the presence of oil
spills in proximity thereto, constitute more than enough physical
presence of the delivery system to qualify as a "roof edge materials
handling area" within the meaning of the standard.

One further aspect of Star Brite's defenses against the Secretary's
perimeter guarding case warrants comment. When the compliance officer
made his initial visit to the bus complex on October 19, 1994, George
Lynardakis was the only management official on site representing Star
Brite. Their discussions regarding the need for guarding the open sides
and edges of the roof were apparently limited only to the use of warning
lines and guardrails, neither of which admittedly were not being used
during the NBC-2 roofing work. According to the compliance officer's
unrebutted testimony, Lynardakis assured the compliance officer on that
same day that warning lines would be erected, and guardrails would be
installed along the edges of the materials handling area extending a
considerable distance beyond the four-foot minimum required for a
hoisting area under the regulations (Tr. 249-50)^(22) <#N_22_>.

On the follow-up inspection on November 4, the compliance officer
encountered Smilios instead of Lynardakis who was not at the site that
day. Upon surveying the working area of the roof, the compliance officer
noted that the guardrails along the sides of the materials handling area
were not secured and had not been extended beyond the hoisting area, and
warning lines had not been erected, as Lynardakis had promised. What was
noticeably absent during the ensuing discussion between the compliance
officer and Smilios was any reference to Star Brite's safety program for
fall protection claimed to have been in place at the time. Instead,
Smilios acquiesced in the compliance officer's exhortations after
initially asserting that guardrails could not be secured to the roof
(Tr. 253-54).

The one thing that Smilios cannot be accused of is being timid or
reticent when faced with an issue concerning his business affairs. His
boldness in asserting his views is clearly evidenced during his
confrontation with the compliance officer over whether the skylight
covers were capable of sustaining the weight prescribed by regulations.
It turned out that Smilios was right about the adequacy of the skylight
covers but the matter was not put to rest before Smilios ordered his
roofers to stop working for the remainder of the day (Tr. 482-83).

It is reasonable to believe that if in fact Star Brite had a safety
program in place to prevent its employees from being exposed to a fall
hazard, as Smilios described in his testimony, he would have made such a
program the focal point of his discussions with the compliance officer
during the November 4 inspection. One should also think that during the
October 19 OSHA visit to the worksite, Lynardakis would have brought to
the compliance officer's attention whatever relevant safety measures
were in use pursuant to Star Brite's claimed safety rules. In fact, no
one acting in behalf of Star Brite made any attempt to demonstrate to
the compliance officer any significant control procedures for
safeguarding against fall hazards. The record compels the conclusion
that the safety measures described by Smilios were designed for the
hearing, not for the NBC-1 and NBC-2 roofing project.

*WILLFULNESS*

A violation is willful if it is committed with intentional, knowing or
voluntary disregard for the requirements of the Occupational Safety and
Health Act (the "Act")./L.E. Myers Co./, 16 BNA OSHC 1037, 1046, 1993
CCH OSHD ¶ 30,016, p. 41,132 (No. 90-945, 1993); /Williams Enterp/., 13
BNA OSHC 1249, 1256, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No.
85-355,1987). A willful violation is differentiated from a nonwillful
violation by a heightened awareness, a conscious disregard or plain
indifference to employee safety. /General Motors Corp., Electro-Motive
Div./, 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ¶ 29,240, p. 39,168 (No.
82-630, 1991) (consolidated); /Williams/, 13 BNA OSHC at 1256-57,
1986-87 CCH OSHD at p. 36,509. That Star Brite has a history of a prior
roofing violation does not, by itself, establish current deficiencies in
its safety program were willful. While there are serious questions
concerning the probative value of the testimony presented by the
Secretary's witnesses as to some aspects of the NBC-1 job, it is not
open to question that the deficiencies noted by the compliance officer
during his several inspections of NBC-2 undoubtedly existed while
roofing work was being performed on NBC-1.

The evidence that clearly demonstrates the willful quality of Star
Brite's noncompliance is its repeated failure to make reasonable efforts
to establish and maintain the safeguards called for by the standards
despite the exhortations of the compliance officer. While it is true
that Smilios eventually arranged to have all the perimeter guarding
erected before the end of the work day on November 4 (even more than was
called for by the standards), that corrective action was short-lived;
conditions on the roof during the December 13 inspection again failed to
meet the perimeter guarding standards.

The Secretary proposes a penalty of $56,000 for each of the two violated
roofing standards, one covering general perimeter guarding and the other
the roof-edge materials handling area. Under the OSH Act, a willful
violation calls for a minimum penalty of $5,000 and a maximum of $70,000
per violation. Section 17(a) of the Act, 29 U.S.C. § 666(a).

Section 17(j) of the Act, 29 U.S.C. § 666(j), provides that penalties be
assessed on the basis of four factors: the size of the employer's
business, the gravity of the violation, the good faith of the employer,
and the history of previous violations. Generally, the gravity of a
violation is the primary element in the penalty assessment. /Trinity
Indus/., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD ¶ 29,582, p. 40,033 (No.
88-2691, 1992). The gravity of a particular violation depends upon such
matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that
any injury would result. The roof of the bus complex was 25 to 30 feet
high. Had an employee fallen off the roof serious injury would have been
a substantially probable result

In it's brief, Star Brite mounts an extensive attack against the
compliance officer, particularly regarding the willful violations,
"because of what, at best, could be called, a personality conflict with
Mr. Smilios" Star Brite's brief at 36. In view of the evidence that has
been highlighted above, it should be clear that the Secretary's case
does not rest upon the compliance officer's testimony alone.

Of particular pertinence to the question of penalties is the compliance
officer's own testimony acknowledging that he was influenced in some
measure by the dispute he had with Smilios over the skylight question.
In fact, his inspection file contains the entry that Smilios stopped
work on November 4 "to make OSHA look bad" (Tr. 504-07, 516-17). The
record contains other statements of the compliance officer suggesting
that, to a degree, he harbored a feeling of ill will toward Smilios (Tr.
486-89). Did the compliance officer's unfavorable attitude improperly
influence the Secretary's proposal to assess $56,000 for each of the two
willful violations?

The compliance officer was questioned by counsel for both parties
regarding the criteria that was applied in assessing the penalties
proposed for each of the alleged violations. The compliance officer's
rationale was consistent with the penalty guidelines set out in OSHA's
/Field Inspection Reference Manual/, September 1994^(23) <#N_23_>. There
is, of course, a latitude inherent in the penalty assessment process
within which a determination is made in a particular case according to
the circumstances and one's judgement. There is no evidence indicating
that the penalties proposed by the Secretary in this case were motivated
by hostility or any other improper purpose.

None of the Secretary's witnesses was able to offer any significant
testimony regarding the process actually used by Star Brite in
performing the built-up roofing work. The compliance officer's
observations, for the most part, were limited to the activities at the
materials handling area of NBC-2 (Tr. 572-76). Smilios testified that
there were 20 to 25 roofers employed at the site (Tr. 715); that the
time spent working close to the roof edge was limited in that the
weatherproofing cover system was applied by starting at the roof edge
and then moving 25 feet to the interior of the roof (Tr. 725-32). Such a
methodical procedure would likely have an attenuating affect on the
gravity of the violations by having the attention of the employees
directed immediately to the roof edge each time the roof covering is
applied to a particular area.

It is concluded that the record warrants assessing a penalty of $25,000
for each of the two willful violations. Star Brite's contention that the
two roofing violations should be grouped as a single violation lacks
merit. The two violations involve two distinct aspects of the roofing
work that was done at the site.

*SAFETY TRAINING*

Items 1a and 1b of citation number 1 relate to the general safety
training standard at § 1926.21 (b) (2) and the specific roofing work
training standard at § 1926.500 (g) (6) (i):

The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other exposure
to illness or injury.

§ 1926.21 (b)(2).

The employer shall provide a training program for all employees engaged
in built- up roofing work so that they are able to recognize and deal
with the hazards of falling associated with working near a roof
perimeter. The employees shall also be trained in the safety procedures
to be followed in order to prevent such falls.

§ 1926.500 (g)(6)(i).



The Secretary alleges that Star Brite seriously violated the training
standards relating to the use of personal protective equipment and
approved gasoline cans, the proper storage of compressed gas cylinders,
and the fall hazards associated with built-up roofing work. According to
the uncontradicted testimony of the compliance officer, one of Star
Brite's employees who was interviewed during the inspection was observed
at ground level handling chunks of asphalt, placing them in a kettle to
boil. He was not wearing any safety equipment to protect his face and
eyes from splashes of hot tar, and he was using unapproved gas cans. The
employee, Arsilia Barrera, informed the compliance officer that he did
not receive any safety training in connection with the NBC projects and
was not instructed in the use of approved gas cans (Tr. 308-12). When
the compliance officer interviewed four other named employees on October
19, 1994, they told him that they did not receive any safety training
for the NBC projects, including safeguarding against fall hazards during
the performance of the roofing work. Only one employee (unidentified)
stated that he had received training by Star Brite, but it was given at
another construction project (Tr. 315-18, 592).

Star Brite relies on the testimony of Smilios to counter the safety
training charges brought by the Secretary (Tr. 800-01). His testimony
lacked the specificity and the conviction necessary to outweigh the
admissions made to the compliance officer by Star Brite' s employees.

During cross-examination, the compliance officer acknowledged that some
conditions such as hot tar and gas coming into contact with fire are
obvious hazards, Star Brite's counsel apparently suggesting that
training in such matters would be superfluous (Tr. 593-94). Such a
notion misconceives the fundamental purposes of the standards requiring
the employer to educate and train his employees, whether it be an
employer conducting a small and less hazardous operation or one
conducting a more complex and hazardous operation, and that is to assure
that employees are aware of the employer's attitude and approach toward
accident prevention, and to assure that employees understand and
properly follow established work procedures for their safety.

The record contains no credible evidence to show that Star Brite had a
safety program that was implemented in any significant way at the bus
complex project. A violation may be deemed serious "where, although the
accident itself is merely possible (i.e., in statutory terms 'could
result from a condition'), there is a substantial probability of serious
injury if it does occur." /Shaw Const/., Inc, v. OSHRC, 534 F.2d 1183,
1185 (5th Cir. 1976). 29 U.S.C. § 666 (k). The potential consequences of
failing to comply with the training standards were serious, and the
proposed penalty of $2,100 for the grouped violations is assessed.

*HAZARD COMMUNICATION*

Item 2 of citation number 1 alleges that Star Brite failed to inform and
train its employees concerning the hazardous chemicals associated with
handling hot asphalt, propane and gasoline, in accordance with the
standard at § 1926.59 (h):

Employers shall provide employees with effective information and
training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new physical or health hazard the
employees have not previously been trained about is introduced into
their work area. Information and training may be designed to cover
categories of hazards (e.g., flammability, carcinogenicity) or specific
chemicals. Chemical-specific information must always be available
through labels and material safety data sheets.



Star Brite contends that this alleged violation should have been grouped
with the safety training standards covered in items 1a and 1b of the
citation. As Star Brite notes in its brief, the compliance officer
acknowledged that training violations are normally grouped, but OSHA's
grouping policy does not include the citation for hazardous chemicals.
Star Brite's brief at 62-63. Such a policy is not unreasonable and
easily falls within the scope of OSHA's enforcement discretion.

The compliance officer testified that during the inspection he
interviewed five named employees and questioned them about the hazard
communication program. He stated that all five employees demonstrated a
lack of knowledge and training regarding the matter (Tr. 329).

Star Brite introduced into evidence its hazard communication program
(Exh. R-12) which Smilios stated was in existence at the time of the
OSHA inspection, including material safety data sheets. Smilios also
testified that all employees were informed that the material safety data
sheets were located in the on-site office trailer, and that they were
given that information "[when they came on the job" (Tr. 799).

Star Brite's system of simply providing a written hazard communication
program at the job site and informing employees of its availability and
where it can be found does not meet the standard's "effective
information and training" requirements. Training necessarily denotes
some reasonable form of instruction by telling and showing what the
employees are to know based on clearly defined objectives consistent
with the standard. That Star Brite's safety program was ineffective is
clearly shown by the employees negative responses to the compliance
officer's questions.

Star Brite was previously cited for violating the same hazard
communication standard (Tr. 332). The $2100 penalty proposed by the
secretary is appropriate.

*LIQUIFIED PETROLEUM GAS CONTAINER*

Item 6 of citation number 1 alleges that a propane cylinder which was
being used to fuel the hot kettle operation, was tilted and leaning on
roofing materials in violation of the standard at § 1926.153 (g) which
reads as follows:

/Containers and regulating equipment installed outside of buildings or
structures. /	Containers shall be upright upon firm foundations or
otherwise firmly secured. The possible effect on the outlet piping of
settling shall be guarded against by a flexible connection or special
fitting. (Italics in original.)



The compliance officer testified that during the November 4 inspection
he observed that the propane cylinder being used was tilted at a 45
degree angle and leaning on two packages of asphalt. The compliance
officer was told by the employee tending the kettle operation that
tilting the cylinder produced a hotter flame (Tr. 333-34). The
compliance officer was unable to explain why the cylinder had to be
"upright", and he admitted that the cylinder was secured by the packages
of roofing materials upon which it rested unless someone came along and
removed the roofing materials in a careless manner so as to cause the
container to drop to the ground (Tr. 340, 588-89).

There are two grounds for dismissing this item of the citation. The
first is the compliance officer's own self-defeating testimony. The
second is the language of the standard itself, which specifically
addresses "/containers...installed outside of buildings or structures./"
The term "install" connotes a fixed or permanent condition, as when the
electrician or the plumber places in position lighting fixtures or
plumbing apparatus. The portable propane cylinder in question was not
installed at the site but was temporarily placed near the kettle during
the asphalt heating process.

*COMPRESSED GAS CYLINDERS*

Items 7 and 8 of citation number 1 allege that a number of compressed
gas cylinders stored on the roof of NBC-2 did not have valve protection
caps in place and were not secured in an upright position as required by
§ 1926.350 (a)(1) and § 1926.350 (a)(9) respectively.

Star Brite does not dispute the Secretary's allegations that there were
compressed gas cylinders stored on the roof without protection caps on
the valves and that they were lying on their sides and not secured in an
upright position. Star Brite claims, in substance, that the Secretary
has failed to prove that a hazard existed as a consequence of these
conditions. Star Brite's brief at 64-66. I agree.

Smilios testified that the cylinders in question, as depicted in the
Secretary's photo Exhibits C-32, C-33, C-34, were empty (Tr. 793-94). On
cross-examination of the compliance officer, the following exchange took
place (Tr. 615-16).

Q: Now, however, you never checked to see whether these tanks were
empty; did you?

A: I, I didn't, I had no way of knowing whether they were totally empty
or, or partially filled. There's no gauge on them. However, I did not
believe that they were empty because they weren't marked as being empty,
as they should have been, if they were empty. That's why I thought this--

Q: You didn't do any investigation whether they were empty or not; you
didn't ask; you didn't check; you didn't pick them up; you didn't move
them; you didn't do anything? You saw them lying there and assumed they
were full; right?

A: I wouldn't say I assumed they were full. I--

Q: Assumed they were half full?

A: It, it didn't really matter as far as wether they were full or not,
to be honest with you.

Q: It didn't matter--

A: The regulation requires--

Q: --if they were empty?

A: The regulation requires that they be upright, you know, at all times.

Q: Even if they're empty?

A: Yes. The standard doesn't say only if they're full or have gas in them.

Q: And what about the oxygen tanks?

A: (No verbal response.)

Q: Why, what's the hazard that the employees were exposed to because
they were lying down and not standing up?

A: I can't really point out a particular hazard other than possibly, you
know, having them laying lengthwise and possibly rolling on the ground,
you know--

Q: Well, I think Judge DeBenedetto already took care of that telling you
he would not accept--

A: Okay, but--

Q: --the indication that they were a tripping hazard. All right. So you
don't, other than the potential tripping hazard, you're not aware of any
other hazard relative to the oxygen tanks?

A: Well, again, other than, than if they are jarred and rolled against
each other and possibly damaged, they, they're supposed to be secured in
an upright manner so they can't move. Again, you--

Q: Well, were those tanks stored in an area where there was a, a
difference in grade, an angle where they could roll?

A: No, not really.



The compliance officer's assertion that it didn't matter whether the
cylinders were full or not is quite remarkable in light of his earlier
testimony: When he was asked on direct examination to explain the hazard
resulting from absence of a valve protection cap, he stated (Tr. 345):

A Well, if the valve was damaged and the cylinders were under pressure,
they could become a projectile, as with the propane we talked about
earlier, and could severely injure an employee that happened to be in
that area.



When the same question was asked on cross-examination, the compliance
officer stated (Tr. 605):

A You get damage, you get damage to the valve, and when you get to
those, those cylinders, when you go to use those cylinders, you could
have, possible have, a rupture or become a projectile once they're
filled with gas.



With respect to item 8 dealing with compressed gas cylinders (six oxygen
and three acetylene) that were not secured in an upright position, the
compliance officer described the consequent safety problems as
threefold: a tripping hazard; rolling and colliding with each other
thereby weakening the cylinder wall causing it to become a "projectile";
and in the case of the acetylene cylinders, the acetone ingredient "is
prone to be an unstable chemical" and setting the cylinders in a
position other than upright would cause it to be unstable (Tr. 347-48, 614).

Except for the alleged tripping hazard, it is clear that the hazards
described by the compliance officer are conditioned upon the presence of
some quantity of compressed gas in the cylinders. The compliance
officer's notion that the regulations in question do not require that
the cylinders "have gas in them" has no merit.

The regulations dealing with compressed gas cylinders appear in Subpart
J under the caption gas welding and cutting. Paragraph (c) of § 1926.350
expressly addresses the question raised by the compliance officer:

(c) /Treatment of Cylinders/. (1) Cylinders, /whether full or empty/,
shall not be used as rollers or supports.

(2) No person other than the gas supplier shall attempt to mix gases in
a cylinder. No one except the owner of the cylinder or person authorized
by him, shall refill a cylinder. No one shall use a cylinder's contents
for purposes other than those intended by the supplier. All cylinders
used shall meet the Department of Transportation requirements published
in 49 CFR part 178, subpart C, Specification for Cylinders.

(3) No damaged or defective cylinder shall be used. (Emphasis added.)



Where, as here, the regulations expressly mention within the specified
frame of reference that cylinders be treated in a prescribed manner
"whether full or empty", the express quantitative language may not be
added by implication throughout the standards listed under § 1926.350.
As for OSHA's concern about a tripping hazard, it should have considered
issuing a citation under the housekeeping standard at § 1926.250 (c)
which appears in Subpart H-Materials Handling, Storage and
Disposal,^(24) <#N_24_> instead of the § 1926.350 standard which does
not address a tripping hazard.

The guiding principle controlling the disposition of the issue is set
forth in /Trinity Indus., Inc/., 9 BNA OSHC 1515, 1520, 1981 CCH OSHD P
25, 297, p. 31, 323 (No. 77-3909, 1981)(citing /Williams Enterprises,
Inc/., 7 BNA OSHC 1015, 1018-19, 1979 CCH OSHD P 24,003 (No. 14748,
1979), where the commission said that the cylinder storage standards
raise a rebuttable presumption that cylinders contain at least enough
residual gas to present a hazard.

In the instant case, unlike the /Trinity/ and /Williams/ cases, we have
a witness, Smilios, who gave positive and uncontradicted testimony that
the cylinders were empty. Secretary's counsel made no effort to
undermine, or call into question, Smilios's testimony on this point in
any way. The presumption, therefore, is rebutted.

It is inappropriate for the Secretary to argue that an adverse inference
should be drawn regarding the quantity of gas in the cylinders because
of Star Brite's failure to call Lynardakis as a witness to elucidate the
matter, since he was at the worksite when the cylinders were observed by
the compliance officer. Star Brite's brief at 70-71. The course taken in
the examination of the witnesses and the fact that Lynardakis was
susceptible to subpoena by either party render the uncalled-witness rule
inapplicable.

*SEPARATING OXYGEN CYLINDERS FROM FUEL-GAS CYLINDERS*

Item 9 of the citation involves the same oxygen and acetylene cylinders
that were discussed in items 7 and 8. Here, the secretary also faces the
same problems in satisfying her burden of proof. The standard alleged to
be violated is § 1926.350 (a)(10), which requires that oxygen cylinders
in storage shall be separated from fuel-gas cylinders a minimum distance
of 20 feet or by a five-foot-high noncombustible barrier.

The compliance officer described the hazard as follows (Tr. 351):

A The hazard is that acetylene and oxygen are supposed to be separate in
case there is a fire in the building, which fires on roofing jobs are
not--are known to occur. I'm not saying that every day, but oxygen and
acetylene are used together for cutting operation because the oxygen
accelerates the acetylene and burns hotter, like 6,000 degrees, and
that's why, as a safeguard to workers and everybody concerned, they
should be separated whenever they're not in use on a cart.



During cross-examination, the compliance officer's testimony was once
again challenged regarding the hazard issue (Tr. 617-18):

Q: Now, would you agree that if those tanks were all empty, then this
would not be a violation?

A: No, because, again, the standard doesn't specify full or empty.

Q: But if they're empty, can you tell me what the hazard is?

A: There would probably be no hazard if they're totally empty; however--

Q: So, if there's no hazard, there can't be a violation; can there?

A: Well, through my training, I've always been told that they can never
be completely empty. There's always some gas in there.

Q: And through your training, if they are empty, even though there's,
then you're saying there might be some residual. Have you been trained
as to evaluate what risk and the probability of risk when you're dealing
with an empty tank that might have a residual amount of either oxygen or
acetylene in it?

A: (No verbal response.)

Q: Did they tell you, you know, well, if it's full, you got, you know,
an 80 percent chance of explosion; if it's just a residual, you got a 10
percent; did you ever review anything about that at all?

A: No, I can't say I specifically recall that.



Thus, the Secretary's case again rests upon the residual-gas presumption
which has been rebutted by Smilios's positive and uncontradicted
testimony that the cylinders were empty. The Secretary having failed to
prove that a hazard existed, item 9 of the citation must be dismissed.

*GROUND-FAULT PROTECTION*

Item 10 of the citation is based upon the undisputed facts that one of
Star Brite's employees used a double insulated power drill which was
connected to one of the building's permanently wired receptacle outlets
by means of several extension cords. The receptacle was equipped with a
ground-fault circuit interrupter (GFCI); however, when the compliance
officer tested the receptacle, the GFCI did not function (Tr. 353,623).

Star Brite was cited for violating the standard at § 1926.404
(b)(1)(ii), which provides, in relevant part:

All 120 volt, single-phase, 15- and 20- ampere receptacle outlets on
construction sites, which are not a part of the permanent wiring of the
building or structure and which are in use by employees, shall have
approved ground-fault circuit interrupters for personnel protection.



The Secretary contends that Star Brite failed to carry out its
responsibility to test the GFCI for defects either "before using the
drill" or "that day", presumably at the start of the work day (Tr. 355).
Secretary's brief at 73-74.

Star Brite raises several defenses . First, it is contended that the
standard does not apply in this case because the receptacle outlet was
part of the permanent wiring of the building and there is nothing to
indicate "there is a violation if the ground fault interrupter
malfunctions". Star Brite's brief at 68. The use of extension cords to
connect the power drill to the building's permanently wired outlet does
not make the extension cords a part of the permanent wiring and does not
obviate the necessity to comply with the GFCI standard. /Otis Elevator
Co/., 17 BNA OSHC 1166, 1167 (No. 90-2046, 1995).

Implicit in the ground-fault protection standard is that where, as here,
a receptacle outlet is equipped with a GFCI, the employer must exercise
reasonable diligence to assure the GFCI operates properly.

Star Brite's second defense is that the GFCI was tested during the
morning of the inspection, as testified to by Smilios. A conflicting
account was given by the compliance officer who testified that when he
questioned Smilios about the GFCI during the inspection, Smilios told
him that the GFCI was tested "approximately a month ago", or "within the
last month" (Tr. 623, 659).

Smilios's testimony came near the end of the five-day hearing, and bore
the earmark of an afterthought. His testimony was so difficult to follow
at times that even his own attorney admitted being confused (Tr.
943-44). Smilios's testimony that the GFCI was tested on the morning of
the inspection cannot be given any weight.

Did Star Brite fail to act with reasonable diligence by not testing the
GFCI either before use or at the start of the work day, as the Secretary
argues? There is no testing requirement expressed in the GFCI standard;
however, paragraph (b)(1)(iii) of § 1926.404 specifies certain testing
requirements under the "assured equipment grounding conductor program",
which is an alternative to using a GFCI for achieving ground-fault
protection:

(iii) Assured equipment grounding conductor program. The employer shall
establish and implement an assured equipment grounding conductor program
on construction sites covering all cord sets, receptacles which are not
a part of the building or structure, and equipment connected by cord and
plug which are available for use or used by employees. This program
shall comply with the following minimum requirements:



* * * *



(C) Each cord set, attachment cap, plug and receptacle of cord sets, and
any equipment connected by cord and plug, except cord sets and
receptacles which are fixed and not exposed to damage, shall be visually
inspected before each day's use for external defects, such as deformed
or missing pins or insulation damage, and for indications of possible
internal damage. Equipment found defective or damaged shall not be used
until repaired.

(D) The following tests shall be performed on all cord sets, receptacles
which are not a part of the permanent wiring of the building or
structure, and cord-and plug- connected equipment required to be grounded:

(1) All equipment grounding conductors shall be tested for continuity
and shall be electrically continuous.

(2) Each receptacle and attachment cap or plug shall be tested for
correct attachment of the equipment grounding conductor. The equipment
grounding conductor shall be connected to its proper terminal.

(E) All required tests shall be performed:

(1) Before first use;

(2) Before equipment is returned to service following any repairs;

(3) Before equipment is used after any incident which can be reasonably
suspected to have caused damage (for example, when a cord set is run
over); and

(4) /At intervals not to exceed 3 months, except that cord sets and
receptacles which are fixed and not exposed to damage shall be tested at
intervals not exceeding 6 months./ (Emphasis added.)



Under the grounding conductor program, the only time limit for testing
receptacles that are part of the permanent wiring of the building and
not exposed to damage is "at intervals not exceeding 6 months".^(25)
<#N_25_> Given this background, it is apparent that the Secretary
believes that employers on construction sites may perform their work for
a substantial period of time under the assumption that fixed receptacle
outlets, including integrated GFCIs, not exposed to damage, are in
proper working condition. There is no basis for concluding that Star
Brite failed to exercise reasonable diligence by not testing the GFCI
components of the fixed receptacle at a period of time shorter than one
month before its use.

Star Brite's third defense---that no hazard existed even though the GFCI
was defective because the power drill was built with double
insulation---is moot in view of the conclusion reached; however, it is
briefly noted that Star Brite's own witness, safety consultant Vincent
Gallagher, acknowledged that a potential hazard existed should the
extension cord become damaged or frayed despite the fact that the drill
was double insulated, and that a GFCI would provide protection to
employees should such damage occur (Tr. 933-34). See /Otis Elevator Co.,
supra/, at 17 BNA OSHC 1168.

*FALL PROTECTION FOR SKYLIGHT OPENINGS*

The two roofing contracts with NJ Transit required Star Brite to replace
the skylights on NBC-1 and NBC-2, which was accomplished during the
period from the end of July 1994 to mid-December 1994. Although the
compliance officer never personally observed the skylight-replacement
work being performed, his interviews with two NJ Transit employees,
Robert Latinsky and Judith Lagano, led him to conclude that Star Brite
failed to provide fall protection for its employees during the one-half
to one-hour intervals between the removal of the old skylights and
installation of the new (Tr. 69).

In item 11 of the citation, the Secretary alleged that the failure to
provide fall protection for skylight openings violated the "floor
opening" standard at § 1926.500 (b)(1), which requires that the openings
be guarded by "standard railing" or "cover"; as an alternative, the
Secretary also alleged violation of the standard at § 1926.105 (a) which
reads as follows:

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.



In the complaint, the Secretary added one more alternative legal charge:
violation of the fall standard at § 1926.500 (b)(4), which applies
specifically to "skylight opening", but also calls for "standard
railing" or "cover" as a means of protection. During the hearing the
Secretary conceded that both 500 (b)(1) and 500 (b)(4) did not apply to
the conditions at issue because the use of guardrails or covers required
by both standards would have been infeasible in that the work had to be
performed where the guardrails would have been installed. Secretary's
brief at 76 n. 81.

Both Latinsky and Lagano testified that they observed Star Brite
employees working at the edge of the skylight openings installing wooden
frames without fall protection (Tr. 69-73, 101-08). The openings were
approximately 6 by 12 feet (Tr. 768). Star Brite does not claim it used
any form of fall protection during the interval between the removal of
the old skylights and the installation of the new. It argues, in effect,
that there was no feasible method of providing fall protection for the
skylight openings. Star Brite's brief at 68-69.

A prima facie violation of § 1926.105 (a) is established if the
Secretary shows that employees were subject to falls of twenty feet or
more and none of the safety devices listed in the standard were
utilized. After the Secretary establishes a prima facie case, the
employer may affirmatively defend by establishing that it is impossible
to use any of the listed safety devices, and that such devices would
make performances of the work impossible or result in a greater hazard.
/Cleveland Consolidated Inc., v. OSHRC/, 649 F. 2d 1160, 1165 (5th Cir.
1981)./Seibel Modern Manufacturing and Welding Corp/., 15 BNA OSHC 1218
(No. 88-821, 1991).

In it's answer to the Secretary's charges regarding the skylight
openings, Star Brite presented three arguments: (a)"Standard railings
were not practicable because of the work being performed"; (b)"use of
safety nets was impractical"; and (c)"installation of nets would have
exposed employees to a hazard for a longer period than they were exposed
in installing skylights".

Although Star Brite's answer did not include any mention of "safety
lines" or "safety belts", which are among the devices listed in the
cited § 1926.105 (a) standard, they became a matter of much debate
during the hearing.^(26) <#N_26_> The Secretary contends that because
Star Brite failed to plead in its answer the affirmative defense of
greater hazard concerning the use of safety belts, it must be excluded
as an issue. Secretary's brief at 81. A review of the hearing record
discloses that the greater hazard defense in the use of safety belts for
skylight openings was fully litigated by the parties without any clear
objection by the Secretary that the evidence went to an unpleaded
defense. Consequently, Star Brite's answer is amended to conform to the
evidence under Rule 15(b) of the Federal Rules of Civil Procedure.

The "impossibility defense" discussed by the fifth circuit in the
/Cleveland Consolidated/ case, /supra/, 649 F. 2d at 1165, was redefined
by the Commission as the "infeasibility defense" in /Dun-Par Engineered
Form Co/., 12 BNA OSHC 1949 (Nol 79-2553, 1986). To establish the
affirmative defense of infeasibility, the employer must show that (1)
the means of compliance prescribed by the applicable standard would have
been infeasible, 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) there would have been no feasible
alternative means of protection./V.I.P. Structures, Inc./, 16 BNA OSHC
1873, 1874 (No. 91-1167, 1994).

Of those safety devices listed in § 1926.105(a), only safety nets and
safety belts were given any serious consideration by the parties. Both
Smilios and Gallagher testified that it was infeasible to use safety
nets under the skylight openings because of the structural members,
pipes and electrical lines that were located under the openings (Tr.
771, 890).

As previously noted, the compliance officer stated that the skylight
opening violation was based upon information he obtained through
Latinsky and Lagano during the course of his inspection of the bus
complex project. The compliance officer did not provide any firsthand
knowledge concerning the feasibility of using safety nets for the
skylight openings, and he admitted that his interviews with Latinsky and
Lagano did not go into the particulars of using safety nets (Tr.
628-29), and that he could not be "sure about whether nets would work
under the ceiling in the garage where the busses travel..." (Tr.
422-23). Both Latinsky and Lagano were uncertain about the feasibility
of using the safety nets (Tr. 87, 103).

There is no basis for disbelieving the testimony of Star Brite's
witnesses regarding the infeasibility of using safety nets to protect
employees from falling through the skylight openings. Star Brite's
infeasibility defense as to this issue has been sustained.

Partly due to the Secretary's focus on "standard railings" as a
precautionary measure, in both the citation and the complaint, the use
of safety belts to prevent falling through the skylight openings was
addressed by the parties during the hearing in a rather haphazard manner
resulting in a mazed record of blurred facts. Both Smilios and Gallagher
testified that there were no anchorage points on the roof to secure the
safety belts.^(27) <#N_27_> Both witnesses stated that the air
conditioning structures on the roof, which the compliance officer
recommended as anchorage points in his testimony (Tr. 661-68, 670), were
too remote from the skylights to be feasible, that the long lines would
have been "in the way" of the roofers installing the roof, and that such
lines would have created a tripping hazard (Tr. 737-770, 788-89, 892-93).

In her brief, the secretary makes the following arguments:

And safety belts and safety lines were clearly feasible, as evidenced by
the fact that Frank Knight's employees used safety belts, tying off
daily (Tr. 132-133, 142-144) "to units or some other dunnage that was on
the roof" (Tr. 132,142), including air conditioning units and other
steel-constructed permanent fixtures of the roof (Tr. 133) and even Mr.
Smilios admitted that in some areas the line could be attached to a
structural member on the roof (Tr. 767-768, 360, 631, 646).
Specifically, on both NBC-1 and NBC-2 the employees could have tied off
to structural HVAC (heating and air conditioning) equipment which had
heavy industrial bases, with a static line (Tr. 6464, 660-661, 666-667).
The static line would have been connected both to the safety lanyard and
safety belt, and to the heavy industrial base of the structural
equipment (Tr. 659-661, 663-664, 666- 667). One example of such
structural equipment is shown in Exhibit R-1 (Tr. 669-675).



Secretary's brief at 80 n. 88.

The Secretary's perspective is burdened with a couple of flaws. The
evidence indicates that Frank Knight's employees did not perform any
work in connection with the skylights. Moreover, Knight's testimony
regarding his extensive use of safety equipment at the bus complex is
questionable because of the antagonism and work problems that developed
between Knight and Smilios during the course of the roofing operations
on NBC-1 (Tr. 790-92).

The Secretary's statement that "even Mr. Smilios admitted that in some
areas the line could be attached to a structural member on the roof" is
a gross misrepresentation of Smilios's testimony appearing at pages
767-68 of the transcript to which the Secretary cites. The heating and
air conditioning units on the roof were precisely what Smilios and
Gallagher had in mind when they both asserted that those structures were
not feasible to use as an anchorage. Except for the transcript pages
767-68, all transcript references made by the Secretary to support her
arguments involve the testimony of the compliance officer who admitted
that he did not make any evaluation or judgement as to the use of safety
belts for the skylight openings during his visits to the project (Tr.
646-47).

While the Secretary's arguments have their flaws, Star Brite's
affirmative defense regarding the safety belt issue is unconvincing. It
is important to bear in mind that the skylights were open only for about
one hour or less, the time it took to replace the old skylight covers.
The skylights were spread over a wide area of the roof, a total of 57 on
NBC-1 and 20 on NBC-2, according to the citation. Neither Smilios nor
Gallagher provided any testimony which would tend to explain or even
suggest in some concrete fashion why safety lines (or lifelines) would
not have been feasible if secured to the heating and air conditioning
structures in all situations.

The following is an example of some of the information elicited from
Gallagher on direct examination (Tr. 891-94):

Q: Okay. Now, the other thing that you mentioned was, which we've had a
lot of discussion about in this case, was, I guess, safety lines of some
kind while the workers were working.

Were you able, you said you were on the roof, and were you able to
evaluate the proximity of air conditioning unit structures on the roof
in terms of feasibility of using those as anchor points for people then
to work around skylights?

A: I looked at them. Some of them were quite far away, some were closer
than others, and they were, they were at haphazard locations.

Q: Is there any risk that workers on the roof would be exposed to if
safety lines were used that were extending, say, 20, 30, 40, 50 feet
away from the opening?

A: (No verbal response.)

Q: Would those safety lines, themselves, create any hazard?

A: They could, yes, sir.

Q: Such as?

A: Well, there could be a problem of interfering with the roofing work
that you're doing if they have to stretch across an area where work is
being done. They could create a trip hazard, trip and fall to the same
level hazard, for people who'd have to pass by that area.

You'd have a certain amount of length of your life line that you would,
you would need to gain access to the type of work that you have to do.

You're going to be carrying, I understand either you'd be lifting the
skylight, so you're going to have to have some mobility, and you could
have a question of having your life line lanyard length being a length
that if you, if you stood at the edge and fell, you would fall greater
than 6 feet depending upon the needs that you have for transporting and,
and storing the skylight that you just took off.

Q: All right. So, was it, would it have been feasible, your testimony's
been explained in the record that if you had two men on each corner of a
skylight working, taking it off and then putting it on, did you see,
based on locations of those structures and what you've just explained
about the distance and other potential hazards, do you believe it was
feasible to have all those men somehow tied off to safety lines and
doing that installation as I've just explained, two men on each side,
moving away and back to the roof and back to the skylight?

A: Well, there were, I don't know how many skylight openings. There were
quite a few, and the, and the opportunities for anchorage points at all
those would be different.

The ones that I looked at, sometimes the anchorage point would be quite
distant, and the design, it would have to be designed, it seems to me,
to design the hazards of the system out, it would have to be designed
for that particular work.

To have life lines stretched over 40, 50 feet of the building, with
varying amounts of mobility that's needed, it seems to me that that
would have to be thought out in great detail, and anchorage points
should be established.

There's a great danger in saying people should just find an anchorage
point. The selection of proper anchorage points is a subject that takes
a lot of training for people to be, to understand that, and in most
cases, it takes a structural engineer, not just any engineer, but an
engineer trained in structures to be able to determine whether an
anchorage point is a safe anchorage point or not, and it would just be
by coincidence that there would be safe anchorage points in proximity to
not create other hazards or to be effective.



This broad overview does not inform us as to why Star Brite could not
have arranged the sequence of work for installing the roof in a way that
accommodated the crew during the relatively short periods of time needed
to replace each skylight, for the purpose of avoiding or mitigating
interruption of the roofing work and tripping hazards. It should be
noted that during cross-examination, Gallagher admitted that the fall
hazard presented by the skylight openings was a greater hazard than
tripping and falling on the roof (Tr. 919-20).

Nor are we persuaded that safety lines, measuring 20 feet or more in
length, would have been infeasible because they would have impeded the
workers' mobility while they were replacing the skylights. The safety
belt would be worn by the worker while he was at or near the edge of the
opening, presumably he could disengage the safety belt from the lanyard
or safety line to allow him to move freely.

A glancing reference was made during the hearing to the regulation
prescribing a maximum free fall of 6 feet when using a lanyard:

Safety belt lanyard shall be a minimum of ½-inch nylon, or equivalent,
with a maximum length to provide for a fall of no greater than 6 feet.
The rope shall have a nominal breaking strength of 5,400 pounds.



29 C.F.R. § 1926.104(d). The argument being that because the openings
measured 6 by 12 feet, the crew replacing the skylights would not be
able to work on all four sides of the opening and maintain the maximum
6-foot fall distance because of the limited number of fixed anchorage
points available on the roof to secure their safety belts.^(28) <#N_28_>
Star Brite's brief at 69.

Employers are expected to comply with OSHA standards in every detail in
order to provide some means of reasonably continuous protection from
work hazards. Generally speaking, partial protection is inadequate
protection. However, the mandate of the OSH Act is "to assure /so far as
possible/ every working man and woman in the Nation safe and healthful
working conditions..."(Emphasis added). 29 U.S.C. § 651 (b). It is no
defense that the safety belts could not have been used 100% of the time.
It is consistent with the purpose of the Act that where, as here, the
belts could have been effectively used during a significant portion of
the skylight replacement work, compliance with the standard is required.
The failure to do so was a serious violation in view of the potential
fall from a height of some 26 feet. The Secretary recommends that a
$3,000 penalty be assessed. Inasmuch as the use of safety belts would
have been feasible only for a substantial portion of the work activity,
a penalty of $1,500 is assessed.

*PORTABLE LADDER*

Item 12, the last item listed in citation number 1, alleges that a
40-foot portable extension ladder used to gain access to the roof
extended only "one foot 5 ½ inches" above the roof landing instead of at
least 3 feet as required by the standard at § 1926.1053 (b)(1). The
ladder was secured on one side. The compliance officer used the ladder
to reach the roof during his initial visit on October 19, 1994, but he
did not make any effort to have Star Brite correct the condition until
some time after the violation was noted (Tr. 649-50). Star Brite does
not dispute the existence of the violation, but contends that the $1,500
penalty proposed by the Secretary is excessive, in view of the facts
that the violation was corrected during the October 19 inspection, and
that the compliance officer used the ladder apparently without fear of
risking serious injury. Star Brite's brief at 70.

The compliance officer explained the hazard emanating from the 18-inch
ladder deficiency as follows (Tr. 365):

A: It just doesn't--you don't have an adequate handhold. You don't want
the employee bending down and reaching down while he's trying to get on
to the side of a ladder to go down, especially at , you know, a 25- or
27-foot height.



It was the only means available to climb up and down the roof of NBC-2
and it was used by all the roofers for "quite a while" (Tr. 649-50). The
compliance officer acknowledged that the deficiency in the extension of
the ladder did not cause him to have an immediate concern about the
danger of falling from the ladder, he apparently being preoccupied with
other conditions on the roof (Tr. 649-50). The 18-inch deficiency in the
ladder's rails is not shown to have more than a low gravity, warranting
a penalty of $1,000 under the statutory criteria for assessing penalties.

*LIST OF HAZARDOUS CHEMICALS*

While Star Brite's written hazard communication program included copies
of the required material safety data sheets for each of the hazardous
chemicals used on the project (i.e., gasoline, propane and asphalt), it
failed to comply with paragraph (e)(i) of the hazard communication
standard § 1926.59 which requires "[a] list of the hazardous chemicals
known to be present using an identity that is referenced on the
appropriate material safety data sheet."

The purpose of the list is to provide an index useful as a
cross-reference to the material safety data sheets (Tr. 371). The
Secretary does not propose that a penalty be assessed for the omission
of the list of chemicals, and Star Brite has not raised a serious
defense in the matter. Citation number 3, classified as nonserious, is
affirmed..

Based upon the foregoing findings and conclusions, it is

ORDERED that items 1a and 1b of citation number 1 are affirmed and a
penalty of $2,100 is assessed. It is further

ORDERED that item 2 of citation number 1 is affirmed and a penalty of
$2,100 is assessed. It is further

ORDERED that items 3,4 and 5 of citation number 1 are affirmed and
penalties of $1,600, $1,500 and $750 are assessed respectively, in
accordance with the settlement agreement. It is further

ORDERED that items 6,7,8,9, and 10 of citation number 1 are vacated. It
is further

ORDERED that item 11 of citation number 1 is affirmed and a penalty of
$1,500 is assessed. It is further

ORDERED that item 12 of citation number 1 is affirmed and a penalty of
$1,000 is assessed. It is further

ORDERED that items 1 and 2 of citation number 2 are affirmed, and a
penalty of $25,000 is assessed for each item. It is further

ORDERED that citation number 3 is affirmed.

/s/

RICHARD DeBENEDETTO

Judge, OSHRC





Dated: February 23, 1998

Boston, MA





1. Three of the affirmed items were resolved by the parties pursuant to
a settlement agreement reached during the hearing.

2. The compliance officer recommended that the guardrails be extended 20
feet on each side of the elevator area because although he observed
employees handling materials only at or near the elevator enclosure area
of the roof edge, he noticed a wide expanse of debris and tar residue
farther along the unprotected east edge of the roof.

3. *Subpart M--Floor and Wall Openings*

*§ 1926.500 Guardrails, handrails, and covers.*

. . . .

(g) /Guarding of low-pitched roof perimeters during the performance of
built-up roofing work/-(1) /General provisions./ During the performance
of built-up roofing work on low-pitched roofs with a ground to eave
height greater than 16 feet (4.9 meters), employees engaged in such work
shall be protected from falling from all unprotected sides and edges of
the roof as follows:

(i) By the use of a motion-stopping-safety system (MSS system); or

(ii) By the use of a warning line system erected and maintained as
provided in paragraph (g)(3) of this section and supplemented for
employees working between the warning line and the roof edge by the use
of either an MSS system or, where mechanical equipment is not being used
or stored, by the use of a safety monitoring system; or

(iii) By the use of a safety monitoring system on roofs fifty feet
(15.25 meters) or less in width (see Appendix A), where mechanical
equipment is not being used or stored.

4. Appendix A to Subpart M permits roofs "which are comprised of several
separate, non-contiguous roof areas" to be considered as a series of
individual roofs under the standard.

5. Although the Secretary argues that a tar lugger is human propelled
wheeled equipment, distinct from a wheelbarrow or mopcart, and properly
characterized as mechanical equipment, it was not shown that employees
were working near this equipment while engaged in built-up roofing work
on December 13, 1994.

6. The standard at 29 C.F.R. § 1926.500(g)(1) provides that a warning
line system be "erected and maintained as provided in paragraph (g)(3)"
of the section. Paragraph (g)(3) requires that "[w]hen mechanical
equipment is not being used, the warning line shall be erected not less
than six feet (1.8 meters) from the roof edge."

7. Although OSHA acknowledged in its preamble to section 1926.500(g)
that the use of MSS systems posed feasibility problems, it did not
recognize such problems with warning line systems. /See Guarding of
Low-Pitched-Roof Perimeters During the Performance of Built-Up Roofing
Work: Final Rule/, 45 Fed. Reg. 75,618, 75,619, 75,621 (1980).

8. Star Brite also cites the unreviewed administrative law judge
decision in /Santo J. Ruisi Roofing Co., Inc.,/ 13 BNA OSHC 1175,
1986-87 CCH OSHD ¶ 27,865 (No. 86-17, 1987) (ALJ). Unreviewed
administrative law judge decisions have no precedential value. /Leone
Constr. Co./, 3 BNA OSHC 1979, 1975-76 CCH OSHD ¶ 20,387 (No. 490, 1976).

9. /Cf. Reeves v. Sanderson Plumbing Prod., Inc./, 530 U.S. 133 (2000)
("factfinder is entitled to consider a party's dishonesty about a
material fact as 'affirmative evidence of guilt'").

10. /See Williams Enterprises, Inc.,/ 13 BNA OSHC at 1257, 1986-87 CCH
OSHD at p. 36,589 (absent familiarity with standard's terms, willfulness
may be found based on "evidence of such reckless disregard for employee
safety or the requirements of the law generally that one can infer that
if the employer had known of the standard or provision, the employer
would not have cared that the conduct or conditions violated it").

11. *Subpart M--Floor and Wall Openings*

**§ 1926.500 Guardrails, handrails, and covers.**

*

. . . .

(g) /Guarding of low-pitched roof perimeters during the performance of
built-up roofing work/-

. . . .

(5) /Roof edge materials handling areas and materials storage/.
Employees working in a roof edge materials handling or materials storage
area located on a low-pitched roof with a ground to eave height greater
than 16 feet (4.9 meters) shall be protected from falling by the use of
an MSS system along all unprotected roof sides and edges of the area.

(i) When guardrails are used at hoisting areas, a minimum of four feet
of guardrail shall be erected on each side of the access point through
which materials are hoisted.

(ii) A chain or gate shall be placed across the opening between the
guardrail sections when hoisting operations are not taking place.

(iii) When guardrails are used at bitumen pipe outlets, a minimum of
four feet of guardrail shall be erected on each side of the pipe.

(iv) When safety belt systems are used, they shall not be attached to
the hoist.

(v) When safety belt systems are used they shall be rigged to allow the
movement of employees only as far as the roof edge.

(vi) Materials may not be stored within six feet of the roof edge unless
guardrails are erected at the roof edge.

(vii) Materials which are piled, grouped, or stacked shall be stable and
self-supporting.

12. Smilios admitted that four to six Spanish-speaking employees had
difficulty understanding English, and Star Brite presented no evidence
to show that work rules had ever been translated for these employees.

13. We reject Star Brite's contention that it should have been assessed
a single penalty for its violations of 29 C.F.R. §§ 1926.500(g)(1) and
(5). Under Commission precedent, where the cited standards require
different forms of abatement and the use of one form does not
necessarily abate both violations, separate citation items for each
violation are not duplicative, and the Commission has assessed separate
penalties for each violation. /R & R Builders, Inc/., 15 BNA OSHC 1383,
1390-92, 1991-93 CCH OSHD ¶ 29,531, pp. 39,865-66 (No. 88-282, 1991).
Here, section 1926.500(g)(1) permitted the use of a warning line system
supplemented by a safety monitoring system to abate the cited
conditions. However, such a measure would not have satisfied the
requirements of section 1926.500(g)(5), which requires an MSS system at
a roof edge materials handling and storage area.

14. § *1926.350 Gas welding and cutting.*

(a) /Transporting, moving, and storing compressed gas cylinders./

(1) Valve protection caps shall be in place and secured.

. . . .

(9) Compressed gas cylinders shall be secured in an upright position at
all times except, if necessary, for short periods of time while
cylinders are actually being hoisted or carried.

(10) Oxygen cylinders in storage shall be separated from fuel-gas
cylinders or combustible materials (especially oil or grease), a minimum
distance of 20 feet (6.1 ) or by a noncombustible barrier at least 5
feet (1.5 m) high having a fire-resistance rating of at least one-half
hour.

15. The judge noted that an alleged tripping hazard should have been
cited under a housekeeping standard.

16. Section 1926.350(j) incorporates by reference the technical portions
of the American National Standards Institute, Z-49.1-1967, /Safety in
Welding and Cutting/, which specifically requires that empty cylinders
be marked as such.

17. Star Brite's argument for /de minimis/ classifications of the gas
cylinder items is without merit. Under Commission precedent, even
residual quantities of flammable compressed gases pose dangers of
explosion and projectile hazards. /Huber/, 4 BNA OSHC at 1409, 1976-77
CCH OSHD at p. 25,012. Although the compliance officer opined that the
likelihood of gases igniting was remote, he admitted that he was not
trained or qualified to determine the probability of an explosion when
residual amounts of gases remain in cylinders.

18. .The violations are listed in citation number 1 as items 1a, 1b, and
2 through 12. During the hearing the parties agreed to settle three of
the items; the agreement provided that items 3, 4 and 5 were to be
affirmed and the proposed penalties were to be reducedto $1600, $1500
and $750, respectively (Tr. 184).

19. . "MSS Systems" include guardrails, safety nets and safety belts. 29
C.F.R. § 1926. 502 (p) (5).

"Warning lines" must be no less than 34 inches and no more than 39
inches from the roof surface. § 1926.500 (3) (ii) (b).

20. . "Mechanical equipment" means "all motor or human propelled wheeled
equipment except for wheelbarrows and mopcarts" 29 C.F.R. § 1926.502 (p)
(4).

21. . A "lugger" is a metal barrel or tank mounted on a frame with
wheels. This mobile tank device, which measures some 4 ½ feet long and 5
feet high, was used to receive and contain hot tar which was pumped
through a pipe from ground level where asphalt was boiled in a kettle to
form the tar roof cover (Tr. 178, 246-47, 437-38, 708-10, 811-12; Exhs.
C-25, C-26).

22. The § 1926.500 (g) (5) (i) standard reads:

(i) When guardrails are used at hoisting areas, a minimum of four feet
of guardrail shall be erected on each side of the access point through
which materials are hoisted.

23. In assessing penalties under the Act, the Commission is not bound to
follow the Secretary's penalty-computation formula. Star Brite's
contention that the Secretary failed to give appropriate credits for
history and size is invalid. Star Brite's brief at 60-61.

24. Paragraph (c) of § 1926.250 reads:

/Housekeeping/. Storage areas shall be kept free from accumulation of
materials that constitute hazards from tripping, fire, explosion, or
pest harborage. Vegetation control will be exercised when necessary.

25. The secretary did not allege nor does the evidence suggest that the
fixed receptacle outlet in question was exposed to damage.

26. Section 1926.107 provides the following definitions relevant to a
safety belt and safety line:

(b) "Lanyard" means a rope, suitable for supporting one person. One end
is fastened to a safety belt or harness and the other end is secured to
a substantial object or a safety line.



(c) "Lifeline" means a rope, suitable for supporting one person, to
which a lanyard or safety belt (or harness) is attached.

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(f) "Safety belt" means a device, usually worn around the waist which,
by reason of its attachment to a lanyard and lifeline or a structure,
will prevent a worker from falling.

27. Section 1926.104 (b) provides:

(b) Lifelines shall be secured above the point of operation to an
anchorage or structural member capable of supporting a minimum dead
weight of 5,400 pounds.

28. The maximum-distance argument may or may not be overcome simply by
the use of an attached device--if such a device existed--that allows the
length of the lanyard to be adjusted to the appropriate length. This is
a technical matter requiring special knowledge which is not imparted by
the evidentiary record. If such a device was available, it was the
Secretary's burden to produce evidence of this fact as part of her
evidence in rebuttal.

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