SECRETARY OF LABOR, 	

Complainant,

	

v.

	OSHRC Docket No. 95-0489
CBI SERVICES, INC. , 	

Respondent.

	



*/DECISION/*

Before: ROGERS, Chairman, and EISENBREY, Commissioner.

BY THE COMMISSION:

At issue before the Commission is a citation alleging a willful
violation of the Occupational Safety and Health Administration ("OSHA")
standard at 29 C.F.R. § 1926.550(b)(2), based on the employer's failure
to meet the requirements of an American National Standards Institute
("ANSI") safety code provision that is incorporated by reference into
the OSHA standard. Administrative Law Judge Richard DeBenedetto affirmed
the citation and assessed the proposed penalty of $55,000. On review,
CBI Services, Inc. ("CBI") does not challenge the judge's conclusion
that the Secretary established her case by proving: that CBI violated
the cited standard and incorporated provision at its workplace in
Quincy, Massachusetts, as alleged in the citation;^(1) <#N_1_> that the
cited standard and provision applied to the cited conditions; that the
employee identified in the citation had been exposed to those violative
conditions; and that CBI had actual knowledge of the violation, through
two of its highest-level on-site supervisors (the project superintendent
and a foreman). CBI does argue, however, that the judge erred in
rejecting its two affirmative defenses -- invalidity of the cited
standard and unpreventable employee misconduct. It also argues that the
judge erred in characterizing the violation as willful. For the reasons
that follow, we affirm the judge.

*I. Validity of the Cited Standard*

*A. Background*

The standard at issue provides, in pertinent part:

*§ 1926.550 Cranes and derricks.*

* * *

(b) /Crawler, locomotive, and truck cranes/.

* * *

(2) All crawler, truck, or locomotive cranes in use shall meet the
applicable requirements[^(2) <#N_2_>] for design, inspection,
construction, testing, maintenance and operation as prescribed in the
ANSI B30.5 - 1968, Safety Code for Crawler, Locomotive and Truck Cranes.
. . .



The standard was originally promulgated by the U.S. Department of
Labor's Bureau of Labor Standards ("BLS") on April 17, 1971, as a
standard under the Construction Safety Act, 40 U.S.C. § 333.^(3) <#N_3_>
The language of the standard, which at that time was designated as 29
C.F.R. § 1518.550(b)(2), was identical to the first sentence of the
current section 1926.550(b)(2), as quoted above.

On May 29, 1971, the Secretary adopted and extended "[t]he standards
prescribed in [29 C.F.R.] Part 1518 . . . and in effect on April 28,
1971," including the standard at issue in this case, "as occupational
safety and health standards under section 6(a) of the [Occupational
Safety and Health] Act [of 1970]," 29 U.S.C. §§ 651-678 ("the OSH
Act").^(4) <#N_4_> The Part 1518 standards were made applicable,
"according to the provisions thereof, to every employment and place of
employment of every employee engaged in construction work," regardless
of whether the work is or is not performed under a federal construction
contract. 29 C.F.R. § 1910.12(a), as promulgated at 36 Fed. Reg. 10466,
10469 (1971).

CBI argues that the cited OSHA standard is invalid because the Secretary
failed to publish in the Federal Register (1) the incorporated ANSI
provision and (2) a "significant risk" finding under /Industrial Union
Dept., AFL-CIO v. American Petroleum Inst./, 448 U.S. 607 (1980) ("the
/Benzene Case/"). The Secretary raises the counter-argument that the
Commission lacks the authority to rule on either of CBI's standard
validity challenges. We first address the issue of the Commission's
authority.

**

*B. The Commission's Authority to Decide the Issues*

In support of her contention that the Commission lacks the authority to
rule on CBI's standard validity challenges, the Secretary makes two
alternative arguments, both of which we reject. First, the Secretary
argues that CBI is "foreclosed" under Commission precedent from
challenging the procedural validity of section 1926.550(b)(2)'s
promulgation in this enforcement proceeding. The precedent she cites is
/General Motors Corp., GM Parts Div./, 9 BNA OSHC 1331, 1981 CCH OSHD ¶
25,202 (No. 79-4478, 1981) ("/GMC/"), and two cases following the
holding of that decision, /American Can Co./, 10 BNA OSHC 1305, 1309-10,
1982 CCH OSHD ¶ 25,899, pp. 32,412-13 (No. 76-5162, 1982), and /Daniel
Constr. Co./, 9 BNA OSHC 1854, 1856, 1981 CCH OSHD ¶ 25,385, pp.
31,622-23 (No. 12525, 1981), /aff'd/, 705 F.2d 382 (10th Cir. 1983). In
/GMC/, the Commission held that challenges to OSH Act standards based on
procedural deficiencies in the adoption of their ancestor standards
under other statutes may not be made in enforcement proceedings before
the Commission. Here, however, both of CBI's validity challenges allege
deficiencies in the adoption of section 1926.550(b)(2) as an OSH Act
standard under section 6(a) of the Act. CBI has made no claim at any
point in this proceeding that section 1926.550(b)(2)'s ancestor standard
was invalidly promulgated as a standard under the Construction Safety
Act. The Commission precedent cited by the Secretary is therefore
inapposite.

Alternatively, the Secretary "restates her position . . . that the
pre-enforcement challenge provision in § 6(f) is the exclusive remedy
for questioning the validity of the Secretary's standards."^(5) <#N_5_>
The Commission has consistently rejected this argument, beginning with
/Rockwell Intl. Corp./, 9 BNA OSHC 1092, 1095-96, 1980 CCH OSHD ¶
24,979, p. 30,844 (No. 12470, 1980). The Commission and at least two
appellate courts have also expressly considered and declined to follow
the position taken by the U.S. Court of Appeals for the Eighth Circuit
in /National Indus. Constructors, Inc. v. OSHRC/, 583 F.2d 1048 (8th
Cir. 1978) ("/NIC/"), /i.e./, that only "substantive" validity
challenges and not "procedural" validity challenges may be raised and
considered in administrative (enforcement) proceedings before the
Commission, as well as in section 6(f) pre-enforcement proceedings
before a court.^(6) <#N_6_> /See/, /e.g./, /Deering Milliken, Inc.,
Unity Plant v. OSHRC/, 630 F.2d 1094, 1098-99 (5th Cir. 1980); /Marshall
v. Union Oil Co. of California/, 616 F.2d 1113, 1116-18 (9th Cir. 1980);
/Rockwell/, 9 BNA OSHC at 1096-97, 1980 CCH OSHD at pp. 30,844-45. In
re-asserting her position in the instant case, the Secretary does not
raise any arguments not previously considered by the Commission that
would suggest a need for modifying our long-standing position. We
therefore adhere to Commission precedent and hold that both of CBI's
challenges to the validity of section 1926.550(b)(2) are properly before
us in this enforcement proceeding.^(7) <#N_7_>

*C. The Incorporation by Reference of ANSI B30.5 - 1968*

It is undisputed that neither at the time she initially promulgated
section 1518.550(b)(2) as a Construction Safety Act standard nor at any
time since has the Secretary published the incorporated safety code,
ANSI B30.5 - 1968, in the Federal Register. CBI challenges the validity
of this incorporation by reference based on its interpretation of the
rulemaking provisions of three federal statutes: the OSH Act; the
Administrative Procedure Act ("APA"), which is referred to in section
6(a) of the OSH Act as "chapter 5 of title 5, United States Code"; and
the Federal Register Act, 44 U.S.C. §§ 1501-1511. As indicated /supra
/at note 4, section 6(a) of the OSH Act instructed the Secretary that
the "established Federal standards" and "national consensus standards"
that she adopted and extended as her initial OSHA standards package,
shortly after the effective date of the OSH Act (April 28, 1971), were
to be promulgated "[w]ithout regard to chapter 5 of title 5, United
States Code." CBI argues that this phrase precludes the applicability of
any of the provisions of the APA to section 6(a) rulemaking, including
the provisions of 5 U.S.C. § 552(a)(1)(D), which permits federal
agencies under specified circumstances to promulgate standards and
regulations through incorporation by reference.^(8) <#N_8_>

CBI argues that, since the APA did not apply to the Secretary's section
6(a) rulemaking, that rulemaking was governed solely by the Federal
Register Act, which by its terms required publication of ANSI B30.5 -
1968 in the Federal Register. That Act's publication requirement,
according to CBI, contains no exception, either in the statute itself or
in its implementing regulations, that would have permitted the Secretary
to incorporate the ANSI Safety Code into the cited OSHA standard by
reference.^(9) <#N_9_> Accordingly, CBI argues that the Secretary was
required to publish ANSI B30.5 -1968 in the Federal Register but failed
to do so. Nor has the Secretary, in CBI's view, established in this
proceeding that CBI had actual knowledge of the provisions of section
5-3.2.3(e) of the ANSI Safety Code. CBI contends that the Secretary is
therefore barred by the express terms of the Federal Register Act from
enforcing against it the prohibition against riding the crane's load.
/See /44 U.S.C. § 1507/./

We reject CBI's arguments because there is a critical flaw in CBI's
reasoning. ANSI B30.5 - 1968 was/not/ incorporated into the cited
standard, section 1926.550(b)(2), under the OSH Act on May 29, 1971.
Rather it was incorporated by reference under the APA at an earlier time
-- when the cited standard's ancestor standard, section 1518.550(b)(2),
was initially promulgated on April 17, 1971, under the Construction
Safety Act. When the Secretary subsequently adopted and extended the
"established Federal standard" at section 1518.550(b)(2) as an OSH Act
standard, she did so by re-publishing the text of that pre-existing
standard in the Federal Register verbatim.^(10) <#N_10_>

CBI has made no claim before us that the incorporation by reference that
occurred at the time section 1518.550(b)(2) was initially promulgated
rendered that Construction Safety Act standard invalid. Nor could such a
claim succeed. In sharp contrast to the OSH Act provisions at section
6(a), as quoted /supra/ note 4, the Secretary was expressly required to
follow APA notice-and-comment rulemaking procedures when she promulgated
standards under the Construction Safety Act. /See /40 U.S.C. § 333(a)
(referring to 5 U.S.C. § 553). The Secretary, therefore, properly relied
on the APA incorporation-by-reference provisions at 5 U.S.C. §
552(a)(1)(D). /See supra /note 8.

Under 5 U.S.C. § 552(a)(1)(D), published material that has been
incorporated by reference into a federal agency standard or regulation
is "deemed published in the Federal Register" if and when the
incorporated matter has been made "reasonably available to the class of
persons affected thereby" and its incorporation by reference has been
"approv[ed by] the Director of the Federal Register." On review, the
Secretary asserts that, when she promulgated 29 C.F.R. § 1518.550(b)(2)
under the Construction Safety Act, she "followed" all pertinent "APA and
Federal Register Act publication requirements," including those just
mentioned. Strong support for this claim is found in the Federal
Register itself and in the Code of Federal Regulations. Thus, at the
time she initially promulgated section 1518.550(b)(2), the Secretary
also promulgated 29 C.F.R. § 1518.31, which met the APA requirement to
inform "[affected] persons" of the "reasonabl[e] availab[ility]" of the
incorporated materials.^(11) <#N_11_> Also, a table captioned "Material
Approved for Incorporation by Reference" that is located at the end of
29 C.F.R. Part 1926 states that "[t]he Director of the Federal Register
has approved under 5 U.S.C. § 552(a) and 1 CFR Part 51 the incorporation
by reference of . . . [the publications listed in the table]." The
incorporation of ANSI B30.5 - 1968 Safety Code for Crawler, Locomotive
and Truck Cranes into 29 C.F.R. § 1926.550 is listed in that table.
Indeed, each annual Code of Federal Regulations publication since the
table first appeared in 1980 has included ANSI B30.5 - 1968's
incorporation into § 1926.550 in the list of approved incorporations by
reference.

In any event, Commission precedent clearly holds that, because
"[m]aterials incorporated by reference are presumed to be reasonably
available and to be incorporated with the approval of the Director of
the Federal Register in accordance with the limitations on the use of
incorporated by reference materials found at 5 U.S.C. § 552(a)(1),"
/see/ 44 U.S.C. § 1507, it is the employer who "bears the burden of
rebutting at least one of these presumptions to prove the invalidity of
[a standard containing incorporated materials]." /Charles A. Gaetano
Constr. Corp./, 6 BNA OSHC 1463, 1465-66, 1978 CCH OSHD ¶ 22,630, p.
27,304 (No. 14886, 1978). Yet, here CBI has not claimed that there was
any procedural invalidity in the promulgation of 29 C.F.R. §
1518.550(b)(2) as a safety and health standard under the Construction
Safety Act.

Nor has CBI provided any support for its assertion that the adoption and
extension of 29 C.F.R. § 1518.550(b)(2) as an occupational safety and
health standard under section 6(a) of the OSH Act somehow made it
"incumbent upon the Secretary to publish the text of ANSI B30.5 - 1968"
in the Federal Register, even though that text had already been validly
incorporated into the established Federal standard she was adopting and
extending. We agree with the Secretary that "[i]t was not necessary for
[her] to publish the ANSI standard [at that time] because 29 C.F.R. §
1518.550(b)(2) was already a lawfully promulgated and published standard
that had conformed to APA and Federal Register Act requirements at its
inception." We therefore hold that the Secretary's failure to publish
ANSI B30.5 - 1968 in the Federal Register did not render the cited
standard, 29 C.F.R. § 1926.550(b)(2), either invalid or unenforceable
against CBI.

*D. The Absence of a "Significant Risk" Finding*

CBI's second challenge to the validity of the cited standard and its
incorporated ANSI Safety Code provision is based on the undisputed fact
that the Secretary did not, at the time of the standard's promulgation
under section 6(a) of the OSH Act, make and publish in the Federal
Register a "significant risk" determination within the meaning of the
U.S. Supreme Court's 1980 decision in the /Benzene Case/. In that case,
the Court upheld a Fifth Circuit decision invalidating OSHA's benzene
standard, which had been promulgated under section 6(b)(5) of the OSH
Act, 29 U.S.C. § 655(b)(5),^(12) <#N_12_> and subsequently challenged in
a section 6(f) pre-enforcement judicial review proceeding. /See supra
/note 5. A plurality of the Court's members concluded that the benzene
standard was invalid because, "before he can promulgate /any /permanent
health or safety standard, the Secretary is required to make a threshold
finding that a place of employment is unsafe -- in the sense that
significant risks are present and can be eliminated or lessened by a
change in practices." 448 U.S. at 642 (emphasis in the original). They
found that the Secretary had failed to make a "significant risk"
determination in the challenged rulemaking proceedings.

In its arguments before us, CBI correctly points out that the /Benzene
Case/'s plurality based their holding on the statutory definition of the
term "occupational safety and health standard"^(13) <#N_13_> and that
that term is used in both section 6(a) and section 6(b) of the OSH Act.
CBI accordingly contends that "[t]here is no reason to believe that the
Court's holding is not applicable to the promulgation of standards
pursuant to section 6(a) of the OSH Act." We disagree.

At the outset, we take note of the distinct lack of consensus among the
federal appellate courts as to the meaning of the /Benzene Case
/decision and its impact beyond the context of section 6(f) challenges
to section 6(b)(5) standards, /i.e./, the context in which that
particular case was decided. Pointing to such matters as "the lack of a
majority opinion" and "the complex overlapping among the five separate
opinions" in the /Benzene Case/ decision,^(14) <#N_14_> as well as the
Court's focus on whether "Congress might have unconstitutionally
delegated legislative power to the Secretary of Labor by granting the
Secretary sweeping authority to set permanent health standards /under
section 6(b)(5),/"^(15) <#N_15_> at least three appellate courts have
directly or indirectly cautioned against placing undue reliance on the
"broad dicta"^(16) <#N_16_> of the /Benzene Case /plurality
opinion.^(17) <#N_17_> /Compare Frank Diehl Farms/, 9 BNA OSHC 1432,
1433, 1981 CCH OSHD ¶ 25,245 (No. 80-0917, 1981) (ALJ).^(18) <#N_18_>

To the extent the /Benzene Case /decision can be construed as even
addressing 6(a) rulemaking, the Court's views are properly characterized
as dicta since no issue relating to 6(a) rulemaking was actually before
the Court. We respectfully decline to follow that dicta. As the
administrative law judge recognized twenty years ago in /Frank Diehl
Farms/, /see supra /note 18, there are significant differences between
the procedures established by Congress for adopting and extending
pre-existing "national consensus standards" and "established Federal
standards" under section 6(a) of the OSH Act and the procedures
established for developing and promulgating 6(b)(5) standards and other
new, revised or substitute standards under section 6(b) of the OSH Act.
Those procedural differences persuade us that, contrary to CBI's
arguments, Congress could /not/ have intended to impose on the Secretary
an obligation to make and publish in the Federal Register "significant
risk" determinations with respect to each and all of the numerous
pre-existing standards that the Secretary included in her initial
section 6(a) OSHA standards package.

The conference report on the legislation that became the OSH Act noted
that both the Senate and House versions of the bill had "required the
earliest practical promulgation of national consensus and established
Federal standards and permitted use of an informal, shortened
rule-making procedure" for the promulgation of these "Interim
Standards." In conference, the House had "receded" to the Senate "as to
the time," agreeing to allow the Secretary only two years rather than
three to exercise her authority under section 6(a). Conference Rep. No.
91-1765 at 2-3,//1970 U.S. Code Cong. & Admin. News at 5229-30. The
Senate committee report on the bill initially passed by the Senate
similarly stated that the "purpose" of the section 6(a) rulemaking
"procedure" was "to establish as rapidly as possible national
occupational safety and health standards with which industry is
familiar" and to "immediately provid[e] a nationwide minimum level of
health and safety." S. Rep. No. 91-1282, 91st Cong., 2d Sess., 6 (1970),
/reprinted in /1970 U.S. Code Cong. & Admin. News 5177, 5182.

While mandating the adoption and extension of these "national consensus"
and "established Federal" standards, Congress fully acknowledged that
they "may not be as effective or as up-to-date as is desirable."^(19)
<#N_19_> /Id./ Nevertheless, it clearly pointed the Secretary (and any
interested or adversely affected parties) to the institution of formal
rulemaking proceedings under section 6(b) as the appropriate procedure
for "improv[ing]" or "replac[ing]" such ineffective or outdated 6(a)
standards. /See /S. Rep. No. 91-1282 at 6-7, 1970 U.S. Code Cong. &
Admin. News at 5182-83 (concluding discussions of 6(a) and 6(b)
rulemaking procedures with observation that "[s]ection 6(b) sets forth
the procedures by which the promulgation of new standards, and /the
revision and revocation of adopted standards/, are to be accomplished"
(emphasis added)). Congress further justified the expedited rulemaking
procedures under section 6(a) on the grounds that the national consensus
standards had already "been adopted under procedures which [had] given
diverse views an opportunity to be considered and which indicate[d] that
interested and affected persons [had] reached substantial agreement on
[their] adoption," while the established Federal standards had "already
been subjected to the procedural scrutiny mandated by the law under
which they were issued" and "in large part" had "represent[ed] the
incorporation of voluntary industrial standards." /Id./

//Based on this legislative history, we conclude that Congress /did not
intend/ for the Secretary to take the time, conduct the level of
exhaustive review, and develop the extensive evidentiary record that
would have been necessary to make and support meaningful "significant
risk" determinations with respect to each of the standards promulgated
under section 6(a). In particular, we reject CBI's assertion that the
Secretary was required to make and publish in the Federal Register a
"significant risk" determination with respect to the "established
Federal standards" adopted under section 6(a), such as the standard at
issue in this case.

Furthermore, the fact that 29 C.F.R. § 1926.550(b)(2) was originally
promulgated by the Secretary under the Construction Safety Act also
indicates that no "significant risk" determination was needed. This
ancestor standard was issued pursuant to a Congressional mandate that
the Secretary adopt occupational safety and health standards that would
protect the statutorily-covered employees from exposure to "work in
surroundings or under working conditions which are unsanitary,
hazardous, or dangerous to [their] health and safety." /See supra /note
3. In section 4(b)(2) of the OSH Act, 29 U.S.C. § 653(b)(2), Congress
itself declared that the standards promulgated under the Construction
Safety Act, /i.e./, "Public Law 91-54, Act of August 9, 1969 (40 U.S.C.
333)," prior to the effective date of the OSH Act, as well as other
designated "established Federal standards," were "/deemed to be/
occupational safety and health standards issued under this Act. . . ."
(Emphasis added). Given the statutory criteria set forth in the two
statutes, we have little doubt that any safety or health standard
meeting the Congressional mandate under the Construction Safety Act
would also fall within the definition of "occupational safety and health
standard" under the OSH Act. /Compare supra /notes 3 & 13. Since the two
statutes were both enacted by the same Congress (the 91st) within a
period of less than two years, it seems highly probable that Congress
premised its actions on its belief that the occupational safety and
health standards adopted by the Secretary under the Construction Safety
Act (following the passage of the OSH Act but prior to its effective
date) would meet the statutory definition under section 3(8) of the OSH Act.

We therefore hold that the fact that the Secretary did not, at the time
she promulgated 29 C.F.R. § 1926.550(b)(2) under section 6(a) of the OSH
Act, make and publish in the Federal Register threshold "significant
risk" findings within the meaning of the /Benzene Case /decision did not
render either the cited standard or its incorporated ANSI safety code
provision invalid and unenforceable.^(20) <#N_20_>

*II. The Alleged Violation*

As noted above, CBI does not challenge the merits of the cited
violation. Some background on the alleged violation is helpful, however,
in considering CBI's unpreventable employee misconduct defense and the
disputed willful characterization.

*A. Background*

At the time of the alleged violation, CBI employees in Quincy,
Massachusetts, were engaged in the construction of four large,
steel-plate "egg-shaped digester tanks" that were to be installed at a
sewage treatment plant in Deer Island, Massachusetts. The allegation
relates to the first of the tank bottoms completed by CBI, /i.e./, "the
bottom half of the Number 1 Digester" or "Bottom 1." A month or two
before the cited incident, CBI discovered that the upper edge of the
shell on Bottom 1 did not have a uniform diameter of 84 feet, as
planned, but instead was significantly "out of round." It was therefore
necessary to use a device called a "spider hub" to "get this top edge
round so that when . . . [the tank bottom arrived at] Deer Island, the
top half then could be placed on top of it, and it would fit evenly."

Upon learning of this problem, project superintendent Perry Brosius, the
highest-ranking CBI management employee at the Quincy worksite, called
his supervisor, project manager Art Atherton, at Atherton's office in
New Castle, Delaware. He informed Atherton that Bottom 1 was 11 inches
out of round and requested the materials needed to assemble four spider
hubs.^(21) <#N_21_> Brosius testified, however, without contradiction,
that he and Atherton did not discuss (either then or later) the problem
of how the spider hub was to be assembled.^(22) <#N_22_>

The spider hub assembled over the top of Bottom 1 consisted of a central
steel ring or "hub," which was 6 feet in diameter with a 3-foot-wide
center opening, and 27 solid steel rods, each of which was 1 inch in
diameter and 38 feet long. The rods extended between the hub and the
upper edge of the tank bottom shell, just as the spokes of a bicycle
wheel extend between an inner hub and an outer wheel. Normally, when
CBI's operations required use of a spider hub, employees were able to
assemble the device on the ground and then move it into position over
the vessel that was to be re-shaped. In this instance, however, the size
of the tank bottom and the way in which it was constructed precluded
assembly of the device in the customary manner.

Assembling the device at the Quincy worksite required two employees to
work in tandem, one at the hub and the other at the upper edge of the
shell. One rod at a time would be installed, with the two employees
first guiding the crane-suspended rod to the proper location. The
employee at the hub would place his end of the rod, which had
approximately one foot of threading on it, through one of the many holes
encircling the hub and screw a steel nut onto it. The employee at the
shell would then slip "a yoke like a turn buckle" at his end of the rod
over a "lug welded on the shell" and secure that end of the rod to the
shell by putting a pin bolt through it. Once all of the rods were in
place, all of the nuts at the hub end would be hand-tightened. Finally,
a pneumatic wrench would be used to selectively tighten the rods so that
the wide areas of the shell would be drawn in while the narrow areas
expanded outward until "eventually . . . the [upper edge] bec[a]me . . .
a nice round circle."

Since CBI already had scaffolding in place inside Bottom 1 and just
below the edge of the shell rim, project superintendent Brosius knew
that there was already a safe working surface from which the employee at
the shell end of the spider web rods could work. He also concluded that
a 150-ton Lima crawler crane could be used to position the hub and hold
it in place in midair (at the center of Bottom 1 but at the same
elevation as the shell rim, approximately 50 feet above ground). A
30-ton hydraulic cherry picker could be used to lift the rods into
position one by one for incorporation into the spider hub.

Brosius accordingly identified the critical problem in assembling the
spider hub as being how to get an employee safely into position where he
could attach the 27 threaded rods to the suspended hub. Brosius
testified that he considered three possible solutions to this problem,
two of which -- use of a "man basket" or "crane-suspended work
platform," as it is referred to in CBI's safety rules, and use of a
"jacob's ladder" or "cable ladder" -- he rejected as infeasible and/or
too hazardous. The third possibility considered by Brosius was the plan
he selected. Under this plan, a board would be wired onto the hub to
serve as a working platform. It would be tested at ground level to
ensure that it was stable and secure. A "flag man" stationed at the
upper-level interior scaffolding would be used to give hand signals to
the Lima crane operator to lift the hub into position. The load and the
boom would then be "dogged off" so that they could remain at this
constant elevation, with further movement restricted to the horizonal
plane. The hub and its attached working surface would then be moved
horizontally to the interior scaffolding, where the employee who was to
work from the hub during the assembly process would be waiting. After
picking up the employee, the crane operator would rotate the load back
to the mid-point position, and the assembly operation would begin. The
employee would remain seated on the working platform wearing a tied-off
safety belt while the crane load was in motion.

Brosius acknowledged knowing that his plan would violate a CBI safety
rule that prohibited employees from riding a crane load unless they used
a crane-suspended work platform. He also acknowledged that he had
violated a second CBI work rule by making the decision on his own
(without notifying other CBI officials) to conduct the operation in
violation of CBI's "no riding" rule, rather than going through the
company's formal procedure for granting field operations personnel an
"in-house variance" from its safety rules. Brosius denied knowing,
however, that his plan violated any OSHA standard.

Brosius testified that he had proceeded under his plan because he was
convinced that the procedure he had devised was the only//safe way in
which the spider hub could be assembled. He denied knowing of the
alternative plan for assembling the spider hub that had been developed
by his supervisor, Atherton, and described in a memo faxed by Atherton
to project engineer Kevin Hubbard.^(23) <#N_23_> Under that plan, which
involved erecting a central column to hold the hub in place until it
could be secured in its position by the installed rods, there would have
been no violation of the "no riding" rule.

On the day of the operation, Brosius met with three of the employees who
would be involved in carrying out his plan: Harold ("Red") Nichols, who
was to ride the hub/board from the upper-level scaffolding to its
predetermined position and to work from that position in assembling the
spider hub; Harold ("Hal") Smith, who was to operate the Lima crawler
crane; and foreman Kenny Coleman, who was to act as the crane operator's
flag man and direct the entire operation. Brosius and Coleman both
testified that Brosius described his plan to the assembled employees for
the first time and issued his implementing instructions at that meeting.
Like Brosius, Coleman admitted knowing that the plan violated the CBI
work rule but denied knowing that it also violated an OSHA standard. He
indicated that he had agreed with the plan because he had independently
considered the problem of how to safely assemble the spider hub over
Bottom 1 and had "pretty much arrived at the same plan that Mr. Brosius
had derived." He also claimed that he had "assumed," based on Brosius'
reputation for safety-consciousness, that Brosius had gone through CBI's
formal "system" for obtaining approval for "deviat[ions] from the
[company's safety] rules."

Shortly after the meeting between Brosius and his subordinates, the
spider hub was assembled as planned. Brosius testified that he observed
the startup of the operation and then left the area "to look at some
other things on the project," while Coleman continued to direct the
operation. As Nichols and the crane load on which he was riding moved
across the open top of the shell from the scaffolding to the
pre-determined mid-point position where the assembly operation would
take place, two welders working separately inside of Bottom 1 observed
the situation. Each became upset that the operation was being conducted
in violation of a firmly-established safety rule. Welder Dominic
("Nick") Giannone testified that he responded to what he had seen by
going to Coleman and demanding that the hub be brought back down and the
employee taken off of the load. According to Giannone, even though he
told Coleman that "hav[ing] a man riding the load" was "against OSHA
regulations," Coleman "just brushed [him] off." At roughly the same
time, welder Mark Perras went to his union job steward and insisted that
the steward take action to halt the operation. In response, the steward
went up to the upper-level scaffolding to speak to Coleman. According to
Perras, when the steward returned, he informed Perras "that Kenny did
acknowledge that . . . there was a problem with the situation but at
this point it was too late because they were already attaching rods to
the hub."

Sometime later, Giannone left the work area to find job site safety
supervisor Roger Hale, who was in his office, and to inform Hale of the
safety rule violation. In response, Hale and others, including Brosius,
went to investigate the hub assembly procedure. When those officials
also failed to halt the operation, Giannone, according to his own
testimony, "left the job to go to OSHA to report the incident." OSHA's
subsequent investigation of that incident led to the citation now before
us on review.

*B. Unpreventable Employee Misconduct Defense*

CBI does not deny that the incident described above violated the cited
OSHA standard and its incorporated ANSI provision. However, it argues
before us, as it argued before the judge, that the citation at issue
should be vacated because the violation resulted from the unpreventable
misconduct of project superintendent Brosius and foreman Coleman. In
response, Judge DeBenedetto pointed to evidence that indicated to him
that employees "compris[ing] the entire range of CBI's construction site
hierarchy" had been "directly engaged in the misconduct . . . , to say
nothing of safety supervisor Hale actually observing the violation in
progress and allowing it to continue." Based on that evidence, he found
that "the sheer pervasiveness and the premeditative nature of the
violation [bore] all the characteristics of institutional misconduct"
and showed "all the symptoms diagnostic of a systemic disorder." He
therefore concluded that CBI's unpreventable employee misconduct defense
had been "render[ed] . . . inapplicable."^(24) <#N_24_>

Under Commission precedent, to prevail on the affirmative defense of
unpreventable employee misconduct, an employer must show that it has (1)
established work rules designed to prevent the violation, (2) adequately
communicated those rules to its employees, (3) taken steps to discover
violations, and (4) effectively enforced the rules when violations have
been discovered. /See/, /e.g./, /P. Gioioso & Sons Inc. v. Secretary of
Labor/, 115 F.3d 100, 109 (1st Cir. 1997); /Propellex Corp./, 18 BNA
OSHC 1677, 1682, 1999 CCH OSHD ¶ 31,792, p. 46,589 (No. 96-0265, 1999).
Because supervisory "involvement in . . . [asserted] misconduct is
strong evidence that the employer's safety program is lax" and because
"it is the supervisor's duty to protect the safety of employees under
his supervision," the Commission has made the employer's burden of proof
"more rigorous" and the defense "more difficult to establish" when an
employer defends against an alleged violation on the ground of
unpreventable /supervisory /misconduct. /L.E. Myers Co./, 16 BNA OSHC
1037, 1041, 1993-95 CCH OSHD ¶ 30,016, p.41,127 (No. 90-0945, 1993)
(citations omitted). "[T]he employer must establish that it took all
feasible steps to prevent the [incident], including adequate instruction
and supervision of its supervisory employee[s]." /Id./

Like the judge, we also reject CBI's unpreventable employee misconduct
defense, but for different reasons.^(25) <#N_25_> In his decision, Judge
DeBenedetto found that, prior to the time of the alleged violation,
Brosius had either received a copy of the materials faxed from Atherton
to Hubbard or become aware of the materials' contents through other
means and further found that Brosius had deliberately "put aside
Atherton's plan and decided to follow his own procedure." We conclude,
however, that this finding is not supported by a preponderance of the
evidence. Brosius' repeated assertions that he had not received a copy
of the faxed materials and had not otherwise been made aware prior to
the time of the cited incident of the Atherton plan were firm, direct,
and unequivocal. Rather than being internally inconsistent with any
other testimony he gave at the hearing, Brosius' denials of knowledge
were fully consistent with the remainder of his testimony.

The only other witness who testified concerning these faxed materials
was project engineer Hubbard, the addressee and recipient of the fax.
When asked if he had "communicate[d]" the "information" in the faxed
document to Brosius, Hubbard initially replied, "I don't recall. I . . .
didn't have a discussion with him about it. What I did with that fax, I
don't recall." He also conceded that he had no knowledge of whether
Brosius had ever received a copy of the fax. On cross-examination, he
gave testimony that the judge characterized as an//admission that "the
information" in the faxed materials "/would have been communicated/ to
Perry Brosius" (emphasis supplied by the judge). However, we conclude
that the judge's reliance on this testimony was misplaced. At most, the
witness stated on cross-examination that he "could have" and "assume[d]"
that he "would have" made a copy of the fax and put it on Brosius' desk.
But, when asked directly if he could "remember if you did or not," he
answered that "I have no idea what I did with that."

On this record, we find that Brosius' unequivocal denial that he had
received a copy of the faxed materials prior to the cited incident is
unrefuted. In addition, while we agree with the judge that this
testimony is "astonishing," we disagree with his conclusion that it is
"simply not credible." On the contrary, there is additional evidence in
the record that enhances the credibility of Brosius' claim. For example,
the evidence that the fax was sent by Atherton directly to Hubbard, with
no indication that Atherton had previously discussed his plan with
Brosius, that he was sending a copy of the fax to Brosius, or that he
had instructed Hubbard to convey his plan to Brosius, suggests the
possibility that Atherton failed to communicate this critical
information to Brosius. In addition, Hubbard admitted at the hearing
that he failed to follow Atherton's instructions to purchase the 12-inch
pipe that was to be used in the supporting column and to resolve a
particular technical problem in implementing the plan. These admissions
lend credence to Brosius' claim that Hubbard also failed to send him a
copy of the faxed materials.

Based on the record evidence, however, we too reject CBI's unpreventable
supervisory employee misconduct defense, on the ground that CBI has not
shown that the misconduct of Brosius and Coleman was unpreventable.
Specifically, it has not shown that "it took all feasible steps to
prevent the [incident], including adequate instruction and supervision
of its supervisory employee[s]." /L.E. Myers Co./, 16 BNA OSHC at 1041,
1993-95 CCH OSHD at p.41,127. /See also/ /Consolidated Freightways
Corp./, 15 BNA OSHC 1317, 1321, 1991-93 CCH OSHD ¶ 29,500, p.39,810 (No.
86-0351, 1991). The record establishes that Brosius was faced with an
unforeseen and difficult problem that required an innovative solution.
At least three CBI supervisory employees, each acting independently,
recognized this problem and considered possible solutions. Both Brosius
and Coleman concluded that there was no /safe /means of assembling the
spider hub that did /not /involve a violation of the "no riding" rule.
However, Brosius' immediate supervisor, project manager Atherton,
arrived at a different conclusion, devising a plan that did not require
any employee to ride a load. Yet, despite coming up with what seems to
have been a novel solution to a novel problem, Atherton failed to convey
that solution to his subordinate, Brosius.^(26) <#N_26_> Nor did
Atherton, over a period of two weeks, follow up by, for example, picking
up a phone to check with Hubbard or Brosius on the implementation of his
plan or visiting the site in person. Under these circumstances, we
conclude that Atherton's failure to directly convey this critical
information to Brosius constituted a failure to provide "adequate
instruction and supervision of [CBI's on-site] supervisor."^(27)
<#N_27_> /Cf. Mineral Indus. & Heavy Constr. Group, Brown & Root, Inc.
v. OSHRC/, 639 F.2d 1289 (5th Cir. 1981) (management officials' failure
to provide training or instructions to implement required safety
procedure constituted willful violation);/Capform, Inc./, 19 BNA OSHC
1374, 1376-77, 2001 CCH OSHD ¶ 32,320, pp.49,477-78 (No. 99-0322, 2001),
/petition for review filed/, No. 01-60417 (5th Cir. May 24, 2001)
(instructions inadequate where employees had been trained in routine
stripping procedures but not been shown any "method that would have
enabled them to safely remove an Ellis jack" when it "could not be
pulled out in the usual manner").

We also note that the unpreventable employee misconduct defense fails as
to crane operator Smith, who engaged in the act that violated the cited
standard, and foreman Coleman, who directed Smith to operate the crane
with an employee riding on the hub. As indicated, the pertinent
incorporated ANSI Safety Code provision was section 5-3.2.3(e), which
provides that "/[t]he operator/ [of a crawler crane] shall not hoist,
lower, swing, or travel while anyone is on the load or hook" (emphasis
added). Accordingly, the violation at issue here occurred when crane
operator Smith moved the load of his Lima crawler crane while another
employee (Red Nichols) was on it. CBI has not shown that crane operator
Smith's violative conduct was unpreventable.^(28) <#N_28_> /Cf. Capform,
Inc./, 19 BNA OSHC at 1377-78, 2001 CCH OSHD at p. 49,478 (employer
could not establish unpreventable employee misconduct defense to an
alleged violation of an employee training standard by proving the
unpreventability of the untrained employee's misconduct; it had to show
that its foreman's failure to provide the required training was contrary
to an adequately communicated and enforced company work rule).

The parties' factual dispute over the asserted unpreventability of
foreman Coleman's misconduct is properly resolved in the context of
determining whether Coleman's actual knowledge of Smith's violation of
the cited standard should be imputed to CBI. Under Commission precedent,
Coleman's knowledge/is/ imputable /unless/ CBI "rebut[ted]" the
Secretary's "prima facie showing of knowledge through its supervisory
employee" by "establishing that the failure of the supervisory employee
to follow proper procedures was unpreventable." /Consolidated
Freightways Corp./, 15 BNA OSHC at 1321, 1991-93 CCH OSHD at p.39,810.
Coleman's supervisory misconduct cannot be characterized as
"unpreventable" unless CBI established that "it took all necessary
precautions to prevent [the cited incident], including adequate
instruction and supervision of its supervisor." /Id. /CBI clearly did
not make such a showing here. Instead of taking "all necessary
precautions to prevent" Coleman's supervisory misconduct, project
superintendent Brosius, who was Coleman's own immediate supervisor,
actually issued the instructions that led him to engage in the misconduct.

Accordingly, we conclude that CBI has not established that Brosius,
Smith or Coleman engaged in unpreventable misconduct. Its unpreventable
employee misconduct defense therefore fails.

*C. Willfulness*

"A willful violation is one 'committed with intentional, knowing or
voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety'" and "is differentiated from a
nonwillful violation by an employer's heightened awareness of the
illegality of the conduct or conditions and by a state of mind, /i.e./,
conscious disregard or plain indifference for the safety and health of
employees." /Great Lakes Packaging Corp./, 18 BNA OSHC 2138, 2140-41,
2000 CCH OSHD ¶ 32,094, p.48,186 (No. 97-2030, 2000) (citations
omitted). "Where that state of mind is shown by the actions of
supervisory employees, it is imputed to the employer like a supervisor's
knowledge." /Access Equipment Systems, Inc./, 18 BNA OSHC 1718, 1727,
1999 CCH OSHD ¶ 31,821, p. 46,783 (No. 95-1449, 1999).

In his decision, Judge DeBenedetto found that, notwithstanding the
contrary testimony of project superintendent Brosius and foreman
Coleman, "every one of CBI's employees, management and nonmanagement
alike, who were involved in one way or another with the spider hub
procedure was aware that permitting a man to ride the load was not only
a violation of CBI's own safety rule, but also was a violation of an
OSHA safety regulation."^(29) <#N_29_> Based on this finding, the judge
concluded that the Secretary had sustained her allegation of
willfulness. On review, CBI challenges both the judge's conclusion that
its violation of 29 C.F.R. § 1926.550(b)(2) was willful as alleged and
his underlying finding. For the reasons that follow, we affirm the
judge's factual finding, but only with respect to foreman Coleman.^(30)
<#N_30_>

At the hearing, OSHA compliance officer ("CO") Barletta testified that,
during his on-site investigation of the cited incident, he had discussed
the incident with foreman Coleman. During that discussion, he had
specifically asked Coleman why Coleman had instructed Nichols to ride on
the crane load, rather than using a personnel platform, to which Coleman
had responded, "It was the easiest way to do the job. I knew I was
breaking the OSHA standards, but I felt it was an easy way to get the
job done." The CO asserted that the statements he had attributed to
Coleman were an exact quotation of what Coleman had said. In response,
Coleman testified that he did not believe that he had made those
statements because they were not "true." Thus, for example, he would not
have admitted to Barletta that he had known that the spider hub assembly
procedure violated an OSHA standard because he had not in fact known at
that time that OSHA has a "no riding" rule. Coleman asserted his belief
that CO Barletta had been "confused" and that Barletta had misunderstood
what he (Coleman) had said. In particular, while the witness conceded
that he had said to the CO, "Yes, I knew I committed a violation," he
claimed that he had been referring to a violation of CBI's safety rules,
not OSHA's. In his rebuttal testimony, however, Barletta denied that he
had misunderstood Coleman's statement, repeated the testimony he had
given previously, and again asserted that he was directly quoting what
Coleman had said to him.

Judge DeBenedetto resolved this factual dispute by implicitly crediting
Barletta over Coleman. In particular, he quoted the portion of Coleman's
testimony in which Coleman acknowledged that he had told the CO, "Yes, I
knew I committed a violation," but claimed that the CO "could have been
confused" and that "there could have been a misunderstanding." The judge
expressly discredited that testimony, finding it to be not only an
"ineffectual" response to the CO's testimony but also contrary to
Coleman's prior testimony that he had directed the crane lift under the
assumption that CBI had granted Brosius a variance from the company's
safety rule. For if Coleman assumed that Brosius had a variance, there
would have been no violation of CBI's rules, only a violation of the
OSHA standards. Therefore, Coleman's statement to CO Barletta that he
had "committed a violation" could only have been a reference to an OSHA
violation.^(31) <#N_31_> Having reviewed the testimony of both
witnesses, we agree with the judge's decision to credit Barletta over
Coleman, for the reasons stated by the judge. Based on CO Barletta's
testimony, we find that foreman Coleman had actual knowledge at the time
of the cited incident of the existence of and requirements of the cited
OSHA standard, and that he had a "heightened awareness" of the
illegality of the spider hub assembly operation that occurred under his
personal supervision and direction.

Our findings of Coleman's actual knowledge and heightened awareness are
further supported by the evidence of welder Giannone's complaint to
Coleman after Giannone observed Nichols riding overhead on the crane
load. According to Giannone, he had gone up to Coleman and said, "You
know, that's against OSHA regulations to have a man riding the load." In
his testimony, Coleman neither denied that Giannone had made this
statement nor directly asserted that he had not heard the statement.
Yet, he corroborated Giannone's claim that he had simply brushed
Giannone off.^(32) <#N_32_>

In his decision, Judge DeBenedetto implicitly credited Giannone's
testimony by finding that Giannone had "expressed his complaint to CBI
personnel in terms that defined the safety violation as an OSHA
violation." The judge also expressly discredited that portion of
Coleman's testimony in which he had claimed that he had not fully heard
and understood what Giannone had yelled up to him. The judge found that
Coleman's explanation of this encounter "was unconvincing and
self-contradictory." Having reviewed the testimony of both witnesses, we
agree with the judge's resolution of this factual issue, drawing the
reasonable inference created by the evidence that Coleman had in fact
heard and understood Giannone's complaint and that he had simply ignored
Giannone because he had previously made the decision to conduct the
operation in a manner that violated the cited OSHA standard. Moreover,
although Coleman already knew of OSHA's prohibition against riding the
load of a crane, Giannone's complaint certainly gave him a "heightened
awareness" of the illegality of the particular operation he was in the
process of directing.^(33) <#N_33_> For the reasons stated above, we
conclude that Coleman acted with conscious disregard of the requirements
of the standard and thus acted willfully.

Having found willfulness on the part of the supervisory employee who was
not only overseeing the entire operation at the time of the violation
but actually directing the movements of the crane operator and his load,
we must next determine whether that willfulness is imputable to CBI.
Under Commission precedent, it is -- "unless the supervisory employee's
misconduct was unpreventable." /V.I.P. Structures, Inc./, 16 BNA OSHC
1873, 1875, 1993-95 CCH OSHD ¶ 30,485, p.42,109 (No. 91-1167, 1994).
Here, however, we have already found that Coleman's misconduct was
preventable. We therefore affirm the Secretary's allegation and the
judge's conclusion that CBI's violation of 29 C.F.R. § 1926.550(b)(2)
was willful.

**

**





**

*D. Penalty*

**

The judge assessed the proposed penalty of $55,000 for this willful
violation. On review, CBI does not specifically take issue with this
penalty assessment. Based on our own review of the record in light of
the penalty factors set forth in section 17(j) of the Act, 29 U.S.C. §
666(j), we consider $55,000 to be an appropriate penalty and assess that
amount for CBI's willful violation of 29 C.F.R. § 1926.550(b)(2).

*Order*

We affirm item 1 of citation 2, alleging a willful violation of 29
C.F.R. § 1926.550(b)(2). We assess a penalty of $55,000.

SO ORDERED.





/s/

Thomasina V. Rogers

Chairman







/s/

Ross Eisenbrey

Commissioner





Dated: October 29, 2001

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

The Judge's Decision In This Matter Is Available in Hard Copy By
Contacting the Public Information Office;



telephone: 202-606-5398;



fax: 202-606-5050;



tty: 202-606-5386;



email: lwhitsett@oshrc.gov

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

1. The citation described the violation as follows: "On or about
Tuesday, October 25, 1994, an employee of CBI Services, Incorporated
climbed onto and stood on a load (hollow steel ring) which was then
swung into position and suspended in place by the Marc Crawler Crane."
None of the other items are on review.

2. The "applicable requirement[]" of the ANSI Safety Code, as identified
in the citation, is Section 5-3.2.3(e), which provides:

5-3.2.3 Moving the Load

* * *

e. The operator shall not hoist, lower, swing, or travel while anyone is
on the load or hook.

3. The "Construction Safety Act" was enacted on August 9, 1969, as
section 107 of the Contract Work Hours and Safety Standards Act. Under
the terms of the Construction Safety Act, employees working on covered
federal construction contracts are to be protected from exposure to
"work in surroundings or under working conditions which are unsanitary,
hazardous, or dangerous//to [their] health or safety, as determined
under safety and health standards promulgated by the Secretary [of
Labor]." 40 U.S.C. § 333(a).

4. Section 6(a) of the OSH Act, 29 U.S.C. § 655(a), provides:



Without regard to chapter 5 of title 5, United States Code, or to the
other subsections of this section, the Secretary shall, as soon as
practicable during the period beginning with the effective date of this
Act [/i.e./, April 28, 1971] and ending two years after such date, by
rule promulgate as an occupational safety or health standard any
national consensus standard and any established Federal standard, unless
he determines that the promulgation of such standard would not result in
improved safety or health for specifically designated employees. In the
event of conflict among any such standards, the Secretary shall
promulgate the standard which assures the greatest protection of the
safety or health of the affected employees.



The key term "established Federal standard" is defined as "any operative
occupational safety and health standard established by any agency of the
United States and presently in effect, or contained in any Act of
Congress in force on December 29, 1970." Section 3(8) of the OSH Act, 29
U.S.C. § 652(8). The Commission has held that the term "presently in
effect," as used in section 3(8), means in effect on April 28, 1971, the
effective date of the OSH Act. /See/, /e.g./, /Morrison-Knudsen
Co./Yonkers Contrac. Co., a Joint Venture/, 16 BNA OSHC 1105, 1108-10,
1993-95 CCH OSHD ¶ 30,048, pp. 41,264-66 (No. 88-0572, 1993).

5. In pertinent part, section 6(f) of the OSH Act, 29 U.S.C. § 655(f),
provides that "[a]ny person who may be adversely affected by a standard
issued under this section may at any time prior to the sixtieth day
after such standard is promulgated file a petition challenging the
validity of such standard with the United States court of appeals for
the circuit wherein such person resides or has his principal place of
business, for a judicial review of such standard. . . . The
determinations of the Secretary shall be conclusive if supported by
substantial evidence in the record considered as a whole."

6. Contrary to the Secretary's arguments, neither /NIC/ nor the other
appellate court decision she relies on, /Advance Bronze, Inc. v. Dole/,
917 F.2d 944, 951-52 (6th Cir. 1990), supports her position that in all
circumstances the section 6(f) pre-enforcement judicial review procedure
is "the exclusive remedy for questioning the validity of the Secretary's
standards." Indeed, we are unaware of any Commission or appellate court
decision that has adopted that position.

7. CBI argues on review that its "significant risk" validity challenge
is properly before the Commission because it is a "substantive"
challenge rather than a "procedural" challenge within the meaning of
/NIC/. As indicated, Commission precedent does not distinguish between
"substantive" and "procedural" issues in determining whether a validity
challenge is properly before the Commission. We note nevertheless that
the issue raised by CBI is clearly a "procedural" rather than a
"substantive" challenge within the meaning of /NIC/. /See /583 F.2d at
1052. CBI argues only that the cited OSH Act standard and its
incorporated ANSI provision are invalid because OSHA failed to comply
with the purported /procedural/ requirement that it make and publish in
the Federal Register a formal "significant risk" determination at the
time it promulgated the standard under section 6(a). CBI has /not
/argued before us that the cited OSH Act standard and its incorporated
ANSI provision, either as written or as applied in the instant case,
fail to meet the /Benzene Case /Court's "significant risk" test.

8. In pertinent part, the APA section provides:



(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public --

* * *

(D) substantive rules of general applicability adopted as authorized by
law[.] * * *

For the purpose of this paragraph, matter reasonably available to the
class of persons affected thereby is deemed published in the Federal
Register when incorporated by reference therein with the approval of the
Director of the Federal Register.

9. CBI relies on the Federal Register Act provisions at 44 U.S.C. §§
1505(a) & (b) and its implementing regulations at 1 C.F.R. § 11.2.

10. On May 29, 1971, the Secretary initially adopted Part 1518, and thus
section 1518.550(b)(2), as OSH Act standards through incorporation by
reference. /See /29 C.F.R. § 1910.12(a), as quoted in pertinent part,
/supra/. On December 16, 1972, the Secretary re-promulgated 29 C.F.R.
Part 1518, which had been redesignated in the interim (December 1971) as
29 C.F.R. Part 1926. This time, the Secretary published the full text of
all of the Part 1518/1926 standards, including section 1926.550(b)(2),
as quoted /supra/. The Secretary's re-promulgation of the standards
occurred within the statutory two-year time frame established under
section 6(a) of the OSH Act. /See supra /note 4.

11. The regulation read, in pertinent part:



*§ 1518.31 Incorporation by reference.*



**(a) The specifications, standards and codes of agencies of the U.S.
Government and organizations which are not agencies of the U.S.
Government, to the extent they are legally incorporated by reference in
this part, have the same force and effect as other standards in this
part. The locations where these specifications, standards, and codes may
be examined are as follows:

(1) Offices of the Bureau of Labor Standards, U.S. Department of Labor,
Railway Labor Building, Washington, DC 20210.

(2) The Regional and Field Offices of the Bureau of Labor Standards
which are listed in the U.S. Government Manual 1970-71, at page 324.

36 Fed. Reg. at 7347. When the Secretary subsequently adopted the
Construction Safety Act standards as construction safety and health
standards under the OSH Act, she retained the incorporation-by-reference
provisions of section 1518.31, but she substituted references to OSHA
offices in place of the prior references to Bureau of Labor Standards
offices.

12. Section 6(b)(5) sets forth several /substantive/ criteria that the
Secretary must meet in promulgating new standards "dealing with toxic
materials or harmful physical agents." The /procedures/ for adopting
section 6(b)(5) standards are no different than those that must be
followed in adopting any other standards under section 6(b).

13. Section 3(8) of the OSH Act, 29 U.S.C. § 652(8), defines the term
"occupational safety and health standard" as "a standard which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment and places of employment."

14. /United Steelworkers of America v. Marshall/, 647 F.2d 1189, 1245
n.84 (D.C. Cir. 1980).

15. /Super Excavators, Inc. v. OSHRC/, 674 F.2d 592, 595 (7th Cir. 1981)
(emphasis added).

16. /Kelly Springfield Tire Co. v. Donovan/, 729 F.2d 317, 323 n.9 (5th
Cir. 1984)

17. CBI's argument before us is based almost entirely on statements made
in the//decision's lead opinion, which was written by Justice Stevens
and joined in completely by only two other Justices, neither of whom is
still sitting on the Court. As noted by both the D.C. and Fifth
Circuits, five of the Justices who participated in the decision
(concurring then-Justice Rehnquist and the four dissenters) appear to
have actually disagreed with the plurality's central premise, /i.e./,
that section 3(8) creates a substantive restriction on the Secretary's
authority to promulgate standards under the OSH Act. /See /cases cited
/supra /notes 14 &16.

18. CBI has not cited a single judicial or administrative decision that
supports its contention that the Court's holding in the /Benzene Case
/is "applicable to the promulgation of standards pursuant to section
6(a) of the OSH Act." We are aware of only one prior case in which CBI's
argument has even been raised, and in that case, it was rejected. In
/Frank Diehl Farms/, which we have cited above, the administrative law
judge rejected the argument that 29 C.F.R. § 1910.142 (the "temporary
labor camps" standard) is invalid because the Secretary made no finding
at the time of promulgation that the regulated working conditions posed
a significant health hazard risk. The judge rejected that argument on
the ground that section 1910.142 was a national consensus standard that
had been adopted by the Secretary under section 6(a) of the OSH Act,
while the /Benzene Case/ "was dealing with the Secretary's standard
setting under section 6(b)(5) of the Act which requires a different
procedure from that provided for the adoption of national consensus
standards under section 6(a) of the Act." The judge also found that
there was "no evidence to support a finding that the Secretary exceeded
the authority granted to him under section 6(a) . . . ."

19. In particular, the Senate committee took note of a Labor Department
study that had shown that "a large portion of the voluntary standards
are seriously out of date," and it added that "[m]any" of these
standards "represent merely the lowest common denominator of acceptance
by interested private groups." /Id./

20. As indicated /supra /at note 7, CBI's invalidity challenge is
limited to an assertion of procedural error in the promulgation of the
cited standard and its incorporated ANSI Safety Code provision. CBI has
not claimed that the cited prohibition against riding the load of a
crawler crane, either as drafted or as applied to it, addresses conduct
that does /not/ in fact present "a significant risk of harm" to
employees that could be "eliminated or lessened by a change in
practices." /See Benzene Case/, 448 U.S. at 642. Accordingly, our
decision in this case leaves intact the Commission's precedent governing
the resolution of such issues when they are presented by the parties in
an enforcement action before us. /E.g./, /Andrew Catapano Enterps.,
Inc./, 17 BNA OSHC 1776, 1782-84, 1995-97 CCH OSHD ¶ 31,180, pp.
43,609-10 (No. 90-0050, 1996); /Otis Elevator Co./, 17 BNA OSHC 1166,
1168, 1993-95 CCH OSHD ¶ 30,730, p. 42,663 (No. 90-2046, 1995);
/Anoplate Corp./, 12 BNA OSHC 1678, 1681-82, 1690-91, 1986-87 CCH OSHD ¶
27,519, pp. 35,679-80 & 35,688-89 (No. 80-4109, 1986).

21. Since Bottom 1 was the first tank bottom completed by CBI, Brosius
did not know at that time whether the same problem would arise with
respect to the other three. However, Bottom 1 proved to be the only
component that needed to be re-shaped by using a spider hub.

22. Due to various scheduling problems, project manager Atherton, who
was listed in pre-hearing submissions as a witness for CBI, did not
testify. After calling all of his other witnesses, CBI's counsel
detailed his prior unsuccessful efforts to obtain Atherton's testimony
and expressly informed the judge that he "would still like to take
[that] testimony and have it part of the record." The judge then advised
CBI's counsel that Atherton's testimony was unnecessary because "the
major actors" involved in "the crane situation" had already testified
and he did not "see where [Atherton] would make any significant
contribution." CBI's counsel responded: "In that case, your Honor, we
rest." Under these circumstances, we agree with CBI that the judge erred
in drawing adverse inferences against it in his decision based on
Atherton's non-appearance.

23. Hubbard's duties at the Quincy worksite included the acquisition of
construction materials. The fax was sent to Hubbard so that he could
purchase some of the materials needed in assembling the
previously-requested spider hubs. Additional materials, such as the four
central rings or "hubs" and specialized tools used in assembling the
devices, were shipped to Quincy, at Atherton's direction, from New
Castle and possibly other CBI workplaces.

24. On review, CBI challenges the judge's conclusion that its defense is
"inapplicable," as well as the judge's underlying findings. In reply,
the Secretary argues, among other things, that we should uphold the
judge's findings of "institutional misconduct" and "a systemic
disorder," as well as the other findings that CBI has expressly
challenged on review, because those findings are all based on
credibility determinations that are entitled to deference. It is well
settled that "[t]he Commission will ordinarily defer to credibility
determinations by a judge that are properly explained, but it need not
defer to findings that are not based on the demeanor of the witnesses or
on other factors that are peculiarly observable by the judge who
presides over the hearing." /Metro Steel Constr. Co./, 18 BNA OSHC 1705,
1706 (No. 96-1459, 1999) (not reported in CCH) (citations omitted).
Here, the judge did not state that he was basing any of the findings
that are at issue on review on the demeanor of any witness or on any
other factor concerning a witness that was uniquely observable by him.
Instead, in each instance where he either expressly or impliedly
credited or discredited particular testimony, he stated that he was
doing so//based on factors that we are "in as good a position as the
judge" to evaluate, /see/ /id. /at 1706-07,//such as, whether a witness'
testimony was internally inconsistent or implausible. Under the
Commission's case law, we owe no deference to these challenged findings.

25. We need not resolve the parties' dispute over the judge's findings
of "institutional misconduct" and "a systemic disorder." Because the
challenged findings are not necessary to our resolution of the issues
before us and because they do not form any part of the basis of our
decision in this case, we set them aside.

26. Brosius made clear that, if he had known of Atherton's plan at the
time of the hub assembly, he "would have done it Art's way." He further
testified that, if he had known CBI's "no riding" rule was also a
legally-enforceable OSHA standard, he would have contacted Atherton
before proceeding with his own plan. Contrary to this testimony, Judge
DeBenedetto found "that every one of CBI's employees, management and
nonmanagement alike, who were involved in one way or another with the
spider hub procedure was aware that permitting a man to ride the load
was . . . a violation of an OSHA safety regulation." We set aside that
finding as it relates to Brosius, noting that it is inconsistent with
Brosius' direct and unrebutted testimony that he had not been aware at
the time of the OSHA standard.

27. We find further evidence of CBI's inadequate supervision and
training of Brosius in the project superintendent's testimony to the
effect that he had failed to comply with CBI's in-house variance rule
because he had been "convinced" that he was "going to do it [/i.e./,
assembly of the spider hub] in a safe way, and that was the object,
doing it as safe as possible." By failing to inform its highest-level
field supervisor that a decision to deviate from CBI's safety rules,
such as its "no riding" rule, might in fact raise issues of legality as
well as safety, it appears that CBI may well have contributed to an
atmosphere in which Brosius apparently felt free to decide on his own
that he would perform the spider hub assembly operation in a manner that
violated the "no riding" rule -- without even discussing the matter with
his own supervisor, the project engineer or the job site safety
supervisor, let alone following the company's formal in-house variance
procedure. Indeed, we find it noteworthy that, aside from generalized
testimony to the effect that CBI considered its in-house variance
procedure to be a workplace safety rule just like any other, and
enforced it accordingly, the record is virtually silent concerning any
specific efforts that CBI may have made to communicate and enforce that
particular rule. Even the evidence introduced by CBI relating to its
post-incident disciplinary actions against Brosius contains no
indication that any part of that discipline was imposed for Brosius'
violation of the in-house variance rule. CBI's focus appears to have
been entirely on the project superintendent's violation of the "no
riding" rule.

28. CBI has not even made such a claim; nor could it, since the evidence
establishes that Smith was acting at the time under the direct
supervision and observation of his immediate supervisor, foreman
Coleman, as well as pursuant to the express instructions of Coleman's
supervisor, project superintendent Brosius.

29. We have already considered and set aside this finding to the extent
it relates to the knowledge of project superintendent Brosius, finding
(contrary to the judge) that Brosius did /not /have knowledge of the
cited OSHA standard. /See supra /note 26. We now address this same
finding to the extent that it relates to all other CBI employees who
"were involved in one way or another with the spider hub procedure."

30. We need not resolve the parties' dispute over the judge's finding to
the extent it relates to employees /other than/ Brosius and Coleman.
Because the challenged finding with respect to those other employees is
not necessary to our resolution of the issues before us and because it
does not form any part of the basis of our decision in this case, we set
it aside.

31. We find further support for this conclusion in the evidence relating
to a prior conversation between Barletta and Coleman during a previous
inspection. Particularly in light of that prior conversation with the
same CO, we consider it highly unlikely that Coleman's admission to that
CO that he knew he had "committed a violation" could have been a
reference to anything other than a violation of OSHA's standards.

32. Coleman suggested that he had not heard "exactly what Mr. Giannone
said" and/or understood "what he was talking about" because he had been
busy at the time directing the assembly operation from the upper-level
scaffolding while Giannone had been yelling up to him from the bottom of
the tank shell. However, Coleman also testified that, to the extent that
he had heard Giannone's complaints, he had simply ignored them because
he had considered Giannone to be a "hothead" and simply "didn't have
time to find out" what Giannone was complaining about.

33. Commissioner Eisenbrey finds further support for the Commission's
findings of actual knowledge and heightened awareness in the evidence of
a discussion that took place between Coleman and CO Barletta during a
prior inspection of another CBI workplace. Both parties testified that
their earlier discussion included a detailed review of the specification
requirements for "crane or derrick suspended personnel platforms," as
set forth in 29 C.F.R. § 1926.550(g), but no direct reference to the
OSHA prohibition against riding a crane load. Coleman testified to the
effect that he had not considered that prior discussion to have any
relevance to the cited spider hub assembly operation because CBI had not
used a crane-suspended personnel platform during that operation.
Commissioner Eisenbrey concludes, however, that Coleman could not have
failed to understand the relevance of his prior discussion with CO
Barletta to the hub-assembly operation here. Having been expressly
informed that it was a violation of OSHA standards to lift an employee
by crane on a work platform that did not meet several specific
requirements designed to protect the employee from a fall, Coleman must
also have known that it was prohibited under the OSHA standards to
dispense with the personnel platform ("man basket") altogether.
Accordingly, Commissioner Eisenbrey concludes that the prior discussion
between Coleman and CO Barletta also gave Coleman a "heightened
awareness" of the illegality of the hub assembly operation that he was
directing at the time of the cited violation.