________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 97-0771
                                :
LANCASTER ENTERPRISES, INC.,    :
d/b/a ORBIT ROOFING CO.         :
                                :
          Respondent.           :
________________________________:

*/DECISION/*

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

BY THE COMMISSION:

Following a fatal injury to an employee of Lancaster Enterprises, Inc.,
d/b/a Orbit Roofing Co. ("Lancaster"), the Occupational Safety and
Health Administration ("OSHA") inspected Lancaster's worksite and issued
one citation alleging six violations of various construction standards
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-78 (the "Act"). Lancaster contested the citation in its entirety.
After a hearing at which compliance officer ("CO") Alexander Jay Steel,
Jr. was the only witness, Administrative Law Judge Robert A. Yetman
affirmed two and vacated three of the items.[1] At issue before the
Commission is the judge's decision to vacate

Item 1, which alleges that Respondent failed to implement a safety
program, as well as the Secretary's motion to amend Item 1. Also before
the Commission is the judge's decision to vacate Item 4, which alleges
that Respondent failed to cover skylights at the worksite. For the
reasons stated below, we affirm the judge's decision in part and reverse
in part.

*I. BACKGROUND*

Lancaster is headquartered in Massachusetts, where it performs roofing
work. During the time in question, a crew of four Lancaster employees,
including a foreman, was installing a rubber roof on the three-story
"Cleaves Court" apartment building in Roxbury, Massachusetts. To access
the roof, the employees ascended stairs to the building's third floor
and then climbed up a ladder, through a square hatchway. The roof was
approximately 60 feet long, from front to back, and rectangular;
however, it is not clear how wide the roof was. Most of the roof's
surface was flat, and there were three skylights installed in it.

On January 13, 1997, employee John Kulikowski worked above the
building's porches on the rear portion of the roof, which had a slight
pitch. While Kulikowski was working, he stepped in glue that had been
poured near the edge of the roof, slipped, and fell 33 feet to his death.

*II. ITEM 1: SAFETY PROGRAM/TRAINING*

Item 1 alleges that "[a] Safety Program, which included weekly safety
meetings, training and walkaround inspections, was not implemented to
train and instruct employees in the recognition and avoidance of unsafe
conditions," in violation of 29 C.F.R. § 1926.20(b)(1).[2] CO Steel
alleged that this item "generally include[s] all safety, for all types
of construction sites, hardhats, and ladders."[3]

CO Steel stated that Marie Raftes, Lancaster's owner and president,
admitted to him that Lancaster did not have a safety program and "had
contacted Mr. Metzler for assistance in that matter."[4] Steel also
testified that Don Bullens, Lancaster's project manager and
superintendent, admitted to him that the company did not have a safety
program, did not conduct weekly safety meetings, and had not conducted
safety training for any of its employees. Steel added that Joseph Bebo,
who had worked for Lancaster for one and one-half weeks before the
accident and who was the foreman on the day of the accident, informed
him that "he had never seen a program, or . . . that [Lancaster] had
never had any safety meetings, [that] there was no safety ever discussed
at any time since he had been in the employ of the company, and [that he
had] . . . concluded that there must be no program." The judge vacated
Item 1, holding that: (1) the cited standard, on its face, did not make
clear what conduct was required, and (2) there was no direct evidence
that hazards covered by 29 C.F.R. Part 1926, the construction industry
standards, existed at Respondent's worksite and required the
establishment of a safety program.

We affirm the judge's decision to vacate this item. Under section
1926.20(b)(1), "an employer may reasonably be expected to conform its
safety program to any known duties[,] and . . . a safety program must
include those measures for detecting and correcting hazards [that] a
reasonably prudent employer similarly situated would adopt." /Northwood
Stone & Asphalt, /16 BNA OSHC 2097, 2099, 1993-95 CCH OSHD ¶ 30,583, p.
42,349 (No. 91- 3409, 1994), /aff'd without published opinion, /82 F.3d
418 (6th Cir. 1996). We find that the Secretary did not make a case
under either prong of the test. She offered no proof that Lancaster
actually knew of any duties under this standard to train employees in
regard to ladders and hardhats. Nor did she introduce evidence to show
that a reasonably prudent employer in Lancaster's position would have
adopted a safety program addressing hazards related to the use of
ladders or requiring hardhats. The Secretary claims that "conditions and
equipment clearly regulated under Part 1926 . . . existed at the
worksite" and that Lancaster's employees were "potential[ly] expos[ed]"
to "commonly encountered construction hazards," but she fails to
identify any such hazards (other than the fall hazards addressed in
Items 4 and 6) or point to any related accidents.[5]

*Amendment*

On review, the Secretary moves to amend Item 1 to allege violations of
specific training standards, 29 C.F.R. §§ 1926.21(b)(2) and
1926.1060(a), instead of the general provision cited. Although Lancaster
did not respond to the Secretary's motion, we will consider its
merits.[6] /Cf. Seward Motor Freight, /13 BNA OSHC 2230, 2232, 1987-90
CCH OSHD ¶ 28,506, pp. 37,785-86 (No. 86-1691, 1989) (Commission
considers the merits of unopposed motions to amend).

Posthearing amendments are permissible under Federal Rule of Civil
Procedure 15(b) if the parties "squarely recognized" that they were
trying the unpleaded issue and either expressly or implicitly consented
to trial of the unpleaded issue.[7] /McWilliams Forge Co., /11 BNA OSHC
2128, 2129-30, 1984-85 CCH OSHD ¶ 26,979, p. 34,669 (No. 80-5868, 1984).
The test for determining trial by consent is whether the parties clearly
knew that the evidence was directed toward an unpleaded issue. /Safeway
Store No. 914, /16 BNA OSHC 1504, 1516, 1993-95 CCH OSHD ¶ 30,300, p.
41,749 (No. 91-373, 1993). Amendments are also permissible where they
merely add an alternative legal theory, but do not alter the essential
factual allegations of the citation. /A.L. Baumgartner Constr., /16 BNA
OSHC 1995, 1997, 1993-95 CCH OSHD ¶ 30,554, p. 42,272 (No. 92-1022,
1994) (affirming judge's /sua sponte /amendment).

*1. 29 C.F.R. § 1926.21(b)(2)*[8]

The Secretary argues that "the facts tried in this case clearly describe
a violation" of section 1926.21(b)(2). She makes two factual assertions.
She contends that Lancaster should have trained its employees in the use
of a materials disposal chute because "the record included evidence that
materials were being thrown off the roof toward a dumpster in the
parking lot more than 20 feet below[, and] a debris chute was not used
to contain the falling debris." She also asserts that Lancaster's
employees should have been trained in the use of hardhats because
employees using "outside stairs" on the apartment building's porches
were "exposed to the hazard of being struck by materials blowing or
being thrown off the roof towards the dumpster" and because "[e]mployees
climbing up the ladder through the roof hatchway were . . . exposed to
head injury from dropped or kicked roofing tools, adhesive rollers, and
other tools being used to replace and install several skylights."
Neither of these assertions establishes that the parties recognized that
they were trying this issue. Although CO Steel testified that an
employee threw material off the roof on January 13, 1997, and Respondent
did not object, this evidence does not indicate trial by consent because
it was introduced in support of a pleaded issue, Item 3, which alleged
that Respondent failed to use an enclosed debris chute when required.[9]
/See McWilliams Forge, /11 BNA OSHC at 2130, 1984-85 CCH OSHD at p.
34,669 (failure to object to evidence that is relevant to both pleaded
and unpleaded issues does not demonstrate implied consent in the absence
of some obvious attempt to raise the unpleaded issue). There is no other
evidence in the record related to disposal chutes. Similarly, the
Secretary's allegations regarding the need for and lack of hardhats to
protect employees from items being blown or thrown from the roof or
items being dropped or kicked onto employees on the ladder are based on
mere speculation and were not tried at all.[10] The only mention of
hardhats at the hearing was CO Steel's statement that the alleged
violation of section 1926.20(b)(1) turned on the absence of a program
dealing with "all safety, for all types of construction sites, hardhats,
and ladders." Thus, it is clear that this issue was not tried by consent
and that granting the amendment would impermissibly expand the factual
allegations of the citation. We therefore deny the Secretary's motion to
amend the citation to allege a violation of section 1926.21(b)(2).

*2. 29 C.F.R. § 1926.1060(a)*[11]

We also deny the Secretary's motion to amend the citation to allege a
violation of section 1926.1060(a) for Lancaster's failure to train its
employees to recognize hazards related to ladders and stairways, which
the Secretary describes as "commonly encountered construction hazards."
There is scant evidence in the record about the condition of the
portable ladder the Secretary refers to, usage of the ladder, or the
surface on which it was used. Indeed, there was no specific evidence
introduced at the hearing identifying any "hazards related to ladders
and stairways" at Lancaster's worksite. Moreover, the evidence in the
record that Lancaster's employees used a ladder was relevant to pleaded
issues, including Item 4 which alleged that Respondent's employees using
the ladder and hatchway were exposed to unprotected skylights in the roof.

For the foregoing reasons, the Secretary's motion is denied.

*III. ITEM 4: SKYLIGHTS*

Item 4 of the citation provides in relevant part: "[e]mployees were
exposed to possible serious injury while walking and/or working on the
roof where skylights were not provided with covers to prevent an
employee from falling through the plexiglass skylight." As noted, the
roof of the apartment building was approximately 60 feet long from front
to back. Its rectangular, low-sloping surface was divided into sections
by an unknown number of parapets that ran from front to back. The
sections of the roof between the parapets measured approximately 21 feet
each; however, the total width of the roof from side to side is not
clear from the record. CO Steel testified that when he inspected
Lancaster's worksite, the only way to access the roof was to climb a
ladder from the third floor of the building through a square hatchway
opening near the back of the roof.

At the time of the inspection, there were two relatively new, plexiglass
skylight fixtures installed in the roof, near the front of the building.
The square bases of these skylight fixtures measured 40x40 inches and
sat above the surface of the roof. Their plexiglass tops had a "bubble"
or "dome" shape. There was also an older, glass skylight fixture
installed in the roof, near the back of the building, adjacent to the
hatchway. The base of this skylight fixture was square and sat above the
surface of the roof, and its top had an "A-frame" shape.[12]

To prove a violation, the Secretary must show by a preponderance of the
evidence that: "(1) the cited standard applies, (2) there was a failure
to comply with the cited standard, (3) employees had access to the
violative condition, and (4) the cited employer either knew or could
have known of the condition with the exercise of reasonable diligence."
/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 judge vacated this item because he
found no evidence that employees were exposed to the hazard, and he did
not address the other elements of the violation. For the reasons stated
below, we reverse the judge's decision and affirm this item.

*A. Applicability of the Standard*

Section 1926.501(b)(4)(i) provides that: "[e]ach employee on a
walking/working surface shall be protected from falling through holes
(including skylights) more than 6 feet (1.8 m) above lower levels, by
personal fall arrest systems, covers, or guardrail systems erected
around such holes."[13] This plain language requires protection against
falling through holes /and /skylights. An "empty" skylight, /i.e./, an
opening cut in a roof in preparation for the installation of a skylight
fixture, is a hole that must be protected within the meaning of the
standard. See 29 C.F.R. § 1926.500(b) (defining "hole"). Therefore,
applying the standard only to empty skylights would render the language
"(including skylights)" superfluous. See /Empire Co. v. OSHRC, /136 F.3d
873 (1st Cir. 1998) (basic canon of statutory construction that every
portion of the regulatory language must have meaning); /General Motors,
/17 BNA OSHC 1217, 1220, 1993-95 CCH OSHD ¶ 30,793, p. 42,810 (No.
91-2973, 1995) (consolidated) (must give effect to every clause and word
in defining a standard's application), /aff'd/, 89 F.3d 313 (6th Cir.
1996). Moreover, the Commission has held that skylights covered with
translucent material are "skylight openings" subject to guarding
requirements. /See Phoenix Roofing, /17 BNA OSHC 1076, 1077-78, 1993-95
CCH OSHD ¶ 30,699, pp. 42,603-04 (No. 90-2148, 1995) (citing 29 C.F.R. §
1926.500(b)(4) (1994)), /aff'd without published opinion, /79 F.3d 1146
(5th Cir. 1996). We conclude, therefore, that the cited standard clearly
applies to "intact" skylight fixtures, /i.e./, those with a plexiglass
or glass top in place, as well as empty skylights. Accordingly, we find
that the standard's guarding requirement applies to the skylights at
Lancaster's worksite.

*B. Noncompliance*

Photographs taken during the inspection and CO Steel's testimony
establish that the glass and plexiglass skylights were not protected by
covers or guardrail systems on January 14, 1997. CO Steel also testified
that the plexiglass skylights "had a warning label on them that said
hazardous. I believe it said 'Fall hazard. These domes will not contain
your weight,' or 'will not hold your weight[.]'" There was an apartment
below the skylights. Additionally, the record shows that superintendent
Bullens was on the roof on January 14, 1997, during the inspection, and
on January 13, 1997, the day the accident occurred. Steel testified that
Bullens told him on January 14, 1997 that "this was the way the roof was
[on January 13, 1997]. It hadn't changed. The only thing that had
changed was, the rubber roof had been installed." Thus, the evidence
establishes that the skylights were not in compliance with the standard
on January 13, 1997, and January 14, 1997.

*C. Access*

We also find that Lancaster's employees were exposed to the hazard posed
by the unprotected glass skylight on January 13, 1997. According to CO
Steel, the ladder in the hatchway was the only means of accessing the
roof when he inspected the worksite on January 14, 1997. Based on
conversations with Lancaster's employees, he also testified that
immediately after Kulikowski fell on January 13, 1997, foreman Bebo "ran
for the hatchway, and ran down the ladder to see what had happened." The
precise distance between the glass skylight and the employees' work area
is not clear from the testimony; however, it is clear from the CO's
sketch of the roof and the photograph of the hatchway that the glass
skylight is closely adjacent to the hatchway and ladder. The use of the
hatchway to get to and from the roof made it reasonably predictable that
an employee would enter the zone of danger presented by the unguarded
glass skylight. /See Fabricated Metal Prods., /18 BNA OSHC 1072,
1073-74, 1998 CCH OSHD ¶ 31,463, p. 44,506-07 (No. 93-1853, 1997)
(citing /Gilles & Cotting, Inc., /3 BNA OSHC 2002, 1975-76 CCH OSHD ¶
20,448 (No. 504, 1976)); /Phoenix Roofing, /17 BNA OSHC at 1079, 1993-95
CCH OSHD at p. 42,605.

However, the evidence does not show that employees were exposed to the
hazard posed by the plexiglass skylights. Kulikowski, McManis, and Walsh
worked at the rear of the 60-foot roof, and there is no evidence that
they walked or worked near the plexiglass skylights at the front of the
roof on January 13, 1997. /See RGM Constr. Co., /17 BNA OSHC 1229, 1234,
1993-95 CCH OSHD ¶ 30,754, pp. 42,729-30 (No. 91-2107, 1995). Steel's
testimony that foreman Bebo was "working on one of the skylights, or
preparing one of the skylights for installation at another point on the
roof" does not establish where Bebo worked in relation to the plexiglass
skylights on January 13, 1997 and suggests that Bebo may have been
working on the glass skylight fixture, which was at the back of the
roof, or preparing a new dome to be installed, which could have been
anywhere on the roof. Moreover, it is not clear whether Lancaster's
employees, or other contractors, installed the plexiglass skylights, and
even if we assume /arguendo /that Lancaster's employees installed the
skylight fixtures, there is no evidence they installed them on January
13, 1997 or January 14, 1997, the only days on which the Secretary has
established that a violative condition existed.

*D. Knowledge*

To meet her burden of establishing employer knowledge, the Secretary
must show that the cited employer either knew or, with the exercise of
reasonable diligence, could have known of the presence of the violative
condition. /Pride Oil Well Serv., /15 BNA OSHC 1809, 1814, 1991-93 CCH
OSHD ¶ 29,807, p. 40,583 (No. 87-692, 1992); /Gary Concrete Prods., /15
BNA OSHC 1051, 1052, 1991-93 CCH OSHD ¶ 29,344, p. 39,449 (No. 86-1087,
1991). The actual or constructive knowledge of a foreman or supervisor
can be imputed to the employer. /Tampa Shipyards, /15 BNA OSHC 1533,
1537, 1991-93 CCH OSHD ¶ 29,617, p. 40,100 (No. 86-360, 1992)
(consolidated).

As noted, the record shows that superintendent Bullens was on the roof
on January 13, 1997, the day the accident occurred, and on January 14,
1997, during the inspection, and that he told Steel on January 14, 1997
that the condition of the roof had not changed. Also as noted, the
record shows that foreman Bebo was on the roof on January 13, 1997 and
that he used the hatchway ladder on that date. Additionally, the
unprotected glass skylight fixture was readily observed during the
inspection. Because superintendent Bullens observed the hazardous
condition during the inspection and confirmed that the roof was
unchanged from the day before, and because the glass skylight was
readily observable and closely adjacent to the ladder foreman Bebo used
on January 13, 1997, we hold that Lancaster had constructive knowledge
of the violation. /See Kokosing Constr. Co., /17 BNA OSHC 1869, 1871,
1995-97 CCH OSHD ¶ 31,207, p. 43,723 (No. 92-2596, 1996) (finding
constructive knowledge due to the conspicuous location and readily
observable nature of the violative condition, as well as the presence of
the employer's crews in the area). We therefore find that the Secretary
established a violation and affirm Item 4 as to the glass skylight.[14]

*IV. CHARACTERIZATION OF THE VIOLATION*

"[A] violation is serious if there is a substantial probability that
death or serious physical harm could result from the violation."
/Capform, Inc., /16 BNA OSHC 2040, 2042, 1993-95 CCH OSHD ¶ 30,589, p.
42,357 (No. 91-1613, 1994) (citing 29 U.S.C. § 666(k)). The judge did
not reach this issue. Here, CO Steel testified that "if an employee . .
. tripped, slipped, or potentially, f[e]ll into one of these
[skylights], he could be seriously hurt, or death could result." An
employee who fell through the opening could be cut by the glass and
could fall through onto the floor of the apartment below. We find that
the violation was serious. /Cf. Phoenix Roofing, /17 BNA OSHC at 1078,
1993-95 CCH OSHD at p. 42,604-05 (a 23 square-inch skylight opening that
was flush with the roof surface, lacked any parapet or barricade around
it, and had only flimsy covering of translucent material presented a
fall hazard).

*V. PENALTY*

The Act mandates that the Commission give "due consideration . . . to
the appropriateness of the penalty with respect to the size of the
business of the employer being charged, the gravity of the violation,
the good faith of the employer, and the history of previous violations."
29 U.S.C. § 666(j). "These factors are not necessarily accorded equal
weight; generally speaking, the gravity of a violation is the primary
element in the penalty assessment." /J.A. Jones Constr., /15 BNA OSHC
2201, 2214, 1991-93 CCH OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993).
"The gravity of a particular violation depends on 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." Id. The Secretary proposed a penalty of $4,500 for the
skylight item.

In applying the four factors here, we note that we affirm the violation
in regard to only one of the three skylights alleged by the Secretary to
be in violation, and we note that the fatal accident was not related to
it. The employer is small, with ten employees, and there is no evidence
of other recent violations. In regard to good faith, we note that
Lancaster had no safety program. In light of these four factors, we
assess a penalty of $2,500.

*VI. ORDER*

For the reasons set forth above, we vacate Item 1. We affirm Item 4 as a
serious violation of 29 C.F.R. § 1926.501(b)(4)(i) for which we assess a
penalty of $2,500.

 

/s/________________________
Thomasina V. Rogers
Chairman

 

/s/________________________
Gary L. Visscher
Commissioner

 

/s/________________________
Stuart E. Weisberg
Commissioner

Date: August 1, 2000

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

________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 97-0771
                                :
LANCASTER ENTERPRISES, INC.,    :
d/b/a ORBIT ROOFING CO.         :
                                :
          Respondent.           :
________________________________:

APPEARANCES:

   Christine Eskilson, Esq.
   Office of the Solicitor, Boston, MA
   U.S. Department of Labor
      For Complainant

   Barrett A. Metzler, CSP
   Northeast Safety Management, Inc.
   Columbia, Connecticut
      For Respondent


Before:  Administrative Law Judge Robert A. Yetman

*_DECISION AND ORDER_*

This proceeding arises under § 10 (c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651, /et seq /("the Act") to review a
citation issued by the Secretary of Labor pursuant to § 9 (a) of the Act
and a proposed assessment of penalty thereon issued pursuant to § 10 (a)
of the Act.

Following a fatal accident at Respondent's work site on January 13,1997,
an inspection was conducted by complainant commencing January 14, 1997.
As a result of the inspection, a serious citation was issued to
Respondent alleging six violations of various construction standards.
Complainant withdrew item 2 of the citation and the penalty proposed for
said violation at the hearing conducted in this matter. In response to
the complaint filed by the Secretary with this commission, Respondent
concedes subject matter jurisdiction of the commission as well as
jurisdiction over Respondent. Respondent generally denies the remaining
allegations within the complaint and asserts four affirmative defenses.

The following facts were stipulated by the parties:

    1. On January 13, 1997, employees of Lancaster Enterprises, Inc.,
    d/b/a Orbit Roofing ("Orbit"), were engaged in roofing activities at
    5-17 Cleaves Court, Roxbury Massachusetts pursuant to a contract
    with Northeast Cleaves Limited Partnership, the owners of Cleaves
    Court Apartments. The job had started during the last week of
    December 1996.

    2. 5-17 Cleaves Court is an apartment building. Orbit employees were
    installing a rubber roof.

    3. The roof of 5-17 Cleaves Court is a low-slope roof approximately
    thirty-three feet above the ground.

    4. At approximately 2:30 p.m. on January 13, 1997, Orbit employee
    John Kulikowski fell from the roof at Cleaves Court and died.

    5. At the time of the fall, Kulikowski and Orbit employee Mark
    McManus were engaged in laying rubber to finish the plywood roof
    section above the porch at the rear of 5-17 Cleaves Court.

    6. At the time of the fall, Orbit employees Edward Walsh and Joseph
    Bebo were also on the roof. Bebo was the foreman for the job.

    7. Orbit did not use a guardrail system to protect its employees
    from falling from the edge of the roof.

    8. Orbit did not use a safety net system to protect its employees
    from falling from the edge of the roof.

    9. Orbit did not use a personal fall arrest system to protect its
    employees from falling from the edge of the roof.

Respondent's answers to complainant's interrogations and response to
requests to produce documents (Exhibits C-1 and C-2) were also entered
into evidence. Complainant called one witness, Mr. Alexander Jay Steel,
the compliance officer who conducted the investigation and respondent
rested its case without calling any witnesses. Although the period of
investigation set forth in the citation is January 14, 1997 to August 4,
1997, the evidence elicited at the hearing supports the inference that
all of the alleged violations occurred on January 13, 1997.[15]

*_Discussion_*

The citation issued to Respondent contains the following alleged
construction standard violations:[16]

    _Citation 1 Item No. 1_

    29 CFR 1926.20(b)(1)

    The employer did not initiate and maintain such programs as were
    necessary to comply with this part:

    Jobsite:

        A Safety Program, which included, weekly safety meetings,
        training and walkaround inspections, was not implemented, to
        train and instruct employees in the recognition and avoidance of
        unsafe conditions.

The standard set forth at 29 CFR 1926.20(b)(1) reads as follows:

        (b) Accident Prevention Responsibilities

    (1) It shall be the responsibility of the employer to initiate and
    maintain such programs as may be necessary to comply with this part.

The language of the cited standard is remarkable because, on its face,
it cannot be determined what conduct is required of Respondent.
Moreover, the standard appears to grant discretion to employers to
determine which programs "may be necessary to comply with this part." In
this instance the Secretary takes the position that Respondent violated
the standard by failing to have a safety program. In support of the
allegation, complainant points to the testimony of compliance officer
Steel that the firm's owner, Marie Raftes, and superintendent, Mr. Dan
Bullens, admitted to him that Respondent firm did not have a safety
program, did not conduct safety meetings or provide safety training to
employees (Tr. 66-67).[17] However, according to Mr. Steel, the alleged
violation relates to the firm's failure to have a safety program
relating to matters other than roofing operations (Tr. 77). The failure
to have a safety program relating directly to the roofing industry is
addressed at citation item 6 /infra./

Although the standard cited in this instance is a paragon of ambiguity
regarding the substance of the safety program required, (See /Pelron
Corp /12 BNA at 1835 where the Commission stated that the Secretary must
define an alleged hazard in a way that "apprises the employer of its
obligations.") the Review Commission has held that a reasonably prudent
and experienced employer would understand which "specific measures" are
required to be taken under the standard to protect employees from safety
hazards that may be present at specific worksites /see Northwood Stone
and Asphalt 1994 CCH OSHD ¶ 30,583 at page 42,349. /The only evidence
presented by the Secretary in support of this allegation is the
"admission" made to the compliance officer by management personnel that
the firm did not have a safety program.[18] Although there is no
evidence regarding the hazards that are reasonably expected to be
present at Respondent's worksites, it is inferred, based upon the record
in this case, that employees are exposed, at a minimum, to fall hazards.
However, the paucity of this record leaves one to guess at which
specific hazards must be addressed by a safety program. Clearly,
Respondent need not have a safety program for ship repair (29 CFR
1926.30) and it is unlikely that Respondent's work activities require an
employee emergency action plan (29 CFR 1926.35) or that Respondent is
required to provide means of egress pursuant to 29 CFR 1926.34. Although
Complainant has established that management officials of this small
company acknowledged to an interrogating government official that the
firm does not have a safety program, there is no direct evidence that
specific hazards covered by subpart C of the regulations or at another
part of the 1926 construction standards existed at respondent's worksite
which required the establishment of a safety program contemplated by the
Secretary. Indeed, it is not known what the Secretary requires in this
instance. This is particularly significant since the Secretary cited
Respondent for its failure to have a training program for employees
exposed to fall hazards /see /item 6 /infra. /In the absence of any
evidence establishing hazards covered by subpart C, or any other part of
the construction standards, for which a safety program must be
established, this item must be vacated.

    _Citation 1 Item 3_

    29 CFR 1926.252(a): An enclosed chute of wood, or equivalent
    material, was not used where materials were dropped more than 20
    feet to points lying outside the exterior walls of the building(s):

    Jobsite: Cleaves Court Apartments

        An enclosed chute was not used when materials were thrown from
        the roof level to a dumpster located greater than 20 feet below
        the roof level.

The only evidence presented by the Secretary in support of this alleged
violation are the "admissions" of Mr. Dan Bullens, Respondent's
superintendent and an employee named Walsh; both of whom were
interviewed by the compliance officer. According to compliance officer
Steel, Mr. Bullens stated that there was no enclosed chute from the roof
to the waste dumpster located on the ground level as required by the
standard. Moreover, Mr. Walsh told Mr. Steel that on January 13, he
threw materials from the roof (Tr. 82). In addition, the roof level was
more than twenty feet above the top edge of the dumpster into which
debris was dropped (Tr. 86). A critical element missing from
complainant's presentation, however, is any evidence that employees were
in danger of being struck by falling materials. Thus, Complainant has
failed to establish a fundamental element; employee exposure to a
hazard, /see Turner Construction Co. /1987-1990 CCH OSHD ¶ 28,031;
/McCrory - Sumwalt Construction /1974-1975 CCH OSHD 19,552. In the
absence of any evidence of employee exposure to the alleged hazard, this
item must be vacated.

    _Citation 1 Item 4_

    29 CFR 1926.501(b)(4)(iii): Each employee on a walking/working
    surface were not protected from objects falling through holes,
    including skylights, which were not provided with covers.

    Jobsite: Cleaves Court Apartments, roof level:

        Employees were exposed to possible serious injury while walking
        and/or working on the roof where skylights were not provided
        with covers to prevent an employee from falling through the
        plexiglass skylight.

As set forth above, the standard cited herein requires that employees be
protected from /objects /falling through the skylights located at the
worksite. The descriptive language contained in the citation, however,
describes an alleged violation of 29 CFR 1926.501(b)(4)(ii); that is,
employees shall be protected from /tripping in or stepping into or
through skylights by covers. /It is clear from the descriptive language
contained in the citation, as well as the evidence elicited at the
hearing from the compliance officer, that the Secretary intended to cite
respondent for a violation of 29 CFR 1926.501(b)(4)(ii) rather than
(b)(4)(iii). Based upon the record, it is concluded that the parties
tried the issue of whether Respondent violated section
1926.501(b)(4)(ii) by consent. Accordingly, pursuant to Rule 15(b) of
the Federal Rules of Civil Procedure, citation item 4 is amended to
allege a violation of section 1926.501(b)(4)(ii). /National Realty and
Construction Co. v. OSHRC /489F2d 1257 (D.C. Cir 1973); /John and Ray
Carlstrom /6 BNA OSHC 2101(1978); /Rodney E. Fossett /7 BNA OSHC 1915(1979).

As with the other alleged violations, the only witness called by the
Secretary to establish this violation was the compliance officer, Mr.
Steel. Photographs depicting the skylights on January 14 were entered
into evidence without objection (Exhibits C-7, C-8). These photographs
were taken when no work was being performed at the worksite. Compliance
officer Steel testified that he was told by superintendent Bullens that
the roof conditions, including the skylights, were the same as in the
photographs on January 13. There is no evidence, however, that any
employee was working or walking in such proximity to the skylights that
they were exposed to the hazard of tripping or stepping into or through
the skylights. Once again the Secretary invites speculation that
employees must have been in close proximity to the skylights during
their normal work activity without providing any basis for arriving at
the conclusion. Because of the failure to present any percipient
witnesses to the conditions as they existed at the worksite, including
employee exposure on January 13, I am constrained to vacate this item.

    _Citation 1 Item 5_

    29 CFR 1926.501(b)(10): Each employee engaged in roofing activities
    on low sloped roofs with unprotected sides and edges, six feet or
    more above the lower levels, were not protected from falling by the
    use of a guardrail system, safety net system, or personal fall
    arrest system:

    Jobsite: Cleaves Court Apartments, roof level, rear of the building
    area.

The Secretary amended the descriptive language of this item at the
hearing to read as follows:

    On or about January 13, 1997, employees of this company were exposed
    to serious fall hazards while performing their work duties on the
    roof, where the use of a guardrail system, safety monitor or
    personal fall arrest system was not used to prevent a fall from the
    unprotected edge of the roof, greater than six (6) feet to the
    parking lot.

The Secretary asserts that Respondent's alleged failure to comply with
the aforesaid standard resulted in the tragic death of Respondent's
employee. As in the case of the other alleged violations, the Secretary
presented one witness in support of the allegation. Although the
witness, compliance officer Steel, was not present at the work site at
the time of the accident, he interviewed management personnel and
related the "admissions" made to him by those officials. Respondent
presented no witnesses or other evidence regarding this item.

The following facts have been gleaned from this sparse record. On
January 13, 1998, Respondent's employees were engaged in placing a new
roof on an apartment building located at Roxbury Massachusetts. It was a
slightly pitched flat roof, 57 feet 7 inches by 66 feet 33 inches (Tr.
37) and approximately 33 feet high (Stipulation #3). The roof also
extended over porches which were located along the length of the three
story building (Tr. 31, Ex C-1). Four of Respondent's employees were on
the roof installing insulation board over the plywood roofing materials
which was then covered with glue. Finally, sheet rubber was placed on
the glue. Employees Kulikowski and McManus were working at the edge of
the roof which extended over the porches applying the glue and rubber to
the roof surface. Respondent's foreman, Mr. Bebo, was working at another
part of the roof; however, he was not observing employees Kulikowski and
McManus standing at the roof edge. He heard a bang, turned around and
saw only Mr. McManus standing at the roof edge. He yelled for someone to
call an ambulance. The fourth person, Mr. Walsh, was cleaning up debris
at the time of the accident (Tr. 55-57). All of this information was
conveyed to Mr. Steel by Mr. Bebo and was admitted into evidence
pursuant to Rule 801(d)(2)(A) of the Federal Rules of Evidence.

Mr. Bebo also told compliance officer Steel that warning lines had been
placed on the roof but had been moved back from the edge approximately
six feet because they interfered with the work (Tr. 54 see Exh. C-6).
According to compliance officer Steel, he was told by management
representatives that the injured employee was working within one foot of
the roof edge (Tr. 47, 55). Respondent stipulated that no guardrails,
safety nets or personnel fall arrest systems were in use at the time of
the accident. Moreover, according to Mr. Steel, Respondent's
superintendent, Dan Bullens admitted that no safety monitor had been
designated or was used on the roof at the time of the accident (Tr. 51)
See 29 CFR 1926.502(h)(1). Although Mr. Bullens was not present at the
worksite at the time of the accident, his admission to Mr. Steel was
admitted into evidence pursuant to Rule 801(d)(2)(B) of the Federal
Rules of Evidence.

In order to establish that Respondent failed to comply with the cited
standard, the Secretary must prove that (1) the standard applies; (2)
the employer failed to comply with the terms of the standard; (3)
employees had access to the cited condition; (4) the Respondent knew, or
with the exercise of reasonable diligence, could have known of the
violative condition. Astra Pharmaceutical Products, Inc., 1981 CCH OSHC
¶ 25,578, /aff'd/ 681 F.2d 69 (1st. Cir. 1982); /Secretary of Labor v.
Gary Concrete Products, /15 BNA OSHC 1051, 1052, 1991-1993 CCH OSHD ¶
29,344 (1991). The burden of establishing these elements rests with the
Secretary of Labor. Moreover, the elements must be established by a
preponderance of the evidence /Armor Elevator Co. /1 OSHC 1409, 1973-
1974 OSHD ¶ 16,958 (1973). The Commission has defined "preponderance of
the evidence" as "that quantum of evidence which is sufficient to
convince the trier of fact that the facts as asserted by a proponent are
more probably true than false" /Ultimate Distrib Systems, Inc., /10 OSHC
1569, 1570 (1982). To carry that burden, the secretary relied
exclusively upon admissions made to the compliance officer by
Respondent's management representatives. These statements were admitted
pursuant to FRE Rule 801(d)(2)(A) and (B). Admissibility, however, does
not establish the trustworthiness or reliability of those statements
/see Regina Construction Co. /15 BNA OSHC 1044 (1991). In /Regina /the
Commission stated:

    Although admissions under rule 801(d)(2)(D) (employee statements),
    are not inherently reliable, there are several factors that make
    then likely to be trustworthy, including: (1) The declarant does not
    have time to realize his own self-interest or feel pressure from the
    employer against whom the statement is made; (2) the statement
    involves a matter of the declarant's work about which it can be
    assumed the declarant is well informed and not likely to speak
    carelessly; (3) the employer against whom the statement is made is
    expected to have access to evidence which explains or rebuts the
    matter asserted. 4D. Louisell & C. Mueller, Federal Evidence § 426
    (1980 & Supp. 1990).

/Id /at 1048

Based upon the record in this case as a whole, certain inferences can be
made regarding the statement made to the compliance officer. First,
based upon the nature of the admissions, there is no basis to conclude
that the management representatives were concerned about their own self
interest or felt pressure from their employer. Moreover, it is clear
that Respondent had an ample opportunity to rebut the information
contained in the statements. However, an out of court statement
"inherently has less probative value than would the employee's own
testimony and is not necessarily entitled to dispositive weight"
/Continental Electric Co., /13 BNA OSHC 2153,2155, N.6 (1989). The
reason is obvious; credibility findings are critical in evaluating
conflicting or inconsistent statements. In /Morrison-Knudsen, Inc., /13
BNA OSHC at 1124, the Commission stated:

    "When an out-of-court statement is introduced, the trier of fact has
    no opportunity to assess the credibility of the person who made the
    statement and must therefore allow for the possibility that the
    statement is exaggerated, incomplete, taken out of context, or even
    false. Also, neither the other party nor the judge has a chance to
    cross-examine the person who made the statement. The only person
    able to evaluate the statement's credibility is the person who heard
    the statement and is testifying to its contents. These
    considerations suggest that out-of-court statements can not always
    be taken at face value."

Moreover, there is no indication that the individuals who gave the
statements were unavailable to testify.

It is recognized, however, that an admission against self interest made
by management personnel to a compliance officer is strong evidence, as
in this case, that Respondent failed to comply with the aforesaid
standard as alleged. Thus, there is a sufficient basis in the record for
concluding that the facts asserted by the Complainant are more probably
true than false. See Ultimate Distrib. Systems Inc. supra. I am
compelled to reach this conclusion because of Respondent's failure to
shed any light on the conditions at the worksite or the activities of
the employees involved at the time of the tragic accident. As stated by
the First Circuit Court of Appeals in /Astra Pharmaceutical Products
Inc. /681F2d at 74:

    While the Secretary had the burden of proving its case by
    substantial evidence, what constitutes substantial evidence varies
    with the circumstances. The "evidence a reasonable mind might accept
    as adequate to support a conclusion" is surely less in a case like
    this is where it stands entirely unrebutted in the record by a party
    having full possession of all the facts, than in a case where there
    is contrary evidence to detract from its weight. /See, e.g., Noranda
    Aluminum, Inc. v. OSHRC, /593 F.2d 811, 814 & n.5 (8th Cir. 1979)
    (decision to leave Secretary's case unrebutted "a legitimate but
    always dangerous defense tactic in litigation"); /Stephenson
    Enterprises, Inc. v. Marshall, /578 F.2d 1021, 1026 (5th Cir. 1978).
    Thus, thin as the underlying evidence was, we find it sufficient in
    these circumstances.

For the foregoing reasons, the violation alleged is affirmed.
Furthermore, in view of the tragic consequences at the worksite, the
violation is found to be serious within the meaning of the statute. The
Secretary proposes a penalty in the amount of $6,300 for the violation.
This proposal is based upon a high gravity factor (death of an employee)
with a 10% reduction from the maximum penalty of $7,000 due to
Respondent's history of no prior violations. For these reasons the
proposed penalty in the amount of $6,300 is assessed for the violation.

    _Citation 1 Item 6_

    29 CFR 1926.503(a)(1): The employer shall provide a training program
    for each employee who might be exposed to fall hazards. The program
    shall enable each employee to recognize the hazards of falling and
    shall train each employee in the procedures to be followed in order
    to minimize these hazards:

    Jobsite: Cleaves Court Apartments, roof level, rear of the building area

    On or about January 13, 1997, employees were not adequately
    instructed and trained in the recognition and avoidance of unsafe
    conditions, with regards to working on a roof and the fall hazards
    to which they may be exposed, and the regulations applicable to that
    type of work environment.

According to compliance officer Steel, management representatives
admitted that the company did not possess a training program for
employees exposed to fall hazards nor had any of Respondent's employees
been trained in the recognition of fall hazards and the procedures to be
followed to minimize fall hazards (Tr. 37). Respondent failed to present
any evidence to rebut or explain these admissions. Accordingly, for the
reasons set forth at citation item 5 supra, this item is affirmed as a
serious violation. Moreover, for the reasons set forth above, the
proposed penalty in the amount of $4,500 is assessed for the violation.

_*Findings of Fact*_

All findings of fact relevant and necessary to a determination of the
contested issues have been found specially and appear in the decision
above. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed
findings of fact that are inconsistent with this decision are denied.

*_Conclusions of Law_*

1. Respondent is engaged in a business affecting commerce and has
employees within the meaning of section 3(5) of the act.

2. Respondent, at all times material to this proceeding, was subject to
the requirements of the Act and the standards promulgated thereunder.
The Commission has jurisdiction of the parties and the subject matter of
this proceeding.

3. At the time and place alleged, Respondent was not in violation of
1926.20(b)(1) (citation 1 item 1).

4. At the time and place alleged, Respondent was not in violation of 29
CFR 1926.252(a) (citation 1 item 3).

5. At the time and place alleged, Respondent was not in violation of 29
CFR 1926.501(b)(4)(iii) (citation 1 item 4).

6. At the time and place alleged, Respondent was in violation of 29 CFR
1926.501(b)(ii) and said violation was serious within the meaning of the
Act (citation 1 item 5).

7. At the time and place alleged, Respondent was in violation of 29 CFR
1926.503(a)(1) and said violation was serious within the meaning of the
Act (citation 1 item 6).

*_Order_*

1. Serious citation 1 item 1 is *VACATED.*

2. Serious citation 1 item 2 is *WITHDRAWN.*

3. Serious citation 1 item 3 is *VACATED.*

4. Serious citation 1 item 4 is *VACATED.*

5. Serious citation 1 item 5 is *affirmed and a penalty in the amount of
$6,300 is assessed thereto.*

6. Serious citation 1 item 6 is *affirmed and a penalty in the amount of
$4,500 is assessed thereto.*

 

/s/________________________
ROBERT A. YETMAN
Judge, OSHRC

Dated: July 23, 1998
Boston, MA

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[1] The judge affirmed Item 5, which alleged that Respondent failed to
protect its employees from fall hazards; and Item 6, which alleged that
it failed to provide fall protection training. He vacated Item 1, which
alleged that Respondent failed to implement a safety program; Item 3,
which alleged that it failed to use an enclosed chute when throwing
materials from the roof; and Item 4, which alleged that it failed to
cover skylights in the surface of the roof. The Secretary withdrew Item
2, which alleged that Respondent's employees did not wear hardhats when
required to do so.

[2] The cited standard provides:

    *§ 1926.20 General safety and health provisions.*

    * * *

    (b) /Accident prevention responsibilities. /(1) It shall be the
    responsibility of the employer to initiate and maintain such
    programs as may be necessary to comply with this part.

[3] As noted, the Secretary alleged a separate fall protection training
violation in Item 6, which was affirmed by the judge and is not on
review before the Commission. See n.1, supra.

[4] Barrett A. Metzler is Respondent's non-attorney representative in
these proceedings.

[5] Chairman Rogers would emphasize that the holding in this case should
not be construed as in any way endorsing the employer's general lack of
effort to create and maintain a safety program.

[6] Although motions to amend are not uncommon, we note the timing of
the Secretary's motion here. She filed this motion with the Commission
on November 13, 1998, almost three months after the Commission directed
this case for review on August 31, 1998. The motion followed the filing
of a statement by the employer's representative in which he admitted
that he was unable to contact the employer and, therefore, declined to
file a brief on review.

[7] Rule 15(b) provides in relevant part:

    (b) *Amendments to Conform to the Evidence. *When issues not raised
    by the pleadings are tried by express or implied consent of the
    parties, they shall be treated in all respects as if they had been
    raised in the pleadings. Such amendment of the pleadings as may be
    necessary to cause them to conform to the evidence and to raise
    these issues may be made upon motion of any party at any time, even
    after judgment; but failure so to amend does not affect the result
    of the trial of these issues.

[8] This standard provides:

    *§ 1926.21 Safety training and education.*

    * * *

    (b) /Employer responsibility./ * * * (2) 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.

[9] The Secretary alleged in Item 3 that Respondent violated §
1926.252(a), which provides in relevant part:

    *§ 1926.252 Disposal of waste materials.*

    (a) Whenever materials are dropped more than 20 feet to any point
    lying outside the exterior walls of the building, an enclosed chute
    of wood, or equivalent material, shall be used.

Item 3 was tried at the hearing and briefed by both parties. The judge
vacated it because he found no evidence of exposure, and the Secretary
did not petition for review of his decision to vacate.

[10] The Secretary alleged in Item 2 that Respondent violated §
1926.100(a), which provides in relevant part:

    *§ 1926.100 Head protection.*

    (a) Employees working in areas where there is a possible danger of
    head injury from impact, or from falling or flying objects, or from
    electrical shock and burns, shall be protected by protective helmets.

The Secretary withdrew Item 2 at the hearing without explanation.

[11] This standard provides:

    *§ 1926.1060 Training requirements.*

    * * *

    (a) The employer shall provide a training program for each employee
    using ladders and stairways, as necessary. The program shall enable
    each employee to recognize hazards related to ladders and stairways,
    and shall train each employee in the procedures to be followed to
    minimize these hazards.

[12] We note that the citation was not artfully drafted and neither
explicitly refers to the glass skylight, nor cites the appropriate
subsection of the standard. /See /n.13, /infra. /Nonetheless, we
interpret the citation to include the glass skylight. At the hearing, CO
Steel discussed the location of the glass skylight near the hatchway and
included it in his sketch of the roof. The Secretary introduced a
photograph of the glass skylight and hatchway. The employer did not
question Steel's testimony describing the hazard, which did not specify
which of the skylights was the basis for Item 4. The employer did not
object to the introduction of any of this evidence and did not challenge
the relevance of such evidence in its motion to dismiss made during the
hearing. Additionally, Respondent's posthearing brief describes one of
Complainant's photographic exhibits as depicting certain individuals
"near two of the skylights," indicating that it was aware that there was
another skylight that was not included in the photograph. Moreover, the
Secretary raised explicit arguments about exposure to the hazard posed
by the glass skylight in her posthearing brief, and Respondent did not
request an opportunity to respond.

[13] The Secretary originally cited Lancaster for a violation of 29
C.F.R. § 1926.501(b)(4)(iii), which provides that "[e]ach employee on a
walking/working surface shall be protected from objects falling through
holes (including skylights) by covers." The judge, however, found that
the language of the citation describes an alleged hazard of /"tripping
in or stepping into or through skylights."/ (Emphasis in original). He
amended the citation sua sponte to allege a violation of 29 C.F.R. §
1926.501(b)(4)(ii), which requires that "[e]ach employee on a
walking/working surface shall be protected from tripping in or stepping
into or through holes (including skylights) by covers," and he held that
the parties tried by consent the issue of whether Respondent violated
this section. Respondent has not challenged the amendment.

We agree with the judge that the hazard is employees falling or tripping
into the skylights. The record clearly supports this notion. In addition
to the language of the citation, CO Steel testified that an employee
could trip, slip, or fall into a skylight. In its posthearing brief, the
employer disputed that objects could fall through the skylights, but
acknowledged the possibility that employees could fall through them.

We note that § 1926.501(b)(4)(ii), amended to by the judge, refers to
employees "tripping in or stepping into or through holes," whereas §
1926.501(b)(4)(i) refers to employees "falling through holes." Here, the
skylight openings appear to be large enough for an employee to fall
through to the apartment below. Moreover, the Secretary relied on the
language of § 1926.501(b)(4)(i) in her posthearing brief, and Respondent
did not object. Thus, while the judge correctly identified the hazard at
issue, we correct the judge's amendment to allege a violation of 29
C.F.R. § 1926.501(b)(4)(i).

[14] Respondent argues in its posthearing brief, upon which it relies
here, that those portions of CO Steel's testimony concerning statements
made to him by others are inadmissible hearsay. Judge Yetman's decision
contains a detailed and well reasoned analysis of the evidentiary issues
raised. The judge concluded, based on the relevant subsections of
Federal Rule of Evidence 801(d)(2), that the testimony was not hearsay
and was admissible. He also concluded that these unrebutted statements
were sufficient to affirm the fall protection violation alleged in Item
5. The statements on which we rely in affirming Item 4 are also not
hearsay and are admissible. See Fed. R. Evid. 801(d)(2)(A) and (D).
Although the reliability of these particular statements was not
specifically considered by the judge, we conclude that his findings
regarding CO Steel's other testimony would apply to these similarly
unrebutted statements as well.

[15] According to compliance officer Steel, no employees were working on
the roof on January 14, 1997.

[16] Although not addressed by the Secretary at the hearing or in her
post hearing brief, the record supports the conclusion that roofing
activities fall within the meaning of construction. See 29 CFR
1910.12(b); /Tilo Company Inc. /1971-1973 CCH OSHD ¶ 15,678.

[17] This testimony was admitted into evidence pursuant to Rule
801(d)(2)(A) Fed. Rules of Ev.

[18] There is no requirement that the programs required by the standard
must be in writing see generally Subpart C 29 CFR 1926.20 et seq.

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