“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16162 ASPLUNDH TREE EXPERT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 14, 1978DECISIONBefore CLEARY, Chairman; BARNAKO andCOTTINE, Commissioners.BARNAKO, Commissioner:??????????? TheSecretary of Labor cited Respondent (Asplundh) for allegedly violating theconstruction safety standard at 29 C.F.R. 1926.556(b)(2)(v) because one of itsemployees failed to wear a body belt while working in an aerial lift basket.Prior to trial, and over Asplundh?s objection, Judge Vernon Riehl permitted theSecretary to amend the citation to allege that the same set of facts violatedthe general industry standard at 29 C.F.R. 1910.67(c)(2)(v)[1] . Judge Riehl affirmed thecitation as amended. The issues on review are whether the Judge erred inallowing the amendment, and whether the Judge properly rejected Asplundh?sargument that the violation resulted from unpreventable employee misconduct. Weagree that the Judge properly allowed the amendment, but, by a divided vote,reverse and remand for the Judge to make further findings and reconsider hisdecision on the preventability question.??????????? OSHAcompliance officer Strobach observed Asplundh?s foreman Anderson using anaerial lift to trim trees away from utility lines on a street near theUniversity of Missouri campus in Rolla, Missouri. Anderson, who was workingfrom a four foot high square fiberglass bucket that was approximately 25 feetin the air, was using a pole with a rotating saw at the end. At times he wasreaching out of the bucket. Strobach thought that Anderson did not have asafety belt on, but he was not certain. After Strobach identified himself, anemployee yelled to Anderson, who was in charge of a four man crew, to comedown. When the basket of the lift came down. Strobach observed that although abelt was in the basket, Anderson was not wearing one. Strobach asked Andersonwhether he had worn his body belt, to which, according to Strobach, Andersonreplied, ?No. I never wear it.? On cross examination, Strobach stated he was?pretty sure? he asked Anderson if it was company policy to wear safety belts,and he recalled that Anderson was aware of such a policy. Strobach testifiedthat he did not probe why Anderson violated company policy.??????????? Andersontestified that on the day of the cited violation the company truck was parkedon a narrow two lane street near the entrance of the university and blocked onelane of traffic. He stated that he was hurrying to finish cutting the last fewtrees because university classes were getting out for lunch break and thetraffic flow was increasing. Anderson said that he had his safety belt on formost trees on this job but that in hurrying to finish the last few trees heforgot to put on the belt. He stated that it took approximately 15 seconds toput on the safety belt, that the belt did not impede him on the job, and thatthe company was not pressuring him to get the job done. Anderson testified thathe was asked by Strobach whether he had his safety belt on and he answered no,saying he was not wearing it at the time; he denied saying to Strobach that henever wore his belt.??????????? Andersonstated that he usually wore a safety belt because it is strict company policyto require belt usage. When he was a foreman, Anderson instructed his men to wearsafety belts, and he never authorized anyone not to use belts. On directexamination Anderson testified that as foreman he had caught men without a beltin very rare instances and ?chewed? them out for not wearing it. However, oncross examination, he said that he had seen men working without safety beltsonly one or two times in his four year experience with the company, but that hewas not in charge when these incidents occurred. At first Anderson said thatthese employees were given time off for not wearing belts, but he later statedthat he was not sure what happened to these men, and that he did not know ofany employee being disciplined or demoted for not wearing a belt.??????????? Ashworth,a tree trimmer with one year?s experience, said that he overheard Anderson?sconversation with Strobach at a distance of three to five feet and could heareverything clearly, although it was possible that conversation occurred betweenthe two when he was not present. He heard Strobach ask Anderson whether he worea belt, to which Anderson said no. Ashworth did not hear Anderson say he neverwore a belt. Ashworth said that except for the cited violation he had neverseen Anderson or any other Asplundh employee fail to wear a safety belt, andthat on the date of the violation he saw Anderson wear his belt at times.??????????? RobertHerder, who has served as Asplundh?s vice president for safety since 1955,stated that his company requires the use of body belts by employees in aeriallifts. This policy is outlined in Asplundh?s foreman?s manual, which is sent toevery crew in the field, a safety poster and cover letter, which is distributedmonthly to the general foreman for each crew, a safety ?do and don?t? list,which is mounted on every lift in the company and is discussed during safetymeetings, and a safety instruction booklet, which is given to every employee.Asplundh also requires every foreman to conduct weekly safety meetings, whichare about 15 minutes long. Herder testified that employees who persisted in notusing the body belt would be let go, although nobody had been discharged in thepast for this reason. Anderson, however, had been demoted from his job asforeman for violating the body belt policy.??????????? Herdertestified that Asplundh?s safety program predated OSHA, no employee had everbeen injured by falling from buckets, and Anderson had never given him anytrouble before the citation. It was Herder?s policy to write memos to thegeneral foreman and the particular foreman involved when he is advised ofsafety violations. However, Herder has never issued written memos regardingbody belt violations, since the only way he has known of such violations was bypersonally observing them. He dealt with those situations by means of oralreprimands.??????????? AllenPewitt, a general foreman for Asplundh with 15 years? experience, wasAnderson?s superior. Pewitt demoted Anderson from foreman to tree trimmer,which included a cut in pay, because of the incident which led to the citation.Pewitt stated that he visits his crews about twice a month, that he had neverseen Anderson fail to wear a body belt, and that he had never known Anderson toviolate company rules. Pewitt said that it is a company rule to give a sternoral or written reprimand for the first belt violation and to discharge an employeefor the second violation. While he found three to five violations of the beltrule over a period of years, Pewitt stated that he has never caught anyonetwice.??????????? Beforereaching the merits, Judge Riehl ruled that the Secretary?s amendment of thecitation was proper. He noted that there was no prejudice resulting from theamendment as the wording of the two standards is identical and the factualallegations of the citation remained unchanged. Asplundh continues to argue onreview that the amendment should not have been allowed, relying on anunreviewed, and therefore non-precedential, administrative law judge?s decisionin Keibler Industries, Inc., 73 OSAHRC 30\/F12, 1 BNA OSHC 3074, 1971?73CCH OSHD para. 16,234 (No. 1689, 1973). We conclude that the Judge properlydecided the issue for the reasons he assigned. Usery v. Marquette CementManufacturing Co., 568 F.2d 902 (2d Cir. 1977); Southern ColoradoPrestress Company, 76 OSAHRC 1\u215e, 4 BNA OSHC 1638, 1976?77 CCH OSHDpara. 21,034 (No. 3035, 1976), petition for review filed, No. 76?1974(10th Cir. Oct. 26, 1976).??????????? Asto the merits, the Judge concluded that Asplundh had a comprehensive safetyprogram ?on paper? but that in practice the program was inadequately enforced.In reaching this conclusion, the Judge noted that there was conflictingevidence whether Anderson had told Strobach that he never wore a belt, and hemade a specific credibility finding that Anderson did make the disputedstatement. The Judge observed that when a foreman knowingly violates a companypolicy, it is strong evidence that implementation of that policy is lax, citingNational Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1267, n.38 (D. C. Cir. 1973). Judge Riehl also noted that Herder, the company?svice-president for safety, had seen employees not wearing belts, and heconcluded that this indicated that violations of the rule occurred on aconsistent basis because employees would be more conscious of following workand safety rules ?when their boss is on the job.? Additionally, the Judge citedthe facts that Herder had never issued a written memo and that no employee hadever been discharged for body belt violations as evidence of lax enforcement ofsafety rules.??????????? Asplundhargues that Judge Riehl?s finding its safety program was inadequate is contraryto the preponderance of the evidence. Asplundh contends that the Judge did notconsider the entire record in reaching his decision, pointing out that theJudge did not mention or discuss evidence of favorable aspects of its safetyprogram. Asplundh also asserts that Judge Riehl took evidence out of context tocreate a meaning contrary to the record. It points out that Judge Riehl in hissummation of facts stated that Herder admitted he never issued a written memoregarding safety violations when in fact Herder said that he had never issued amemo concerning body belt violations. Asplundh contends that Judge Riehlerroneously concluded that ?apparently the (safety belt) violations were on aconsistent basis? when the testimony of Herder, Anderson and Pewitt indicatedthat violations were infrequent. Another error assigned by Asplundh is thatJudge Riehl failed to indicate why he found Strobach?s testimony more crediblethan Anderson?s and Ashworth?s concerning whether Anderson said he never wearssafety belts, and that Judge Riehl in fact ignored Ashworth?s testimony.Asplundh concludes that the record compels the finding that it has done all itcould to require use of the body belt, and that the violation therefore wasunpreventable.??????????? InOcean Electric Corp., 75 OSAHRC 6\/C14, 3 BNA OSHC 1705, 1975?76 CCH OSHDpara. 20,167 (No. 5811, 1975), opinion withdrawn and rehearing granted,No. 76?1060 (4th Cir., Oct. 26, 1977), the Commission held that, although an employeris normally responsible for violations committed by its supervisory personnel,the employer can defend by showing that it took all necessary precautions toprevent the occurrence of the violation. The employer must show that itestablished work rules designed to prevent the violation, adequatelycommunicated these rules to its employees, took steps to discover if violationsof these rules occurred, and effectively enforced the rules when violationswere discovered. See also Mountain States Telephone & Telegraph Co.,78 OSAHRC 30\/A2, 6 BNA OSHC 1504, 1978 CCH OSHD para. 22,668 (No. 13266, 1978).??????????? CommissionerCottine and I agree with Asplundh?s contention that the Judge?s decisionconcerning the effectiveness of Asplundh?s safety program is inadequate. TheCommission will normally defer to a Judge?s credibility findings.[2] The Judge, however, mustfairly consider the entire record and must adequately explain his findings.[3] It is not sufficient forthe Judge to merely state his ultimate findings and conclusions; he must setforth sufficiently detailed findings and reasons to assist the Commission infulfilling its role as the ultimate finder of fact.[4]??????????? Ina case where the evidence permits only one result, the Commission can make thenecessary findings without the Judge?s assistance.[5] But this is not such acase. The critical issue is whether Asplundh effectively enforced its rulerequiring the use of body belts. The testimony of Herder, Pewitt, and Ashworthtends to indicate that violations of this rule were infrequent and never by thesame employee, and that the few violations which were discovered[6] were met with verbalreprimands. Although no further disciplinary steps had ever been taken, if theviolations were indeed as infrequent as Asplundh?s witnesses claimed, then theneed for more drastic discipline did not arise, and the failure to take furtherdisciplinary steps does not reflect adversely on Asplundh?s safety program.??????????? Theonly evidence tending to show that violations of the rule occurred frequentlywas Strobach?s testimony that Anderson told him he never wore his body belt.Judge Riehl states that Strobach was a more credible witness than Anderson, andhe therefore finds that Anderson did make the statement. But the Judge does noteven mention the testimony of Ashworth, who said that he did not hear Andersonmake the statement and that it was Anderson?s consistent practice to use hisbelt, and Pewitt, who testified that he had never seen Anderson without hisbelt, and had never known Anderson to violate company rules. Moreover, theJudge did not consider whether the fact Strobach was a credible witnessnecessarily meant that his recitation of his conversation with Andersonrepresented an accurate picture of Anderson?s practices. Even though Strobachcould testify as to what Anderson purportedly told him (Fed. R. Evid.801(d)(2)), there is always the possibility that one party to a conversationwill misunderstand statements made by the other. Thus, even if Strobachhonestly believed that he was accurately relating what Anderson told him, therenevertheless exists the possibility that Strobach misunderstood what Andersonsaid. The possibility of such a misunderstanding is enhanced by certaincircumstances present in this case: the statement was brief, was not responsiveto the question Anderson was asked, and Strobach did not ask for nor didAnderson offer any further explanation.??????????? Inview of the Judge?s failure to consider the entire record, we do not accept theJudge?s conclusion that Asplundh?s safety program was inadequate. We cannot,however, resolve the issue without specific findings by the Judge concerningwhether Ashworth, Pewitt, and Herder were credible witnesses. We thereforeremand the case and instruct the Judge to make specific findings on thequestion whether violations of Asplundh?s body belt rule were in fact asinfrequent as claimed by Ashworth, Pewitt, and Herder, and to evaluateStrobach?s testimony in light of the testimony of these other witnesses. TheJudge should then reconsider whether Asplundh?s safety program was adequate.??????????? Accordingly,it is ORDERED that the Judge?s decision is set aside and the case is remandedfor further proceedings consistent with this decision.?FOR THE COMMISSION:RAY H. DARLING, JR.EXECUTIVE SECRETARYDATE: SEP 14, 1978?CLEARY, Chairman, DISSENTING:??????????? Irespectfully dissent from the majority action in remanding this case. Themajority requests a further recitation of the Judge?s reasons for finding thatthe safety program of the respondent was not effective, and a furtherevaluation of witnesses? testimony. In my opinion the Judge in this case hasmade a difficult value judgment regarding conflicting testimony which issupported by the record. I do not see that it would be profitable to require alaborious review of the testimony of various witnesses. The testimony in thecase shows that the respondent?s employee was not wearing a body belt at thetime of the inspection. This fact alone lends credibility to the finding on thedisputed question whether the witness said he never wore it. It is alsoevidence of an ineffective safety program. Other testimony would attest to theadequacy of the respondent?s safety program, but the Judge?s findings on theseissues were favorable to Asplundh, and I am satisfied the Judge properlyevaluated this testimony. The inference contained in the majority opinion isthat they might have decided the case the other way on the facts, but theprimary responsibility to evaluate witnesses? testimony reposes in the Judge.Moreover, in assessing the credibility of the witnesses Strobach, Anderson,Ashworth and Pewitt, it is implicit that Judge Riehl considered the usualcriteria of narrative, perception and memory. I would affirm the Judge.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16162 ASPLUNDH TREE EXPERT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 22, 1976DECISION AND ORDERAPPEARANCES:JOHNB. RENICK, Esquire, U. S. Department of Labor, Office of the Solicitor, KansasCity, Missouri, For the Complainant\u00a0STEVENR. SEMLER, Esquire, Zimmerman and Obadal, Washington, D. C., For the Respondent?STATEMENT OF CASEVernon Riehl, Judge, OSHRC??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 contesting a citation issued by the complainant against therespondent under the authority vested in the complainant by section 9(a) ofthat Act. The citation alleged that an inspection of a workplace under theoperation and control of the respondent revealed the existence of workplaceconditions that violated section 5(a)(2) of the Act for the reason that theseconditions failed to comply with certain occupational safety and healthstandards promulgated by the Secretary of Labor pursuant to section 6 thereof.??????????? Thecitation alleges that the violations resulted from a failure to comply withstandards promulgated by publication in the Federal Register.??????????? Adescription of the alleged violations contained in said citation states:? CITATIONNUMBER 1, NONSERIOUS VIOLATIONItem2, 29 CFR 1926.556(b)(2)(v)?Theoperator working in the aerial lift basket was not wearing his body belt.??????????? Atthe commencement of the hearing, the parties stipulated the following facts:that the Asplundh Tree Expert Company is a Pennsylvania Corporation with its homeoffice in Willow Grove, Pennsylvania; that the company has over 100 employeesand operates in 42 states, and that it is, therefore, in a business affectingcommerce; that the company owns the trim lift truck referred to in thecomplainant?s citation; that there are roughly 6,000 persons in the employ ofthe respondent company; that the affected employees are not represented by anylabor organization; that they have received copies of the citation in the case,and that they have received copies of the notice of contest as well has copiesof the notice of hearing.??????????? Thecomplainant amended his original complaint by deleting item 1, of citationnumber 1 (five gallon gas can) leaving only item 2, of citation number 1, incontest. The amount of the proposed penalty was not in contest.??????????? Therespondent moved to dismiss the amended complaint on the grounds of lack ofjurisdiction of the Commission for the reason that item 2, of citation number1, was originally cited as a violation of 1926.556(b)(2)(v). This was amendedto allege a violation of 29 CFR 1910.67(c)(2)(v). The original citation 1926.556(b)(2)(v) alleges that respondent?s operator, working in the aerial liftbasket, was not wearing his body belt. The complaint and the amended complaintboth allege the same fact but with the different standard numbers. Respondenthas stated that there is no prejudice to him insofar as the facts being thesame on the citation, complaint and amended complaint. There is no substantialdeviation so as to mislead him (T. 5). Both standards cited are exactly thesame. The amended complaint in paragraph VI states that the citation is amendedto conform to the allegations of the complaint. It is complainant?s contentionthat the amendment goes to the citation itself. Complainant has cited Secretaryv. Park Construction Company, 17 OSHRC 343 (1975) to sustain its position.??????????? Respondent?smotion to suppress was overruled and the cause proceeded.??????????? Itis our ruling that there is no prejudice to respondent as the facts remain thesame regardless of the standard cited. Respondent had to prepare the samedefense for the exact factual situation (which was known to it) on either theoriginal complaint or the amended complaint.??????????? OnNovember 12, 1975, a compliance officer of OSHA inspected a jobsite ofrespondent and found one man working in the basket of a vehicle-mounted aeriallift approximately 20 to 25 feet in the air (pages 162, 163 of respondent?sexhibit 1).??????????? Atthis time Mr. Herbert Anderson, foreman of respondent?s crew, had the basketlowered and talked to the compliance officer. The compliance officerspecifically recalled in his testimony that Anderson told him he never wore abelt while working. Anderson denied making such a statement. We believe thecompliance officer?s testimony to be more credible in that Anderson did makethe statement (T. 19).??????????? Later,Anderson was demoted from foreman to trimmer by the general foreman, Mr. AllenPewitt, after the respondent received the citation issued in this cause.??????????? Respondenthad a comprehensive safety program on paper (exhibits R?1 through R?8) whichinstructed employees that they were to wear body belts while working from thebasket of an aerial device such as the one used on this particular job at thetime of inspection.??????????? Theproblem is that this program never quite left the paper.??????????? Mr.Robert Herder, respondent?s vice-president in charge of safety, testified as tothe respondent?s safety program. He stated that when he gets written reports ofemployees violating their safety policy, he issues a written memo to thegeneral foreman specifying that such violations must be corrected or theemployees will be terminated. Mr. Herder admitted that he had never issued sucha memo and that no employee had ever been discharged for failure to wear a bodybelt while working from a basket.??????????? Thecorporate vice-president for safety had himself been on a number of jobs andfound employees not wearing their belts. It would seem that the employees wouldbe more conscious of following work and safety rules when their boss is on thejob, and this lends credibility to the fact that apparently the violations wereon a consistent basis.??????????? Whena foreman knowingly violates a company policy, it is strong evidence thatimplementation of that policy has been lax. (National Realty andConstruction Company, Inc., v. OSHRC, 489 F.2d 1257, 1267, footnote 38)??????????? Tofurther illustrate the fact of previous transgressions and lack ofimplementation of the safety program, on page 71 of the transcript it isindicated that the foreman had caught his men working without belts and chewedthem out. On page 73, he claimed he did not know of any instance when membersof his crew were working from the baskets with belts on. On page 74, he saidthat he had seen employees working without belts but never while he was incharge. Also, he stated that a couple of times employees were disciplined forworking from the baskets without belts. On page 75, in response to a directquestion as to whether he was aware of anyone having been disciplined for notwearing a belt, he answered ?no?. In summation, there is no question but thatthe respondent has gone to great lengths in providing safety equipment and avery thorough safety policy on paper, in fact, a much more comprehensive policythan we have previously seen.??????????? Unfortunately,the actual carrying through down to the working level has not functioned as itshould and this indicates a certain degree of laxity on the part of respondentin enforcing the standards. There is no other course but for us to affirm thecitation.FINDINGS OF FACT??????????? 1.At the time of the inspection of respondent?s workplace, by a complianceofficer of OSHA on November 12, 1975, there were four of respondent?s employeeson a tree trimming job. The compliance officer found respondent?s employee,Herbert Anderson, in a vehicle-mounted aerial lift approximately 25 feet in theair (respondent?s exhibit 1) in a basket without wearing a body belt.??????????? 2.After alighting from the basket, Mr. Herbert told the compliance officer thathe ?never wore a belt?.??????????? 3.Respondent had a safety program which included excellent written material(exhibits R?1 through R?8) which instructed employees that they were to wearbody belts while working from the basket of an aerial device such as the onefound by the compliance officer on the date of inspection.??????????? 4.Respondent?s safety program, while excellent on paper, lacked implementation atthe supervisory level and employees were permitted to work without wearingsafety belts.??????????? 5.Mr. Anderson, respondent?s employee found working in the basket without a bodybelt, was the foreman of respondent?s crew.CONCLUSIONS OF LAW??????????? 1.At all times material hereto, respondent was an employer within the meaning ofsection 3 of the Occupational Safety and Health Act of 1970.??????????? 2.Jurisdiction of this proceeding is conferred upon the Occupational Safety andHealth Review Commission by section 10(c) of the Act.??????????? 3.At the time of inspection, respondent?s employee, in violation of item 2,citation 1, was working in the basket of a vehicle-mounted aerial device withtwo hinged boom sections without wearing a body belt.??????????? 4.Respondent violated section 5(a)(2) of the Act by failing to comply with theoccupational safety and health standard promulgated under the Act, 29 CFR1910.67(c)(2)(v).??????????? 5.The penalty of $45 is appropriate for the aforesaid violation.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDEREDthat item 2 of the citation for nonserious violation is affirmed and a penaltyof $45 is hereby assessed for said violation.?Vernon RiehlJudge, OSHRCDate: July 22, 1976[1] The two standardsare identically worded and provide:Abody belt shall be worn and a lanyard attached to the boom or basket whenworking from an aerial lift.[2] OklandConstruction Co., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975?76 CCH OSHD para.20,441 (No. 3395, 1976).[3] C. Kaufman,Inc., 78 OSAHRC 3\/C1 6 BNA OSHC 1295, 1977?78 CCH OSHD para. 22,481 (No.14249, 1978).[4] P & Z Co.,77 OSAHRC 211\/F5, 6 BNA OSHC 1189, 1977?78 CCH OSHD para. 22,413 (No. 76?431,1977).[5] C. Kaufman,Inc., supra.[6] The Judgeconcluded that the fact supervisors had discovered violations of the rule wasitself an indication the rule was inadequately enforced because employees wouldbe more likely to comply with safety rules when supervisors were present. Asnoted above, however, the Commission has held that an adequate safety programincludes efforts to discover whether violations of work rules have occurred.Thus, the fact that supervisors discovered infrequent violations of the bodybelt rule supports, rather than discredits, Asplundh?s argument that its safetyprogram was effective.”