“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16162 ASPLUNDH TREE EXPERT CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 31, 1979DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Vernon Riehl, issued in response to aCommission remand order of September 14, 1978, is before the Commission forreview under ?\u00a012(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651?678 (?the Act?). At issue is an amended citation alleging thatthe Respondent, Asplundh Tree Expert Co. (?Asplundh?), violated the Act byfailing to comply with the standard at 29 C.F.R. ?\u00a01910.67(c)(2)(v)[1] in that one of itsemployees, crew foreman Anderson, failed to wear a body belt while working froman aerial lift. Asplundh concedes that Anderson failed to wear a body belt, asalleged, but defends on the ground that this failure was the result ofunpreventable employee misconduct. In both his original decision and thedecision now before us, Judge Riehl concluded that Asplundh had not establishedits affirmative defense. Accordingly, he affirmed the citation.??????????? Inour prior decision, we remanded the case to Judge Riehl for specificcredibility findings regarding whether violations of Asphlundh?s body belt rulewere in fact as infrequent as claimed by three of the Respondent?s witnesses.The judge was also instructed to re-evaluate, in the context of the testimonyof these witnesses, his finding that Anderson stated to the compliance officerthat he (Anderson) never used a body belt. Additionally, the judge wasinstructed to reconsider the adequacy of Asplundh?s safety program. AsplundhTree Expert Co., 78 OSAHRC 77\/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ? 23,033(No. 16162, 1978).??????????? JudgeRiehl subsequently issued his decision on remand, reaffirming his originaldecision ?in all respects.? He again concluded that the Respondent did notsustain its defense of unpreventable employee misconduct and again held thatAsplundh violated section 1910.67(c)(2)(v). Asplundh filed a petition fordiscretionary review and review was directed on all issues raised by thepetition. In particular, we must determine whether the judge considered theentire record in concluding that the Respondent?s safety program wasinadequate, whether the judge erred in concluding that Asplundh failed toestablish effective enforcement of its safety program, and whether the judgeerred in rejecting Asplundh?s defense of unpreventable employee misconduct.I??????????? 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 fiberglass bucket (basket) 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 testified that, when he first observedAnderson, he thought that Anderson did not have a safety belt on, but he was notcertain. After Strobach identified himself to an employee, the employee yelledto Anderson, who was in charge of a four-member crew, to come down. When thebasket of the lift was lowered, Strobach observed that, although a body beltwas in the basket, Anderson was not wearing it. At the hearing in this case,Strobach testified that he had asked Anderson whether he had worn his bodybelt. According to Strobach, Anderson had replied, ?No. I never wear it.? Oncross examination, Strobach stated that he was ?pretty sure? he had askedAnderson if it was company policy to wear safety belts, and he recalled thatAnderson had been aware of such a policy. Strobach testified that he had madeno effort to determine why Anderson violated company policy.??????????? Andersontestified that on the day of the cited incident the company truck was parked ona narrow two-lane street near the entrance of the university. It blocked onelane of traffic. His job assignment was to trim approximately twenty trees on acity block. Anderson testified that he had worn his body belt while trimmingmost of the trees on the block, but that in hurrying to finish work on the lastfew trees he had forgotten to put on the belt. He stated that he had beenhurrying to finish cutting the last few trees because university classes weregetting out for lunch break and the traffic flow was increasing. He stated thatit took approximately 15 seconds to put on the safety belt, that the belt didnot impede him on the job, and that the company had not been pressuring him toget the job done. Anderson testified that he had been asked by Strobach whetherhe had his safety belt on and that ?I told him no, I wasn?t wearing it at thetime.? Anderson denied saying to Strobach that he never wore his belt.??????????? Andersontestified that he usually wore a safety belt because it was strict companypolicy to require belt usage and that, when he was a foreman, he had instructedhis crew to wear safety belts. On direct examination Anderson testified that asforeman he had caught employees working without a belt and ?chewed [them] our?for not wearing a belt. This had occurred ?very rarely.? However, on crossexamination, he said that he had seen employees working without safety beltsonly one or two times in his four years of experience with the company and thathe had not been in charge when those incidents occurred. At first Anderson saidthat the employees had been given time off for not wearing belts, but he laterstated that he was not sure what had happened to them and that he did not knowof any employee being disciplined or demoted for not wearing a belt.??????????? Ashworth,a tree trimmer with one year?s experience, testified that he had overheard theconversation between Anderson and Strobach from a distance of three to fivefeet. He further stated that he could hear the conversation clearly, althoughit was possible that he had heard Strobach ask two when he was not present. Thetestified he had heard Strobach ask Anderson whether he was wearing a belt, towhich Anderson had replied ?no.? Ashworth did not hear Anderson say he neverwore a belt. Ashworth testified that, with the exception of the cited incident,he had never seen Anderson or any other Asplundh employee fail to wear a safetybelt and that on the date of the alleged violation, he had seen Anderson wearhis belt ?at times.???????????? RobertHerder, who had served as Asplundh?s vice president for safety since 1955,stated that his company required the use of body belts by employees in aeriallifts. He testified that ?the requirement to be belted in at all times,beginning with the man?s entry into the basket and finishing from his exist[sic] of [sic] the basket is a condition of employment.? This policy wasoutlined in Asplundh?s foreman?s manual, which was sent to every crew in the field;in a safety poster and cover letter, which was distributed monthly to thegeneral foreman for each crew; in a safety ?do and don?t? list, which wasmounted on every lift in the company and was discussed during safety meetings;and in a safety instruction booklet, which was given to every employee.Asplundh also required every foreman to conduct weekly safety meetings, whichwere about 15 minutes long. Herder testified that employees who persisted innot using the body belt would be discharged, although nobody had beendischarged in the past for this reason.??????????? Herderstated that his policy was to write memoranda to the general foreman and theparticular foreman involved when he was advised of safety violations. However,Herder had never issued written memoranda regarding body belt violationsbecause the only incidents he was aware of were those he had personallyobserved. He testified that he had observed ?a few? incidents of this type andhad dealt with those situations by means of oral reprimands. Herder further testifiedthat Anderson had never given him any ?trouble? before the cited incident.??????????? AllenPewitt, a general foreman for Asplundh and a company employee for 15 years,testified that he was Anderson?s superior. Pewitt demoted Anderson from foremanto tree trimmer, which included a cut in pay, because of the incident which ledto the citation. Pewitt stated that he visited his crews at least twice amonth, that he had never seen Anderson fail to wear a body belt, and that hehad never known Anderson to violate company rules. Pewitt said that thecompany?s rule was to give a stern oral or written reprimand for the first beltviolation and to discharge an employee for the second violation. While he haddiscovered three to five violations of the belt rule over a period of years,Pewitt stated that he had never ?caught? anyone twice.II??????????? Inhis original decision and order, Judge Riehl noted the conflict in thetestimony of Strobach and Anderson as to their conversation on the date of thecited incident. He found Strobach?s testimony to be more credible andaccordingly entered a finding that Anderson told the compliance officer that henever wore a body belt. He further found that, although Asplundh had an?excellent? safety program ?on paper,? including instructions to employees towear body belts while working from the basket of an aerial lift, the program?lacked implementation at the supervisory level and employees were permitted towork without wearing safety belts.? In support of this finding that Asplundhdid not effectively enforce its body belt rule, Judge Riehl cited Herder?stestimony that he had never issued a written memorandum on body beltviolations, that no employee had ever been discharged for failure to wear abody belt and that he had personally observed employees not wearing belts onjobs; and Anderson?s testimony that he had ?chewed out? employees for workingwithout belts. Judge Riehl also cited National Realty and ConstructionCompany, Inc. v. OSHRC, 489 F.2d 1257, 1267 n.38 (D.C. Cir. 1973) for theproposition that evidence of a foreman knowingly violating a company rulestrongly supports a finding that the rule is not effectively enforced.??????????? Inour previous decision in this case, we reversed Judge Riehl?s original decisionand order. We stated that the critical issue in this case is ?whether Asplundheffectively enforced its rule requiring the use of body belts.? We noted that?[t]he testimony of Herder, Pewitt and Ashworth tends to indicate thatviolations of the rule were infrequent and never by the same employee, and thatthe few violations which were discovered were met with verbal reprimands.? Theonly contrary evidence was the testimony of Strobach that Anderson told him henever wore his body belt. While Judge Riehl made a credibility finding thatAnderson in fact made this statement, he made no mention of Ashworth?stestimony that he did not hear this statement or of the testimony fromAsplundh?s witnesses indicating that Anderson?s usual practice was to wear abody belt. Furthermore, we stated that the judge failed to consider twopossibilities: (1) that, even if Strobach was a credible witness, hisrecitation of the conversation with Anderson did not accurately reflectAnderson?s practices, and (2) that Strobach had misunderstood Anderson?sstatement.??????????? Inaddition, we responded to the judge?s reliance on testimony that violations ofthe body belt rule were observed by supervisors and that no disciplinary actionbeyond verbal reprimands was taken. We stated that, ?if the violations wereindeed as infrequent as Asplundh?s witnesses claimed, then the need for moredrastic discipline did not arise, and the failure to take further disciplinarysteps does not reflect adversely on Asplundh?s safety program.? With respect tothe supervisors? observations of violations of Asplundh?s safety rule, westated:[T]he Commission has held that an adequatesafety program includes efforts to discover whether violations of work ruleshave occurred. Thus, the fact that supervisors discovered infrequent violationsof the body belt rule supports, rather than discredits, Asplundh?s argumentthat its safety.???????????? Accordingly,we held that, ?[i]n view of the judge?s failure to consider the entire record,we do not accept the judge?s conclusion that Asplundh?s safety program wasinadequate.? We remanded the case to Judge Riehl with the instructions noted atthe outset of this decision.??????????? Inhis decision on remand, the judge stated his view that his ?original decisionwas entirely correct in all respects.? The judge credited the testimony ofcompliance officer Strobach that, when Anderson stepped out of the aerial lift,he said to Strobach that he never wore a body belt. The judge stated that?Anderson told the truth as he knew it at the time? and that the statement was?made during the occurrence of an action? and thus should be ?given greatstrength.? Similarly, he later stated that ?[t]he credibility finding is basedon Anderson?s spontaneous utterance that Anderson never wore a body belt.? Thejudge also stated his belief that Anderson?s ?statement was entirely correct atthe time,? concluding that ?Anderson told the truth at first when he said ?no,I never wear it?.?[2]??????????? JudgeRiehl also concluded that the testimony of Herder, Anderson, Ashworth andPewitt was not credible. The judge?s decision on remand is ambiguous. However,it appears that he based this determination as to the lack of credibility ofrespondent?s witnesses on three different grounds. First, the judge expresslystated in his decision that ?[i]n assessing the credibility of the witnesses .. . [he had considered] the usual criteria of narrative, perception and memory. . ..? He further indicated that he had determined on the basis of theseconsiderations that the witnesses were not credible.[3] However, the judge did notspecify the particular aspects of the demeanor or testimony of the witnessesthat led him to conclude that they were not credible.??????????? JudgeRiehl also indicated that a second basis for his credibility determinations wasthe fact that the witnesses had each testified that Anderson used a body belt.Thus, for example, the judge stated that his conclusion that Herder, Andersonand Pewitt were not credible witnesses was ?implied when we found Strobach?stestimony was credible and that Anderson told the truth when he said ?no, Inever wear it.? Similarly the judge stated that Pewitt?s testimony lackedcredibility because ?[i]t would have been absolutely impossible for him nothaving seen Anderson fail to wear a body belt when he was at the job site.?Finally, in support of his credibility findings, the judge again citedAnderson?s testimony that he had ?caught? employees working without belts and?chewed them out? and Herder?s statement that he had never issued a memorandumconcerning body belt violations. The judge concluded that violations ofAsplundh?s body belt rule were not in fact as infrequent as claimed byAshworth, Pewitt and Herder and that Asplundh had failed to prove that itadequately communicated and effectively enforced its body belt rule.??????????? Onreview, the Secretary argues that the judge?s credibility findings are?supported by the evidence and . . . he [the judge] articulated the reasonstherefore [sic] and considered all the evidence in conformance with theCommission?s remand.? The Secretary submits that we must defer to the judge?scredibility findings and affirm the judge?s decision.[4]??????????? Asplundhcontends that Judge Riehl did not follow the instructions contained in ourprior decision because he failed to give adequate reasons for his credibilityfindings and failed to determine whether Anderson?s ?admission? reflectedAnderson?s actual practice. It submits that Strobach?s testimony should not becredited exclusively and takes exception to the judge?s ?bootstrapping??thatis, his reasoning that, if Strobach is credible, the other witnesses cannot becredible. Asplundh also takes exception to the judge?s statements indicatingthat Asplundh?s safety program was ineffectively enforced because violation ofthe rule were discovered by supervisors. Respondent argues that the evidenceestablishes its safety program to be adequately and effectively enforced, thatit sustained its defense of unpreventable employee misconduct, and that thecitation should be vacated.III??????????? As westated in our prior decision in this case, the critical issue is whetherAsplundh effectively enforced its work rule requiring employee use of bodybelts.[5] The resolution of thisissue requires a finding concerning whether Anderson, the employee who was notwearing a belt, stated to the compliance officer that he never wore a bodybelt.??????????? Thejudge?s finding that Anderson did make the statement is based in part on thereasoning that a spontaneous declaration should be given great weight. The factthat a statement is made spontaneously merely renders it admissible under anexception to the hearsay rule. See Federal Rule of Evidence 803(1) and (2). Itdoes not give the statement conclusive weight. Nevertheless, the judge accordedStrobach?s testimony as to the asserted spontaneous declaration conclusiveweight and failed to give any weight to any of the contrary evidence fromwitnesses Anderson, Ashworth, Pewitt, and Herder. Additionally, the evidentiaryrule concerning spontaneous declarations does not address the preliminary questionof whether the statement was in fact made, but instead addresses the secondaryissue of whether the statement was truthful if made. Moreover, to the extentthe judge based his finding on this rule, he did not base his finding on thosefactors, such as the witnesses? demeanor, memory, perception or narration, thatare most effectively analyzed by the trier of fact. See C. Kaufman, Inc.,78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297, 1977?78 CCH OSHD ? 22,481 at p. 27,099(No. 14249, 1978).??????????? Theother basis for the judge?s finding that Anderson said he never wore a bodybelt is the judge?s determination that Strobach was a credible witness whileAnderson, Ashworth, Pewitt and Herder were not credible witnesses. We concludethat these credibility determinations are not entitled to deference.Specifically, we conclude that none of the three grounds relied upon by thejudge provides an adequate basis for his credibility determinations.??????????? Initially,we reject the judge?s conclusions based on his observation of the witnesses.The judge?s generalized statements that respondent?s witnesses were ?notcredible? are of no value to the Commission in fulfilling our review function:This wholesale rejection of . . .testimony under the color of a credibility evaluation without any explanationfor its rejection is unacceptable . . .. An attempt, as in the instant case, tosupport the finding by applying a ?credible? or ?not credible? rubber stamp towitnesses? testimony without explanation does little to assist us in reviewingthe Judge?s action . . .. It is not enough, as the Judge apparently has done,to mentally consider the testimony and simply state the credibility finding.?P & Z Co., Inc.,77 OSAHRC 211\/F5, 6 BNA OSHC 1189, 1192, 1977?78 CCH OSHD ?\u00a022,413 at p.27,024 (No. 76?431, 1977). Here Judge Riehl failed to specify any attribute ofthe demeanor of the witnesses or any part of their testimony that would warrantthe rejection of the entire testimony of respondent?s four witnesses.??????????? Wealso reject the judge?s reliance on his determination that Strobach was acredible witness as a ground for determining that the other four witnesses werenot credible. The only testimony by Strobach that conflicts with the testimonyof respondent?s witnesses is Strobach?s statement that Anderson told him thathe never wore a body belt. However, even if we were to accept the judge?sconclusion that Strobach was a credible witness, we would not on that basisalone conclude that Anderson made the statement in question. The record as awhole creates a strong presumption that, assuming Strobach was a crediblewitness, he misunderstood what Anderson said. Nevertheless the judge refused toeven consider this possibility. See note 2 supra. Moreover, even if we were toaccept the judge?s finding that Anderson made the statement in question, wewould not on that basis alone conclude Anderson in fact never wore a body belt.Again the record as a whole creates an inference that the statement, even ifmade, did not accurately reflect Anderson?s actual work practices. The judgealso failed to consider this possibility. We therefore conclude that,particularly in view of the possibilities suggested above, Strobach?s testimonyas to a single uncorroborated statement assertedly made by an employee during thecourse of an inspection does not provide an adequate basis for the wholesalerejection of Asplundh?s entire case.??????????? Finallywe reject the judge?s reliance on testimony concerning the discovery ofinfrequent body belt violations as a basis for his credibility determinations.In our prior decision in this case we stated that Asplundh?s evidence that itssupervisors discovered infrequent violations of its body belt rules supported,rather than discredited, Asplundh?s argument that its safety program was effective.Asplundh Tree Expert Co., supra, 6 BNA OSHC at 1954 n. 6, 1978 CCH OSHD atp. 27,841 n. 6 (quoted in pertinent part, supra). In view of our finding,infra, that violations of Asplundh?s body belt rule were in fact infrequent, weconclude that the judge erred in again relying on this evidence as a basis fordiscrediting Asplundh?s witnesses.??????????? Consequently,we conclude that the judge?s credibility findings and supporting explanationfail to resolve the issue of whether Anderson?s statement was in fact made.Therefore, we will not defer to the judge?s credibility findings and we mustdetermine whether the preponderance of the evidence supports a findingdifferent from that reached by the judge. See Russell-Newman ManufacturingCo., Inc. v. NLRB, 407 F.2d 247 (5th Cir. 1969). Cf. M.J. LeeConstruction Co., note 5 supra (Commission entered independent findingafter vacating judge?s contrary finding on the ground that it was unsupportedby the record); Armor Elevator Co., Inc., 73 OSAHRC 54\/A2, 1 BNA OSHC1409, 1973?74 CCH OSHD ? 16,958 (Nos. 425 & 426, 1973), appeal dismissedno. 73?2249 (6th Cir. 1973) (findings warranted if supported by a preponderanceof the evidence).IV??????????? Atthe hearing, foreman Anderson denied making the statement attributed to him bythe compliance officer, and testified that he usually wore a body belt.Ashworth testified that he heard Strobach ask Anderson whether he was wearing abelt, to which Anderson answered ?no?; the witness testified that he did nothear Anderson state that he never wore a belt. Ashworth further testified that,prior to the incident in question, he had never seen Anderson fail to wear abody belt and that Anderson had been wearing a body belt earlier that day.Herder testified that Anderson had never given him any ?trouble? before theincident that led to the citation. Finally, Pewitt testified that he had neverseen Anderson fail to wear a body belt and had never known Anderson to violatecompany rules. In contrast to all of this testimony is the compliance officer?stestimony that Anderson made the statement that he never wore a belt. We findthat the preponderance of the evidence establishes that Anderson did not makethe statement in issue. We further find that the preponderance of the evidenceestablishes that Anderson?s usual practice was to wear a body belt whileworking from an aerial lift.??????????? Thetestimony of Herder and Pewitt indicates that the company policy for dealingwith violations of the body belt rule was a three-step disciplinary procedureconsisting of (1) a stern oral warning, (2) a written reprimand or suspension,and (3) discharge. The record establishes that, although employees have beenorally reprimanded, there have been no discharges because no employee has beencaught violating the work rule more than once. In addition, the record revealsthat violations of the rule by employees have been infrequent. Pewitt statedthat over a period of years he had discovered only three to five violations ofthe rule. Anderson?s testimony, while internally inconsistent as to somedetails, also indicates that violations of the body belt rule were infrequent.Ashworth testified that except for the cited violation he had never seenAnderson or any other employee fail to wear a body belt. Pewitt pointed outthat Anderson had been demoted from foreman for his violation of the body beltrule.??????????? Inasmuchas violations of the body belt rule were infrequent and never by the sameemployee, and the few violations that were discovered were met with verbalreprimands, we enter a finding that Asplundh effectively enforced its work rulerequiring the use of body belts in aerial lifts. See M.J. Lee ConstructionCo., note 5 supra.??????????? Consequently,inasmuch as it is undisputed that Asplundh has established a work rule designedto prevent the violation, had adequately communicated this rule to itsemployees, and had taken steps to discover if violations of the rule hadoccurred, and the record establishes that Asplundh effectively enforced itsrule, we conclude that Asplundh has maintained its burden of proving theaffirmative defense of unpreventable employee misconduct. See Asplundh TreeExpert Co., supra, 6 BNA OSHC at 1953, 1978 CCH OSHD at p. 27,841. Seealso, Mountain States Telephone & Telegraph Co., 78 OSAHRC 30\/A2, 6BNA OSHC 1504, 1978 CCH OSHD ? 22,668 (No. 13266, 1978), appeal filed,No. 78?1438 (10th Cir., June 2, 1978).V??????????? Accordingly,the judge?s decision is reversed, and item 2 of the citation alleging anonserious violation of 29 C.F.R. ? 1910.67(c)(2)(v) is vacated.?It is so ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: DEC 31, 1979?CLEARY, Chairman, Dissenting:??????????? Asset out in the majority opinion, this case was remanded previously to JudgeRiehl with instructions to make credibility findings concerning the testimonyof the several witnesses at the hearing. Judge Riehl did so, and concluded thatthe testimony of the compliance officer Stroback was credible and, under thecircumstances of the case as developed, that the testimony of the respondent?switnesses was less so.??????????? Themajority also correctly recites that the critical issue in the case is whetherAsplundh effectively enforced its workrule requiring employee use of bodybelts.The salient aspect of this issue concerns a statement purportedly made byAnderson that he never wore a bodybelt. The compliance officer, Stroback,asserted at trial that he made the statement. Anderson denied it, and a thirdwitness indicated that he did not hear Anderson make the statement, although heheard other parts of the colloquy between Stroback and Anderson. If Andersondid make the statement it would be persuasive in the disposition of this caseas a res gestae statement, that is, the circumstances under which Anderson madethe statement enforce the belief that it was true. We are thus confronted witha credibility finding, a choice between conflicting statements by witnesses onboth sides.??????????? It isgenerally accepted in administrative law that credibility judgments restprimarily with the administrative law judge (ALJ). NLRB v. Jack AugustEnterprises, Inc., 583 F.2d 575 (1st Cir. 1978); United States SteelCorp. v. Bridges, 582 F.2d 7 (5th Cir. 1978). Indeed, the findings of anALJ ?may not be disturbed unless those findings are not supported by substantialevidence.? United States Steel Corp. v. Bridges, supra at 9. This ruleof administrative review is not new. There is considerable history behind it.??????????? In UniversalCamera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456 (1951), the Supreme Court,upon reviewing the legislative history of the Administrative Procedure Act,[6]6 quoted with approval arecommendation by the Attorney General?s Committee on Administrative Procedure.The recommendation reads as follows:In general, the relationship upon appeal betweenthe [ALJ], and the agency ought to a considerable extent to be that of trialcourt to appellate court. Conclusions, interpretations, law, and policy should,of course, be open to full review. On the other hand, on matters which the[ALJ], having heard the evidence and seen the witnesses, is best qualified todecide, the agency should be reluctant to disturb his findings unless error isclearly shown. (Footnote omitted.)?340 U.S. at 494, 71 S.Ct. at 467?468. While thisrecommendation by the Attorney General?s Committee was not made a mandatorypart to administrative law, the Court cautioned that the recommendation shouldnot be viewed as repudiated. 340 U.S. at 495, 71 S.Ct. at 468. The SupremeCourt found that[n]thing in thestatutes suggests that the [NLRB] should not be influenced by the [ALJ?s]opportunity to observe the witnesses he hears and sees . . . Nothing suggeststhat reviewing courts should not give to the [ALJ?s] report such probativeforce as it intrinsically commands.?Id. Indeed, the Courtconcluded that evidence supporting an agency?s conclusion may be viewed asbeing ?less substantial? when the agency reaches a conclusion different fromthat of the ?experienced [ALJ] who has observed the witnesses and lived withthe case.? 340 U.S. at 496, 71 S.Ct. at 469.??????????? TheCommission itself has recognized that credibility findings are properly in theprovince of the presiding ALJ. In C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6BNA OSHC 1295, 1977?78 CCH OSHD ?22,481 (No. 14249, 1978), the Commission stated:It is the policy of the Commission toordinarily accept an Administrative Law Judge?s evaluation of the credibilityof witnesses, for it is the Judge who has lived with the case, heard thewitnesses, and observed their demeanor. (Citation and footnote omitted.)?6 BNA OSHC at 1297, 1977?78 CCH OSHD at p.27,099.???????????? Inthis case, the majority?s treatment of the judge?s finding speaks louder thanthe lip service they pay to the Commission?s policy under such circumstances.The conclusion of a judge who has observed the witnesses and lived with thecase is being questioned and overruled because his more delicate treatment ofthe credibility issue does not comport with the majority?s view. Sincecredibility findings often involve considerations outside the scope of mostfindings of fact, a more tactful approach is called for under certaincircumstances. I find no fault with the judge?s approach in this instance.Furthermore, I believe, as the Supreme Court recognized, that the evidencesupporting the majority?s conclusion is ?less substantial? because of itstreatment of the judge?s conclusion.??????????? Additionally,the majority presumes that Stroback misunderstood what Anderson said. Yet thereis no basis for such a ?presumption?. This conflicts with Stroback?s testimony,and in fact with that of the speaker Anderson and the other witness, which makeno suggestion that Anderson said something that could have been misunderstood.Nor was Stroback cross-examined to this end. The fact that Stroback testifiedthat he heard Anderson make such a statement, and Anderson?s denial, do notraise a presumption that Stroback misunderstood. The majority is thus making acredibility finding of its own out of the presence of the witnesses which isinconsistent with the judge?s finding, and has no foundation in the record.??????????? Iacknowledge that the majority does not wholly rely on the fact or not of thisstatement having been made, for they do consider other factors in concludingthat the preponderance of the evidence supports a finding different from thatreached by the judge. Nevertheless, if Anderson did made the statementattributed to him it is a very compelling aspect of the case. I find no basisfor the Commission to substitute its judgement for that of the judge and wouldconclude that the respondent?s safety program was not adequately enforced.\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 CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 31, 1978DECISION AND ORDERON BEHALF OF:JOHN B. RENICK, Esquire, U.S. Departmentof Labor Office of the Solicitor, Kansas City, Missouri, For the Complainant\u00a0STEVEN R. SEMLER, Esquire, Zimmerman andObadal, Washington, D.C., For the Respondent\u00a0DECISION ON REMANDVernon Riehl, Judge, OSHRC??????????? Thiscase comes before us on a remand from a decision by the Commission.Commissioners Barnako and Cottine were the majority and Chairman Cleary for theminority.??????????? Wehave been asked to make specific findings concerning whether witnessesAshworth, Pewitt, and Herder, who testified in the case, were crediblewitnesses; also to make specific findings on the question whether violations ofthe respondent?s body belt rule were in fact as infrequent as claimed byAshworth, Pewitt, and Herder; and to evaluate witness Strobach?s testimony inlight of the testimony of these other witnesses. This Judge is then toreconsider whether Asplundh?s safety program was adequate.??????????? Wehave carefully reviewed the file and feel that our original decision wasentirely correct in all respects. We affirm our position as set forth in thedecision that there is no question whatsoever but that the respondent has goneto great lengths in providing safety equipment and a very thorough safetypolicy on paper. We also reaffirm our conclusion that unfortunately the actualcarrying through down to the working level has not functioned as it should, andthat this indicates a certain degree of laxity on the part of the respondent inenforcing the standards.??????????? Ithas never been our policy in cases we have written on previously to single outindividuals in our credibility findings as having lied, not told the truth,being afraid of losing their job because of their testimony, lying to protect afellow worker, misstating the facts to justify their actions, or any of theother variety of things where witnesses either lie, evade, indulge in selectiveperception, or misstate for any reason.??????????? It isour finding from reviewing the transcript and reviewing our memory of thewitnesses that when Compliance Officer Strobach first contacted respondent?semployee Anderson, that Adnerson told the truth as he knew it at the time, thathe was not wearing a body belt, and also volunteered the fact ?no, I never wearit.? Such statements made during the occurrence of an action are given greatstrength. See Park Construction Company, Docket 2044, 75 OSAHRC 53\/A13;CCH OSHD ? 16,479, 19,591. The witness Anderson did not have time tomisconstrue the matter. He simply blurted out what was the truth and I believehis statement was entirely correct at the time. It is my finding that Strobachwas an entirely credible witness and that he was testified exactly to thesituation that existed.??????????? Ibelieve the evidence is credible as indicated on page 71 of the transcriptwhere the foreman caught his men working without belts and chewed them out.This would certainly show other occasions in which respondent has not compliedwith the standards. In this case it must be remembered that Anderson was therespondent?s foreman and he has testified to ?I never wear them? [belts]. Thiswould indicate to me that if this testimony is credible, and I believe it is,that he has continuously flaunted the standards in front of his employees,setting a very poor example insofar as complying with the standards. Those ofus who have tried cases through a long period of years (in my case I have dealtwith several thousand witnesses over a period of 40 years) develop a knack ofknowing when a witness is credible and when not. There are many signs that theexperienced attorney, cross-examiner, or judge may see. There are literallyhundreds of mannerisms that the witnesses adopt when they are either trying tolie about something or not quite tell the whole truth. There are variousappearances that they develop through the years that indicate to you that theyare perhaps trying to protect themselves from being fired, reprimanded, ortrying to protect their brother worker. There are some witnesses that lie justto keep fit. Some witnesses are guilty of selective perception.??????????? Atany rate, through my years? of experience and from observing the witnesses atthis particular trial, I concluded that the credible evidence established thefact that respondent was in violation of the standard. I concluded thatStrobach was a very credible witness. I concluded that Anderson told the truth atfirst when he said ?no, I never wear it.???????????? Inasmuchas the Commission has requested me to give my views on credibility moreexplicitly, it is my opinion that Anderson did tell the truth when he said thathe told Strobach that he never wore his belt.??????????? It ismy conclusion also from reviewing the testimony and my memory that Ashworth didnot give a credible account of what happened when he said he didn?t hearAnderson say he never wore a belt.??????????? In myobservation of Ashworth testifying, I decided he was entirely not credible andgave no weight whatsoever to his testimony. I agree that Robert Herder,Asplundh?s vice president for safety, did quite a lot to put a program on paperfor use by the employees. Unfortunately, in my judgment, this never left thepaper as witnessed by the various bits of evidence in the file which wouldindicate a continued pattern of benign neglect insofar as safety is concernedin accordance with the standards.??????????? Insupport of part of my conclusion is the fact that Anderson has been demotedfrom his job as foreman for violating the body belt policy. This wouldcertainly indicate that respondent thought he was violating the standards. Theimportance of this being that he is the foreman and represents the company andhas violated the standards according to his own testimony all the time insofaras a question of using a safety belt is concerned.??????????? Whenwe made the original finding of credibility of Strobach?s testimony, we made adifficult value judgment regarding conflicting testimony which is supported bythe record. The testimony on the case shows that the respondent?s employee wasnot wearing a body belt at the time of the inspection. This fact alone lendsgreat credibility to the finding on the disputed question whether witness saidhe never wore it. It is also evidence of an ineffective safety program. We havegiven respondent due credit for its efforts in safety. Unfortunately, they havefailed in their duty to protect their workers in accordance with the OSHA law.??????????? As weunderstand it, the primary responsibility to evaluate witnesses? testimonyreposes in this Judge. In assessing the credibility of the witnesses Strobach,Anderson, Ashworth, and Pewitt, we consider the usual criteria of narrative,perception, and memory, plus drawing on our 40 years? experience in dealingwith witnesses.??????????? Wehave considered for a long time as we tried these OSHA cases what the problemis of getting the employees to obey the standards. We have pondered whysupervisory employees constantly violate the standards in safety matters eventhough there is a good safety program on paper.??????????? Wediscussed this matter in Secretary of Labor v. Carnation Company, aCorporation, Docket 8165, 78 OSAHRC 54\/D9; CCH OSHD ? 20,281. In that case,the program for noise conservation was beautifully set forth on paper.Regrettably, it never got off the paper and there was no program.??????????? Thesame situation arose in the Secretary of Labor v. Mel Jarvis ConstructionCompany, Inc., Docket 77-1038, CCH ? 22,569 (1978 OSHD). In that case it wasstated that:We don?t know what the problem is incomplying with safety standards, but apparently working foremen, and foremanabove them in some cases, have decided for one reason or another thatcompliance with the safety standards is second, third, or possibly even furtherdown the line in their list of priorities. Somehow the serious business ofproviding for the safety of employees is tossed aside like a beanbag by theworking foreman or supervisory employee over him. Somehow he conceives in his mindin a rush situation, or where he is pushed from the pressure of otherconstruction problems, that it is alright to let safety slide for a few days,weeks, or entirely, so that he can fulfill his schedule or take care of otherassignments.???????????? It isour feeling that no matter how conscientious the top management may be that itwould be an intolerable situation to dismiss citations against respondentswhose supervisors representing them fail to do their duty (other than inisolated instances).??????????? Ifthis were so, then a complete defense to all sorts of failures on the part ofemployers could be brought about simply by publishing excellent safety programson paper and giving a lecture or two. We feel there is much more to it and thatthere must be a continuing diligence especially in industries where there is agreat chance of injury and death for violations. The employer must get itthrough to his superintending force that compliance with the law and with thesafety standard is first in order to protect the lives and welfare of hisemployees. Other matters should be pursued after safety standards are compliedwith, and before the employer puts his employees in positions where they mightsustain serious injury or death.??????????? In Secretaryof Labor v. Sletten Construction Company, BNA 6 OSHC 1091 (1977), theCommission said:?Respondent asserts that it should not beheld liable for this violation because it resulted from the willful misconductof its employee in removing his safety belt. In effect, the respondent is contendingthat this violation was unpreventable. This is not a defense unless theemployer establishes that he conducted an adequate safety program. Theessential foundations of such a program are specific safety instructions andworkrules addressing hazards peculiar to the job being performed. Theseinstructions and workrules must also be effectively communicated to employeesand uniformly and effectively enforced.? (emphasis supplied) Enfield?sTree Service, Inc., 77 osahrc 32\/B3, 5 BNA OSHC 1142, 1977?78 CCH OSHD ? 21,607(No. 9118, 1977)? (emphasis supplied)???????????? Wedistinctly found at the time of listening to Pewitt testify that his testimonylacked credibility. It would have been absolutely impossible for him not havingseen Anderson fail to wear a body belt when he was at the job site. Therefore,the conclusion to be drawn establishes a violation of company rules and OSHAstandards.??????????? Thecredibility finding is based on Anderson?s spontaneous utterance that Andersonnever wore a body belt. He was found in violation at the time of the visit.This establishes a different story line from Pewitt?s testimony. The totalpreponderance of credible evidence established to our satisfaction that theseviolations of the Rule occurred on a consistent basis. When witness Herder saidthat he had never issued a memo concerning body belt violations, it was anadmission that he as a part of management took no such efforts in regards tothe most serious problems that they could have, namely, not wearing a body beltat dangerous heights. From observing the witnesses closely and comparing theirtestimony, we concluded that the testimony of Herder, Anderson, and Pewitt werenot credible at the time of our decision. This is implied when we foundStrobach?s testimony was credible and that Anderson told the truth when he said?no, I never wear it.???????????? TheCommission cites Ocean Electric Corp., 75 OSAHRC 6\/C14, 3 BNA OSHC 1705,1975?76 CCH OSHD para. 20,167 (No. 5811, 1975) wherein the Commission indicatedthat an employer is normally responsible for violations committed by itssupervisory personnel, the employer can defend by showing that it took allnecessary precautions to prevent the occurrence of the violation. The employermust show that it established work rules designed to prevent the violation,adequately communicated these rules to its employees, took steps to discover ifviolations of these rules occurred, and effectively enforced the rules whenviolations were discovered.??????????? Theevidence establishes that employer did establish work rules designed to preventthe violation. The evidence also shows that these rules were not adequatelycommunicated to the foreman on the job and that there were violations by otheremployees. There is no evidence to show that the employer effectively enforcedthe rules when violations were discovered. There is evidence to the contrary inthat the foreman constantly did not wear a belt on the job and was violatingthe standard when he was inspected. We have considered the total evidenceinsofar as respondent?s efforts on safety are concerned. The intention wasadmirable but they simply didn?t cut the mustard when it came to having aneffective program. The Commission uses such words as ?possibility,? ?exist thepossibility,? and ?misunderstood.? These are nice speculative words but they donot go to the essence of this case insofar as examining the credible evidenceof witnesses.??????????? Insummation, we do not find that the violations of respondent?s body belt rulewere in fact as infrequent as claimed by Ashworth, Pewitt, and Herder as we donot believe them to be credible witnesses. We feel that Strobach?s testimony iscredible. We conclude that the respondent?s safety program was inadequatebecause of lack of continuing diligence to effectively communicate the ideas ofsafety to their employees.FINDINGS OF FACT??????????? 1. Atthe time of the inspection of respondent?s workplace, by a compliance officerof OSHA on November 12, 1975, there were four of respondent?s employees on atree trimming job. The compliance officer found respondent?s employee, HerbertAnderson, in a vehicle-mounted aerial lift approximately 25 feet in the air(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 office 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. Respondent?s violations of the bodybelt rule were not in fact as infrequent as claimed by Ashworth, Pewitt, andHerder.??????????? 6.Witness Strobach?s testimony was credible and established violations of thestandard.??????????? 7.The testimony of witnesses Ashworth, Pewitt, and Herder was not credible.CONCLUSIONS OF LAW??????????? 1. Atall times material hereto, respondent was an employer within the meaning ofsection 3 of the Occupational Safety and Health Act of 1970.??????????? 2. Jurisdictionof this proceeding is conferred upon the Occupational Safety and Health ReviewCommission by section 10(c) of the Act.??????????? 3. Atthe time of the 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. Respondent?ssafety program was inadequate for the reason that they did not establish acontinuing diligence to effectively communicate the safety program to itsemployees.??????????? 6.Respondent has not effectively carried down to the working foreman level theknowledge and ability to comply with the standards in the performance of theirwork.DECISION??????????? Basedupon the above findings of fact, credibility findings, conclusions of law, andby a preponderance of the credible evidence, it is hereby ORDERED that item 2of the citation for nonserious violation is affirmed and a penalty of $45 ishereby assessed for said violation.?Vernon Riehl, Judge, OSHRCDate: October 31, 1978\u00a0[1] The standardprovides:?1910.67 Vehicle-mounted elevating and rotating work platforms.(c)Specific requirements.(2)Extensible and articulating boom platforms.(v)A body belt shall be worn and a lanyard attached to the boom or basket whenworking from an aerial lift.[2] The judge?sresponse to our suggestion that Strobach may have misunderstood Anderson wasthe following:TheCommission uses such words as ?possibility,? ?exist the possibility,? and ?misunderstood.?These are nice speculative words but they do not go to the essence of this caseinsofar as examining the credible evidence of witnesses.[3] Thus, the judgemade the following statements in his decision:Inmy observation of Ashworth testifying, I decided he was entirely not credibleand gave no weight whatsoever to his testimony.Wedistinctly found at the time of listening to Pewitt testify that his testimonylacked credibility.Fromobserving the witnesses closely and comparing their testimony, we concludedthat the testimony of Herder, Anderson, and Pewitt were [sic] not credible atthe time of our decision.[4] The Secretaryrelies on the following Commission decisions as support for his contention: Fanning& Doorley Construction Co. Inc., 77 OSAHRC 157\/C11, 5 BNA OSHC 1720,1977?78 CCH OSHD ? 22,055 (No. 11008, 1977); P. Gioioso & Sons, Inc.,77 OSAHRC 153\/C3, 5 BNA OSHC 1694, 1977?78 CCH OSHD ? 22,080 (No. 15494, 1977);Okland Construction Co., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975?76 CCHOSHD ? 20,441 (No. 3395, 1976).[5] It is undisputedthat Asplundh had an established work rule requiring use of body belts byemployees whenever they worked in aerial lifts, from the time they entered tothe time they exited. It is also undisputed that Asplundh effectivelycommunicated this work rule to its employees. Herder?s testimony as toAsplundh?s extensive efforts to communicate its body belt rule to employees,see Part I, supra, was not rebutted. In addition, the record clearlyestablishes that Anderson was fully aware of Asplundh?s workrule at the time heviolated it. Indeed, we find no support in the record for the judge?s findingthat Asplundh failed to adequately communicate its work rule. Accordingly, wevacate the judge?s finding and independently enter our own finding thatAsplundh effectively communicated its body belt rule. See M.J. LeeConstruction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ?23, 330(No. 15094, 1979).[6] 5 U.S.C. ? 551 etseq.”