“SECRETARY OF LABOR,Complainant ,v.ATLAS INDUSTRIAL PAINTERS,Respondent.OSHRC Docket No. 87-0619_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Atlas Industrial Painters, Inc. (\”Atlas\”) is a painting contractor inBirmingham, Alabama. In early March of 1987, Atlas was painting thecement wall on the side of a bridge and the ironwork underneath thebridge on a Birmigham worksite, when two Occupational Safety and HealthAdministration (\”OSHA\”) compliance officers, Terry Bailey and WilliamPowers, conducted an inspection of the worksite. The complianceofficers observed three Atlas employees painting the bridge from twoscaffolds on opposite sides of the bridge. [[1\/]] On each scaffold,the platform on which the painters stood was approximately two feet wideand three feet long, and was suspended over the side of the bridge byvertical steel members equipped with casters on the top. Because of thecaster, the entire scaffold could be rolled horizontally along the edgeof the guardrail. Each scaffold was lowered down the side of the bridgeto a position where the bottom of the work platform was about ten toeleven feet below the surface of the bridge. The scaffolding platformshung approximately thirty feet above the ground. At the time of theinspection, neither lifelines nor safety nets were in place to providefall protection. One employee was wearing a safety belt, but it was notattached to a lifeline. Each scaffold had a guardrail on the back of theplatform.The compliance officers photographed an Atlas employee as he climbed upone of the scaffold of the scaffolds onto the bridge. Although eachbuggy scaffold had a ladder attached to it, there was a gap of 72 inchesfrom the bottom rung of the ladder to the platform. This conditionrequired the employee leaving the scaffolding to step up approximately42 inches from the floor of the platform to the rear guardrail of thescaffolding and then to step up another 30 inches from the rearguardrail to the bottom rung of the ladder. The president of Atlas,McRay Gingo, had provided ladder extensions at the site that weredesignated to be attached to the bottom of the existing ladders, butthey were not in use during the inspection.[[2\/]]The ladder extensions, along with safety belts and lifelines, were inone of the trucks parked at the worksite.Based on the inspection, the Secretary issued to Atlas a single citationdivided into parts 1a and 1b. Item 1a, as amended, alleged a willfulviolation of 29 C.F.R. ? 1926.28(a), for failure to require employeesworking on the platforms to wear personal protective equipment.[[3\/]]Item 1b alleged a willful violation of 29 C.F.R. ? 1926.451(a)(13), forfailure to provide an adequate access ladder for employees climbing onor off the platforms.[[4\/]] The Secretary proposed a total penalty of$6,400 for the two-item citation. Atlas contested the citation, and ahearing was conducted before Review Commission Administrative Law JudgeEdwin G. Salyers. At the hearing and in its trial brief, Atlas objectedto the willful classification of the violations and to the amount of thepenalty. The judge held that Atlas willfully violated both standards,finding that Atlas had \”manifested plain indifference to employeesafety\” because it \”condon[ed] its employees[‘] flagrant disregard ofthe safety standards\” by failing to enforce its safety policy requiringthe employees’ use of the safety belts, lifelines, and ladderextensions. The judge found the proposed $6,400 penalty to beappropriate. On review, Atlas contests the willful designation of thecitation, as well as the $6,400 penalty.I. _Citation Item 1a_It is undisputed that three of Atlas’ employees, who were exposed to a30-foot fall hazard from the unguarded platforms, were not wearingsafety belts attached to lifelines, in violation of 29 C.F.R. ?1926.28(a). At issue is whether Atlas’ failure to comply with the citedstandard was a willful violation of the Act. In order to establish awillful violation of the Act, the Secretary must prove that a violationwas \”committed voluntarily with either an intentional disregard for therequirements of the Act or with plain indifference to employee safety.\”_A.C. Dellovade, Inc.,_ 13 BNA OSHC 1017, 1019, 1986-87 CCH OSHD (P)27,786, p. 36,341 (No. 83-1189, 1987).Section 1926.28(a), by its express terms, makes the employer\”responsible for requiring the wearing of appropriate personalprotective equipment.\” _Bratton Corp._, 14 BNA OSHC 1893, 1897, 1990 CCHOSHD (P) 29,152, p. 38,993 (No. 83-132, 1990). Atlas’ president and twoother Atlas employees testified regarding the company’s use of safetybelts and lifelines.McRay Gingo, Atlas’ president, testified that \”practically all theemployees\” were told what Atlas’ safety regulations are, were issuedsafety belts and lifelines, and were told that they are required to \”betied off at all times when working over six [feet] off the ground.\”However, Gingo testified that if Atlas enforced its safety policy, theemployees would leave, and that he has a problem finding experiencedpainters.Charles Hyde, Atlas’ supervisor at the worksite, testified that aworkman found not using a safety belt would be suspended for three dayson the first occurrence and fired on the second occurrence. He statedthat it was his regular practice, as well as Atlas’ policy, to requireemployees to use their safety belts and lifelines. Hyde testified thathe occasionally had difficulty in getting employees to wear the safetybelts and attach them to the safety line, and that when he found anemployee whose safety belt was not fastened to the safety line, he wouldcall the employee’s \”attention to it and make them fasten it and tellthem they’d better keep it fastened.\” While Hyde testified that he hadfired one or two men in the past for wearing a safety belt that was nottied off, Hyde stated that he would only say \”I don’t really need youanymore.\” Thus, the evidence suggests that he did not communicate to theemployees the actual reason he fired them. He also testified that afterthe inspection, he discovered an employee without his safety beltsecured but did not suspend him because \”he was my main man [that had]been with me a long time.\”Ed Latham, an employee at Atlas, stated that if an employee is caughtnot wearing his safety belt, \”it’s supposed to be three days off withoutpay.\” When Latham was asked if he been suspended after Gingo caught himworking without a lifeline, Latham responded, \”Well, he got onto me. hejust needs me so bad he can’t afford to fire me.\”In affirming a willful violation, Judge Salyers observed that \”[i]n thepresent case, respondent has manifested plain indifference to employeesafety\” by \”condoning its employees’ flagrant disregard of the safetystandards.\” The judge noted that \”[d]espite a previous citation forsimilar violations issued in 1982, respondent did not have an enforcedsafety policy.\” Judge Salyers found that McRay Gingo, the president ofAtlas, knew that his employees were not complying with the safetystandards. He further found that although Atlas instituted a safetyprogram that provided the employees with ladder extensions, safety beltsand lifelines, and encouraged the employees to use, them, the message\”tacitly communicated to the employees was that any violation of thesafety standards would be overlooked in the interests of keeping men onthe job.\”After careful consideration of the record as a whole, we agree with thejudge. OSHA cited Atlas in 1981 for failing to comply with the samestandard cited here after an employee was killed in a fall. Despite thisawareness of section 1926.28(a) and the potentially dire consequences offailing to comply with it, Atlas condoned its employees’ disregard forthe standard’s requirements and did not enforce its own safety programwith respect to the use of safety belts and lifelines. _See__Constructora Maza, Inc.,_ 6 BNA OSHDC 1309, 1977-78 CCH OSHD (P) 22,487(Nos. 13680, 14509, 1978).[[5\/]] This failure to enforce the knownrequirements of section 1926.28(a) is properly characterized as \”plainindifference to employee safety.\” _A.C. Dellovade, Inc._, 13 BNA OSHC at1019, 1986-87 CCH OSHD at p. 36,341. We therefore affirm the violationas willful.II. _Citation Item 1b_Atlas was additionally cited for violating 29 C.F.R. ? 1926.451(a)(13)because of \”[t]he inadequacy and the manner in which employees gainedaccess to an egress from these buggy-type scaffolds.\” At the worksite,Atlas made available ladder extensions that were designed to be attachedto the bottom of the existing ladders on the scaffolds. However, theseextensions were not in use at the time of the inspection. On review,Atlas does not dispute that it failed to comply with section1926.451(a)(13) by not requiring employees to use the ladder extensionsprovided at the site. It does contend that the judge erred incharacterizing the violation as willful. We agree with Atlas, andconclude that the facts do not support a willful characterization ofthis violation.It is undisputed that the ladder extensions were not attached to theladders on the day of the inspection. However, beyond the bare facts ofthe previous violation and Atlas’ president having constructed ladderextensions after that violation, there are insufficient facts in therecord upon which to base a willful characterization. The only otherpertinent evidence is the testimony of Atlas’ Supervisor Hyde that hehad instructed the employees to attach the ladder extensions on themorning of the inspection. Gingo, Atlas’ president, testified that theladder extensions were in place on the previous day. There is no directevidence that any Atlas supervisor had actual knowledge that the ladderextensions were not in place at the time of the cited violation.Moreover, the law interpreting section 1926.451(a)(13) would make itdifficult for us to characterize this violation as willful. TheCommission has interpreted section 1926.451(a)(13)’s requirement that\”[a]n access ladder or equivalent safe access shall be _provided_\”(emphasis added), to mean that \”an employer must not only provide butalso ensure the use of an ‘access to scaffolding.\” _Borton, Inc._, 10BNA OSHC 1462, 1465, 1982 CCH OSHD (p) 25,983, p. 32,599 (No. 77-2115,1981). However, that decision was subsequently reversed by the UnitedStates Court of Appeals for the Tenth Circuit, which held that \”the term’provide’ is not ambiguous\” and that all that is required by thestandard is that an access ladder be provided. _Borton, Inc. v. OSHRC_,734 F.2d 508, 510 (10th Cir. 1984). Since Atlas was in compliance withthe Tenth Circuit’s interpretation of the standard, its failure tocomply with the Commission’s disputed interpretation does not suggesteither intentional disregard for the requirements of the Act or plainindifference to employee safety. Accordingly, we conclude that theSecretary did not establish that Atlas’ failure to comply section1926.451(a)(13) was willful.Where the Secretary alleges that a violation is willful but fails toprove willfulness, an other- than-serious violation may be affirmed. Aserious violation will not be found unless the parties have expressly orimpliedly consented to try the issue of whether the violation wasserious. _Crawford Construction Co._, 10 BNA OSHC 1552, 1526, 1982 CCHOSHD (P) 25,984, p. 32,607 (No. 79-928), _rev’d on another grounds_, 718F.2d 1098 (6th Cir. 1983). Here, we hold that the violation cannot beclassified as serious because there was no allegation by the Secretarythat the violation was serious and because the issue was not tried bythe parties. _Keco Industries, Inc._, 13 BNA OSHC 1161, 1170, 1986-87CCH OSHDIII. PenaltyIn his decision, the judge assessed the $6,400 penalty proposed by theSecretary, nothing that Atlas’ \”argument that the penalty assessed bythe Secretary is excessive is without merit,\” because Compliance OfficerBailey \”set out in detail how the penalty was calculated in accordancewith the _OSHA Field Operations Manual_.\”[[6\/]] In ruling on Atlas’contention that the Secretary unfairly determined that Atlas merited azero factor for good faith, the judge relied on language in _Mel JarvisConstruction Co., Inc._, 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981). In_Mel Jarvi_s, the Commission held that \”[t]he test of an employer’s goodfaith, for purposes of determining willfulness, is an objective one,i.e., was the employer’s belief concerning a factual matter orconcerning the interpretation of a standard, reasonable under thecircumstances.\” The judge found that the $6,400 penalty was appropriatebecause \”[i]t was not reasonable for respondent to ignore OSHA safetystandards out of fear of losing employees who refused to exercise safetyprecautions while working.\” Although we affirm the section1926.451(a)(13) item as other-than-serious rather than willful, the highgravity of the violations, Atlas’ previous history of violations and itslack of good faith provide no basis for reducing the combined penalty of$6,400 assessed by the judge.IV. OrderAccordingly, we find that Atlas committed a willful violation of section1926.28(a) and an other-than- serious violation of section1926.451(a)(13). We assess a penalty of $6,400. Edwin G.Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: August 9, 1991————————————————————————SECRETARY OF LABOR,Complainant ,v.ATLAS INDUSTRIAL PAINTERS,Respondent.OSHRC Docket No. 87-0619APPEARANCES:Cynthia Welch Brown, Esquire, Office of the Solicitor, U.S.Department of Labor, Birmingham, Alabama, on behalf of complainantThomas E. Reynolds, Esquire, Birmingham, Alabama, on behalf ofrespondent_DECISION AND ORDER_SALYERS, Judge: Respondent, Atlas Industrial Painters, Inc., is apainting contractor operating out of Birmingham, Alabama. In early Marchof 1937 respondent was engaged as a subcontractor on a worksite locatedon the Red Mountain Expressway in Birmingham. At the time in question,respondent was painting the cement on a bridge expansion and theironwork that was located underneath the bridge (Tr. 10).On March 3, 1987, OSHA Safety Compliance Officers Terry Bailey andWilliam Powers arrived at the worksite to conduct an inspection[[1\/]](Tr. 9-10). In the course of their inspection, the compliance officersobserved three Atlas employees working off of two buggy scaffolds (Tr.33). A buggy scaffold is one that hangs over a guardrail on a bridge,enabling workers to gain access to the lower portion of the bridge (Tr.13). The scaffold platforms in question were approximately two feet wideand three feet long and were suspended by steel members that hooked ontothe guardrail. The scaffold was on casters which allowed the scaffold tobe rolled along the guardrail. The scaffold platform hung about 10 feetbelow the guardrail, approximately 30 feet above the ground (Tr. 13, 17).In order to gain access to or egress from the scaffold, respondent’semployees had to climb a ladder attached to the scaffold. The bottomrung of the ladder was 72 inches from the platform. The complianceofficers observed respondent’s employees climbing over the guardrail toegress from the scaffold (Tr. 16; Ex. C-1 thru C-4).None of respondent’s employees who were observed working off of thescaffold was using any form of fall protection (Tr. 19). One of theemployees was observed wearing a safety belt, but it was not attached toa lifeline, or to anything else (Tr. 19). No lifelines were present, andno safety nets were rigged (Tr. 19). The employees working off thescaffolds were thus exposed to a 30-foot fall, with the probable resultof death or serious physical injury (Tr. 23).Respondent had been previously cited for violation of fall protectionstandards in January of 1982 (Tr. 36). That citation was issued pursuantto an investigation conducted by Compliance Officer William Powers inDecember of 1981 following an employee fatality (Tr. 53, 55). Powerstestified that during the follow-up inspection for the 1981 fatality, hediscussed abatement methods at length with McRay Gingo, respondent’spresident (Tr. 54). After the 1981 inspection, platforms (Tr. 55, Ex. C-7).Undisputed testimony from several witnesses established that the ladderextensions, safety belts, and lifelines were in one of the trucks parkedat the worksite, and none of them was in use (Tr. 35, 45, 76, 94, 108).Charles Hyde, respondent’s supervisor at the worksite, testified that itwas his regular practice to warn employees to use their safety belts andlifelines (Tr. 81). Hyde also stated that he gave each new employee asafety talk upon hiring (Tr. 98).There was also testimony from respondent’s own witnesses that any safetyrules respondent may have were not really enforced. Hyde testified thathe had caught one of respondent’s employees without his safety beltsince the most recent inspection but that Hyde did not suspend himbecause \”he was my main man that’d been with me a long time\” (Tr. 97).Gingo stated that there was a big turnover in the construction industryand that it was difficult to keep people (Tr. 120). One of respondent’semployees, Ed Latham, stated that if an employee is caught not wearinghis safety belt, \”it’s _supposed_ to be three days off without pay\”(Emphasis added) (Tr. 108). When Latham was asked if he had beensuspended after Gingo caught him working without a lifeline, Lathamresponded, \”Well, he got onto me. He just needs me so bad he can’tafford to fire me\” (Tr. 111).Respondent was issued a citation on March 9, 1987, alleging a willfulviolation of 29 C.F.R. ? 1926.105(a).[[2\/]] At hearing the Secretarymoved to amend that standard to 29 C.F.R. ? 1926.28(a), which provides:(a)The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.The evidence adduced at the hearing indicates that the use of safetybelts and lifelines is a more feasible means of providing fallprotection than the use of safety nets. Therefore, in accordance withFederal Rule of Civil Procedure 15(b), the Secretary’s motion is granted.Respondent was also charged with a willful violation of 29 C.F.R. ?1926.451(a)(13), which provides: \”An access ladder or equivalent safeaccess shall be provided.\” Even though respondent had acquiredappropriate ladders for use by its employees following the 1981inspection, the undisputed evidence discloses these ladders were not inuse at the time of the current inspection.OSHA’s proposed penalty for the alleged willful violations is $6,400.Respondent objects to the \”willful\” classification and to the amount ofthe penalty.\”A violation is willful if it was committed voluntarily with either anintentional disregard for the requirements of the Act or with plainindifference to employee safety.\” _A.C. Dellovade, Inc., _OSAHRC,______13 BNA OSHC 1017, 1987 CCH OSHD (p) 27,786, p. 36,341 (No.83-1189, 1987). In the present case, respondent has manifested plainindifference to employee safety.Despite a previous citation issued in 1982 for similar violations,respondent did not have an enforced safety policy. Compliance OfficerPowers had spoken with Gingo following the 1982 citation and haddiscussed methods of abatement with him. Gingo was well aware of therequirements of the standard. He did not require his employees to complywith the standards because he was afraid that such enforcement wouldcause the employees to quit. The employees knew this and violated thestandards with impunity.Gingo knew that his employees were not complying with the safetystandards. Respondent ostensibly instituted a safety program providingits employees with ladder extensions and safety belts and lifelines andencouraging the employees to use them. But the message that was tacitlycommunicated to the employees was that any violation of the safetystandards would be overlooked in the interests of keeping men on thejob. By condoning its employees flagrant disregard of the safetystandards, respondent committed a willful violation of 29 C.F.R. ?1926.28(a) and 29 C.F.R. ? 1926.451(a)(13).Respondent’s argument that the penalty assessed by the Secretary isexcessive is without merit. Compliance Officer Bailey set out in detailhow the penalty was calculated in accordance with the _OSHA FieldOperations Manual_ (Tr. 38-40).Respondent contends that the Secretary unfairly determined thatrespondent merited a zero factor for good faith (Tr. 40). \”The test ofan employer’s good faith, for purposes of determining willfulness, is anobjective one, i.e., was the employer’s belief concerning a factualmatter or concerning the interpretation of a standard, reasonable underthe circumstances.\” _Mel Jarvis Construction Co., Inc._, 81 OSAHRC81\/B13, 10 BNA OSHC 1052, 1053, 1981 CCH OSHD (p) 25,713 (No. 77-2100,1981). It was not reasonable for respondent to ignore OSHA safetystandards out of fear of losing employees who refused to exercise safetyprecautions while working. The penalty of $6,400 is appropriate._FINDINGS OF FACT_1. Atlas Industrial Painters, Inc. (\”Atlas\”) is a painting contractoroperating in and around Birmingham, Alabama.2. On March 4, 1987, OSHA Compliance Officers Terry Bailey and WilliamPowers commenced an inspection on a worksite located on the Red MountainExpressway where Atlas was engaged as a subcontractor. Atlas waspainting the cement on a bridge expansion and on the ironwork locatedbeneath the bridge.3. The compliance officers observed three of Atlas’ employees workingoff of two buggy scaffolds. The buggy scaffold were suspendedapproximately 10 feet below the bridge guardrail and approximately 30feet above the ground. The scaffolds were equipped with ladders toprovide the employees with access to and from the scaffold. The bottomrung of the ladder was 72 inches from the scaffold platform.4. Safety belts, lifelines, and ladder extensions for the scaffoldladders were all kept in a truck owned by Atlas and parked at theworksite. None of these items was being used by Atlas’ employees at thetime of the inspection.5. Atlas had been previously cited in 1982 for violation of fallprotection standards following an employee fatality. Compliance OfficerPowers had conducted that inspection and had discussed abatement methodswith Atlas’ president, McRay Gingo.6. Atlas provided its employees with safety belts, lifelines, and ladderextensions and told them to use the items. The employees were not,however, disciplined or penalized when they ignored this instruction._CONCLUSIONS OF LAW_1. Atlas, at all times material to this proceeding, was engaged in abusiness affecting interstate commerce within the meaning of section3(5) of the Occupational Safety and Health Act of 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and of the subject matter.3. Atlas was in willful violation of 29 C.F.R. ? 1926.28(a) for failingto require its employees to wear safety belts and lifelines.4. Atlas was in willful violation of 29 C.F.R. ? 1926.451(a)(13) forfailing to provide and require the use of a safe access ladder on itsbuggy scaffolds._ORDER_Based upon the findings of fact and conclusions of law, it isORDERED:Items 1a and 1b of the willful citation issued to Atlas on March 9,1987, is affirmed and a penalty of $6,400 is assessed.EDW’N G. SAILYIERSJudgeDate: January 13, 1988 ————————————————————————FOOTNOTES:[[1\/]]A buddy scaffold, alson known as a rail scaffold, is a scaffoldthat attaches to a bridge’s guardrail and has a platform that hangs downbelow the bridge, enabling workers to gain access to the lower portionof the bridge.[[2\/]]Several years prior to this inspection, on December 23, 1981,Atlas had been issued a citation alleging a serious violation of 29C.F.R. ? 1926.28(a), for its failure to provide lifelines to employeesworking on a scaffold, and an other-than- serious violation of 29 C.F.R.? 1926.451(a)(13), for the company’s failure to provide an access ladderto the buggy scaffold platform, \”exposing employee(s) to possible fallhazard.\” That case involved a fatal accident and was investigated byWilliam Powers, the compliance officer who assisted in conducting theinspection in the present case. After the 1981 inspection, Gingo devisedladder extensions to provide access to the scaffold platforms.Earlier in March 1972 and then again in May 1972, OSHA cited a firmdoing business as Paintings Unlimited for hazards related to falls fromscaffolding and falls resulting from inadequate access to scaffoldingladders. McRay Gingo was the general manager of Paintings Unlimited,which later became Atlas Industrial Painters.[[3\/]]The Standard provides:? 1926.28 Personal protective equipment.(a)The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor employees.At the hearing, the Secretary made a motion to amend item 1a of thecitation from 29 C.F.R. ? 1926.105(a) to 29 C.F.R. ? 1926.28(a). Atlascontested the motion to amend. The judge reserved ruling on theamendment until his decision, where he granted the motion. On review,Atlas did not contest the judge’s ruling.[[4\/]]The standard provides:? 1926.451 Scaffolding(a) _General Requirements_.(13) An access ladder or equivalent safe access shall be provided.[[5\/]]In _Constructora Maza_, the employer was issued a citation for awillful violation of 29 C.F.R. ? 1926.28(a), in which it was allegedthat the company’s employees failed to wear safety belts while exposedto a fall of 138 feet. In affirming the allegation that the employer hada company rule requiring the employees’ use of safety belts, nodisciplinary action was taken against the employees, despite theirrepeated failure to wear safety belts.[[6\/]] Compliance Office Bailey testified that an adjustment for goodfaith was not given because the OSHA Field Operations Manual permits \”noadjustment for good faith where a willful, high-gravity, seriousviolation occurs.\” No adjustment for history of previous violations wasgiven because \”the company has a history of serious violations of thestandard.\” [[1\/]]The inspection of the entire worksite lasted three days (Tr. 11). Afterthe first day, it was determined that only one compliance officer wasneeded to complete the inspection, and Terry Bailey continued on thefollowing two days alone (Tr. 52). All of the events at issue in thepresent case occurred on the first day of the inspection, March 3, 1987(Tr. 43).[[2\/]]Section 1926.105(a) provides:Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.”