“Docket No. 87-0619 SECRETARY OF LABOR,Complainant ,v.ATLAS INDUSTRIAL PAINTERS,Respondent.OSHRC Docket No. 87-0619DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Atlas Industrial Painters, Inc. (\”Atlas\”) is a painting contractor inBirmingham, Alabama.\u00a0 In early March of 1987, Atlas was painting the cement wall onthe side of a bridge and the ironwork underneath the bridge on a Birmigham worksite, whentwo Occupational Safety and Health Administration (\”OSHA\”) compliance officers,Terry Bailey and William Powers, conducted an inspection of the worksite.\u00a0 Thecompliance officers observed three Atlas employees painting the bridge from two scaffoldson opposite sides of the bridge. [[1\/]]\u00a0\u00a0 On each scaffold, the platform onwhich the painters stood was approximately two feet wide and three feet long, and wassuspended over the side of the bridge by vertical steel members equipped with casters onthe top.\u00a0 Because of the caster, the entire scaffold could be rolled horizontallyalong the edge of the guardrail. Each scaffold was lowered down the side of the bridge toa position where the bottom of the work platform was about ten to eleven feet below thesurface of the bridge. The scaffolding platforms hung approximately thirty feet above theground. At the time of the inspection, neither lifelines nor safety nets were in place toprovide fall protection. One employee was wearing a safety belt, but it was not attachedto a lifeline. Each scaffold had a guardrail on the back of the platform.The compliance officers photographed an Atlas employee as he climbed up one of thescaffold of the scaffolds onto the bridge. Although each buggy scaffold had a ladderattached to it, there was a gap of 72 inches from the bottom rung of the ladder to theplatform. This condition required the employee leaving the scaffolding to step upapproximately 42 inches from the floor of the platform to the rear guardrail of thescaffolding and then to step up another 30 inches from the rear guardrail to the bottomrung of the ladder. The president of Atlas, McRay Gingo, had provided ladder extensions atthe site that were designated 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 in one of the trucksparked at the worksite.Based on the inspection, the Secretary issued to Atlas a single citation divided intoparts 1a and 1b. Item 1a, as amended, alleged a willful violation of 29 C.F.R. ?1926.28(a), for failure to require employees working on the platforms to wear personalprotective equipment.[[3\/]] Item 1b alleged a willful violation of 29 C.F.R. ?1926.451(a)(13), for failure to provide an adequate access ladder for employees climbingon or off the platforms.[[4\/]] The Secretary proposed a total penalty of $6,400 for thetwo-item citation. Atlas contested the citation, and a hearing was conducted before ReviewCommission Administrative Law Judge Edwin G. Salyers. At the hearing and in its trialbrief, Atlas objected to the willful classification of the violations and to the amount ofthe penalty. The judge held that Atlas willfully violated both standards, finding thatAtlas had \”manifested plain indifference to employee safety\” because it\”condon[ed] its employees[‘] flagrant disregard of the safety standards\” byfailing to enforce its safety policy requiring the employees’ use of the safety belts,lifelines, and ladder extensions. The judge found the proposed $6,400 penalty to beappropriate. On review, Atlas contests the willful designation of the citation, as well asthe $6,400 penalty.I. Citation Item 1aIt is undisputed that three of Atlas’ employees, who were exposed to a 30-foot fall hazardfrom the unguarded platforms, were not wearing safety belts attached to lifelines, inviolation of 29 C.F.R. ? 1926.28(a). At issue is whether Atlas’ failure to comply withthe cited standard was a willful violation of the Act. In order to establish a willfulviolation of the Act, the Secretary must prove that a violation was \”committedvoluntarily with either an intentional disregard for the requirements of the Act or withplain indifference to employee safety.\” A.C. Dellovade, Inc., 13 BNA OSHC1017, 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 forrequiring the wearing of appropriate personal protective equipment.\” Bratton Corp.,14 BNA OSHC 1893, 1897, 1990 CCH OSHD (P) 29,152, p. 38,993 (No. 83-132, 1990). Atlas’president and two other Atlas employees testified regarding the company’s use of safetybelts and lifelines.McRay Gingo, Atlas’ president, testified that \”practically all the employees\”were told what Atlas’ safety regulations are, were issued safety belts and lifelines, andwere told that they are required to \”be tied off at all times when working over six[feet] off the ground.\” However, Gingo testified that if Atlas enforced its safetypolicy, the employees would leave, and that he has a problem finding experienced painters.Charles Hyde, Atlas’ supervisor at the worksite, testified that a workman found not usinga safety belt would be suspended for three days on the first occurrence and fired on thesecond occurrence. He stated that it was his regular practice, as well as Atlas’ policy,to require employees to use their safety belts and lifelines. Hyde testified that heoccasionally had difficulty in getting employees to wear the safety belts and attach themto the safety line, and that when he found an employee whose safety belt was not fastenedto the safety line, he would call the employee’s \”attention to it and make themfasten it and tell them they’d better keep it fastened.\” While Hyde testified that hehad fired one or two men in the past for wearing a safety belt that was not tied off, Hydestated that he would only say \”I don’t really need you anymore.\” Thus, theevidence suggests that he did not communicate to the employees the actual reason he firedthem. He also testified that after the inspection, he discovered an employee without hissafety belt secured 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 caught not wearing hissafety belt, \”it’s supposed to be three days off without pay.\” When Latham wasasked if he been suspended after Gingo caught him working without a lifeline, Lathamresponded, \”Well, he got onto me. he just needs me so bad he can’t afford to fireme.\”In affirming a willful violation, Judge Salyers observed that \”[i]n the present case,respondent has manifested plain indifference to employee safety\” by \”condoningits employees’ flagrant disregard of the safety standards.\” The judge noted that\”[d]espite a previous citation for similar violations issued in 1982, respondent didnot have an enforced safety policy.\” Judge Salyers found that McRay Gingo, thepresident of Atlas, knew that his employees were not complying with the safety standards.He further found that although Atlas instituted a safety program that provided theemployees with ladder extensions, safety belts and lifelines, and encouraged the employeesto use, them, the message \”tacitly communicated to the employees was that anyviolation of the safety standards would be overlooked in the interests of keeping men onthe job.\”After careful consideration of the record as a whole, we agree with the judge. OSHA citedAtlas in 1981 for failing to comply with the same standard cited here after an employeewas killed in a fall. Despite this awareness of section 1926.28(a) and the potentiallydire consequences of failing to comply with it, Atlas condoned its employees’ disregardfor the standard’s requirements and did not enforce its own safety program with respect tothe use of safety belts and lifelines. See Constructora Maza, Inc., 6 BNAOSHDC 1309, 1977-78 CCH OSHD (P) 22,487 (Nos. 13680, 14509, 1978).[[5\/]] This failure toenforce the known requirements of section 1926.28(a) is properly characterized as\”plain indifference to employee safety.\” A.C. Dellovade, Inc., 13 BNAOSHC at 1019, 1986-87 CCH OSHD at p. 36,341. We therefore affirm the violation as willful.II. Citation Item 1bAtlas was additionally cited for violating 29 C.F.R. ? 1926.451(a)(13) because of\”[t]he inadequacy and the manner in which employees gained access to an egress fromthese buggy-type scaffolds.\” At the worksite, Atlas made available ladder extensionsthat were designed to be attached to the bottom of the existing ladders on the scaffolds.However, these extensions were not in use at the time of the inspection. On review, Atlasdoes not dispute that it failed to comply with section 1926.451(a)(13) by not requiringemployees to use the ladder extensions provided at the site. It does contend that thejudge erred in characterizing the violation as willful. We agree with Atlas, and concludethat the facts do not support a willful characterization of this violation.It is undisputed that the ladder extensions were not attached to the ladders on the day ofthe inspection. However, beyond the bare facts of the previous violation and Atlas’president having constructed ladder extensions after that violation, there areinsufficient facts in the record upon which to base a willful characterization. The onlyother pertinent evidence is the testimony of Atlas’ Supervisor Hyde that he had instructedthe employees to attach the ladder extensions on the morning of the inspection. Gingo,Atlas’ president, testified that the ladder extensions were in place on the previous day.There is no direct evidence 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 it difficult for us tocharacterize this violation as willful. The Commission has interpreted section1926.451(a)(13)’s requirement that \”[a]n access ladder or equivalent safe accessshall be provided\” (emphasis added), to mean that \”an employer must notonly provide but also ensure the use of an ‘access to scaffolding.\” Borton, Inc.,10 BNA OSHC 1462, 1465, 1982 CCH OSHD (p) 25,983, p. 32,599 (No. 77-2115, 1981). However,that decision was subsequently reversed by the United States Court of Appeals for theTenth Circuit, which held that \”the term ‘provide’ is not ambiguous\” and thatall that is required by the standard is that an access ladder be provided. Borton, Inc.v. OSHRC, 734 F.2d 508, 510 (10th Cir. 1984). Since Atlas was in compliance with theTenth Circuit’s interpretation of the standard, its failure to comply with theCommission’s disputed interpretation does not suggest either intentional disregard for therequirements of the Act or plain indifference to employee safety. Accordingly, we concludethat the Secretary did not establish that Atlas’ failure to comply section 1926.451(a)(13)was willful.Where the Secretary alleges that a violation is willful but fails to prove willfulness, another- than-serious violation may be affirmed. A serious violation will not be foundunless the parties have expressly or impliedly consented to try the issue of whether theviolation was serious. Crawford Construction Co., 10 BNA OSHC 1552, 1526, 1982 CCHOSHD (P) 25,984, p. 32,607 (No. 79-928), rev’d on another grounds, 718 F.2d 1098(6th Cir. 1983). Here, we hold that the violation cannot be classified as serious becausethere was no allegation by the Secretary that the violation was serious and because theissue was not tried by the parties. Keco Industries, Inc., 13 BNA OSHC 1161, 1170,1986-87 CCH OSHD III. Penalty In his decision, the judge assessed the $6,400 penalty proposed by the Secretary, nothingthat Atlas’ \”argument that the penalty assessed by the Secretary is excessive iswithout merit,\” because Compliance Officer Bailey \”set out in detail how thepenalty was calculated in accordance with 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 Jarvis ConstructionCo., Inc., 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981). In Mel Jarvis, theCommission held that \”[t]he test of an employer’s good faith, for purposes ofdetermining willfulness, is an objective one, i.e., was the employer’s belief concerning afactual matter or concerning the interpretation of a standard, reasonable under thecircumstances.\” The judge found that the $6,400 penalty was appropriate because\”[i]t was not reasonable for respondent to ignore OSHA safety standards out of fearof losing employees who refused to exercise safety precautions while working.\”Although we affirm the section 1926.451(a)(13) item as other-than-serious rather thanwillful, the high gravity of the violations, Atlas’ previous history of violations and itslack of good faith provide no basis for reducing the combined penalty of $6,400 assessedby the judge.IV. Order Accordingly, we find that Atlas committed a willful violation of section 1926.28(a) and another-than- serious violation of section 1926.451(a)(13). We assess a penalty of $6,400.\u00a0Edwin G.Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: August 9, 1991SECRETARY 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 of respondentDECISION AND ORDERSALYERS, Judge: Respondent, Atlas Industrial Painters, Inc., is a painting contractoroperating out of Birmingham, Alabama. In early March of 1937 respondent was engaged as asubcontractor on a worksite located on the Red Mountain Expressway in Birmingham. At thetime 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 and William Powers arrivedat the worksite to conduct an inspection[[1\/]] (Tr. 9-10). In the course of theirinspection, the compliance officers observed three Atlas employees working off of twobuggy 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 scaffoldplatforms in question were approximately two feet wide and three feet long and weresuspended by steel members that hooked onto the guardrail. The scaffold was on casterswhich allowed the scaffold to be rolled along the guardrail. The scaffold platform hungabout 10 feet below the guardrail, approximately 30 feet above the ground (Tr. 13, 17).In order to gain access to or egress from the scaffold, respondent’s employees had toclimb a ladder attached to the scaffold. The bottom rung of the ladder was 72 inches fromthe platform. The compliance officers observed respondent’s employees climbing over theguardrail to egress from the scaffold (Tr. 16; Ex. C-1 thru C-4).None of respondent’s employees who were observed working off of the scaffold was using anyform of fall protection (Tr. 19). One of the employees was observed wearing a safety belt,but it was not attached to a lifeline, or to anything else (Tr. 19). No lifelines werepresent, and no safety nets were rigged (Tr. 19). The employees working off the scaffoldswere thus exposed to a 30-foot fall, with the probable result of death or serious physicalinjury (Tr. 23).Respondent had been previously cited for violation of fall protection standards in Januaryof 1982 (Tr. 36). That citation was issued pursuant to an investigation conducted byCompliance Officer William Powers in December of 1981 following an employee fatality (Tr.53, 55). Powers testified that during the follow-up inspection for the 1981 fatality, hediscussed abatement methods at length with McRay Gingo, respondent’s president (Tr. 54).After the 1981 inspection, platforms (Tr. 55, Ex. C-7).Undisputed testimony from several witnesses established that the ladder extensions, safetybelts, and lifelines were in one of the trucks parked at the worksite, and none of themwas in use (Tr. 35, 45, 76, 94, 108). Charles Hyde, respondent’s supervisor at theworksite, testified that it was his regular practice to warn employees to use their safetybelts and lifelines (Tr. 81). Hyde also stated that he gave each new employee a safetytalk upon hiring (Tr. 98).There was also testimony from respondent’s own witnesses that any safety rules respondentmay have were not really enforced. Hyde testified that he had caught one of respondent’semployees without his safety belt since the most recent inspection but that Hyde did notsuspend him because \”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 industry and that itwas difficult to keep people (Tr. 120). One of respondent’s employees, Ed Latham, statedthat if an employee is caught not wearing his safety belt, \”it’s supposed tobe three days off without pay\” (Emphasis added) (Tr. 108). When Latham was asked ifhe had been suspended after Gingo caught him working without a lifeline, Latham responded,\”Well, he got onto me. He just needs me so bad he can’t afford to fire me\” (Tr.111).Respondent was issued a citation on March 9, 1987, alleging a willful violation of 29C.F.R. ? 1926.105(a).[[2\/]] At hearing the Secretary moved to amend that standard to 29C.F.R. ? 1926.28(a), which provides:(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.The evidence adduced at the hearing indicates that the use of safety belts and lifelinesis a more feasible means of providing fall protection than the use of safety nets.Therefore, in accordance with Federal Rule of Civil Procedure 15(b), the Secretary’smotion 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 safe access shall be provided.\”Even though respondent had acquired appropriate ladders for use by its employees followingthe 1981 inspection, the undisputed evidence discloses these ladders were not in use atthe time of the current inspection.OSHA’s proposed penalty for the alleged willful violations is $6,400. Respondent objectsto the \”willful\” classification and to the amount of the penalty.\”A violation is willful if it was committed voluntarily with either an intentionaldisregard for the requirements of the Act or with plain indifference to employeesafety.\” A.C. Dellovade, Inc.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 OSAHRC,______13 BNA OSHC 1017, 1987 CCH OSHD (p) 27,786, p. 36,341 (No. 83-1189, 1987). In thepresent case, respondent has manifested plain indifference to employee safety.Despite a previous citation issued in 1982 for similar violations, respondent did not havean enforced safety policy. Compliance Officer Powers had spoken with Gingo following the1982 citation and had discussed methods of abatement with him. Gingo was well aware of therequirements of the standard. He did not require his employees to comply with thestandards because he was afraid that such enforcement would cause the employees to quit.The employees knew this and violated the standards with impunity.Gingo knew that his employees were not complying with the safety standards. Respondentostensibly instituted a safety program providing its employees with ladder extensions andsafety belts and lifelines and encouraging the employees to use them. But the message thatwas tacitly communicated to the employees was that any violation of the safety standardswould be overlooked in the interests of keeping men on the job. By condoning its employeesflagrant disregard of the safety standards, respondent committed a willful violation of 29C.F.R. ? 1926.28(a) and 29 C.F.R. ? 1926.451(a)(13).Respondent’s argument that the penalty assessed by the Secretary is excessive is withoutmerit. Compliance Officer Bailey set out in detail how the penalty was calculated inaccordance with the OSHA Field Operations Manual (Tr. 38-40).Respondent contends that the Secretary unfairly determined that respondent merited a zerofactor for good faith (Tr. 40). \”The test of an employer’s good faith, for purposesof determining willfulness, is an objective one, i.e., was the employer’s beliefconcerning a factual matter or concerning the interpretation of a standard, reasonableunder the circumstances.\” Mel Jarvis Construction Co., Inc., 81 OSAHRC 81\/B13,10 BNA OSHC 1052, 1053, 1981 CCH OSHD (p) 25,713 (No. 77-2100, 1981). It was notreasonable for respondent to ignore OSHA safety standards out of fear of losing employeeswho refused to exercise safety precautions while working. The penalty of $6,400 isappropriate.FINDINGS OF FACT1. 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 William Powers commenced aninspection on a worksite located on the Red Mountain Expressway where Atlas was engaged asa subcontractor. Atlas was painting the cement on a bridge expansion and on the ironworklocated beneath the bridge.3. The compliance officers observed three of Atlas’ employees working off of two buggyscaffolds. The buggy scaffold were suspended approximately 10 feet below the bridgeguardrail and approximately 30 feet above the ground. The scaffolds were equipped withladders to provide the employees with access to and from the scaffold. The bottom rung ofthe ladder was 72 inches from the scaffold platform.4. Safety belts, lifelines, and ladder extensions for the scaffold ladders were all keptin a truck owned by Atlas and parked at the worksite. None of these items was being usedby Atlas’ employees at the time of the inspection.5. Atlas had been previously cited in 1982 for violation of fall protection standardsfollowing an employee fatality. Compliance Officer Powers had conducted that inspectionand had discussed abatement methods with Atlas’ president, McRay Gingo.6. Atlas provided its employees with safety belts, lifelines, and ladder extensions andtold them to use the items. The employees were not, however, disciplined or penalized whenthey ignored this instruction.CONCLUSIONS OF LAW1. Atlas, at all times material to this proceeding, was engaged in a business affectinginterstate commerce within the meaning of section 3(5) of the Occupational Safety andHealth Act of 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, was subject to the requirementsof the Act and the standards promulgated thereunder. The Commission has jurisdiction ofthe parties and of the subject matter.3. Atlas was in willful violation of 29 C.F.R. ? 1926.28(a) for failing to require itsemployees to wear safety belts and lifelines.4. Atlas was in willful violation of 29 C.F.R. ? 1926.451(a)(13) for failing to provideand require the use of a safe access ladder on its buggy scaffolds.ORDERBased upon the findings of fact and conclusions of law, it is ORDERED:Items 1a and 1b of the willful citation issued to Atlas on March 9, 1987, is affirmedand a penalty of $6,400 is assessed.EDW’N G. SAILYIERS JudgeDate: January 13, 1988\u00a0FOOTNOTES:[[1\/]]A buddy scaffold, alson known as a rail scaffold, is a scaffold that attaches toa bridge’s guardrail and has a platform that hangs down below the bridge, enabling workersto gain access to the lower portion of the bridge.[[2\/]]Several years prior to this inspection, on December 23, 1981, Atlas had been issueda citation alleging a serious violation of 29 C.F.R. ? 1926.28(a), for its failure toprovide lifelines to employees working on a scaffold, and an other-than- serious violationof 29 C.F.R. ? 1926.451(a)(13), for the company’s failure to provide an access ladder tothe buggy scaffold platform, \”exposing employee(s) to possible fall hazard.\”That case involved a fatal accident and was investigated by William Powers, the complianceofficer who assisted in conducting the inspection in the present case. After the 1981inspection, Gingo devised ladder extensions to provide access to the scaffold platforms.Earlier in March 1972 and then again in May 1972, OSHA cited a firm doing business asPaintings Unlimited for hazards related to falls from scaffolding and falls resulting frominadequate access to scaffolding ladders. McRay Gingo was the general manager of PaintingsUnlimited, 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 appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for employees.At the hearing, the Secretary made a motion to amend item 1a of the citation from 29C.F.R. ? 1926.105(a) to 29 C.F.R. ? 1926.28(a). Atlas contested the motion to amend. Thejudge reserved ruling on the amendment until his decision, where he granted the motion. Onreview, 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 a willfulviolation of 29 C.F.R. ? 1926.28(a), in which it was alleged that the company’s employeesfailed to wear safety belts while exposed to a fall of 138 feet. In affirming theallegation that the employer had a company rule requiring the employees’ use of safetybelts, no disciplinary action was taken against the employees, despite their repeatedfailure to wear safety belts.[[6\/]] Compliance Office Bailey testified that an adjustment for good faith was notgiven because the OSHA Field Operations Manual permits \”no adjustment for good faithwhere a willful, high-gravity, serious violation occurs.\” No adjustment for historyof previous violations was given because \”the company has a history of seriousviolations of the standard.\”\u00a0[[1\/]]The inspection of the entire worksite lasted three days (Tr. 11). After the first day, itwas determined that only one compliance officer was needed to complete the inspection, andTerry Bailey continued on the following two days alone (Tr. 52). All of the events atissue in the present 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 feet above the ground orwater surface, or other surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.”