“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 10268\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEMERY SMISER CONSTRUCTION CO.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\tDecember 8, 1975\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tBY THE Commission:\t\t\t\t\t\t\t\t\t\tOn October 14, 1975, Commissioner Timothy F. Cleary issued a Direction for Review\t\t\t\t\t\t\t\t\t\tgranting the Petition for Discretionary Review filed by complainant, the Secretary of Labor.\t\t\t\t\t\t\t\t\t\tOn November 13, 1975, the Secretary wrote a letter to the Executive Secretary of the\t\t\t\t\t\t\t\t\t\tCommission that we construe as a Motion to Vacate the Direction for Review and to Withdraw\t\t\t\t\t\t\t\t\t\tPetition for Discretionary Review.\t\t\t\t\t\t\t\t\t\tFor the reasons stated in the Secretary\u2019s letter of November 13, 1975, it is hereby\t\t\t\t\t\t\t\t\t\tORDERED that the Motion to Vacate the Direction for Review and Withdraw the Petition for\t\t\t\t\t\t\t\t\t\tDiscretionary Review is granted.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: DEC 8, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Concurring:\t\t\t\t\t\t\t\t\t\tThe Commission has quite properly accepted the complainant\u2019s concession that the\t\t\t\t\t\t\t\t\t\tJudge\u2019s decision finding insufficient evidence to support the alleged serious violation of 29\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1926.451(c)(13) is correct. I concur with this disposition. However, since the foregoing\t\t\t\t\t\t\t\t\t\topinion does not state any of the matters covered by Judge Brenton\u2019s decision, the same is\t\t\t\t\t\t\t\t\t\tquoted in full text as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 10268\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEMERY SMISER CONSTRUCTION CO.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSeptember 11, 1975\t\t\t\t\t\t\t\t\t\tJ. Paul Brennan, Judge\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970 (29 USC 651 et seq., hereafter called the Act) contesting citations issued by the\t\t\t\t\t\t\t\t\t\tcomplainant against the respondent under the authority vested in complainant by section 9(a) of\t\t\t\t\t\t\t\t\t\tthat Act.\t\t\t\t\t\t\t\t\t\tThe citations allege that as the result of the inspection of a workplace under the\t\t\t\t\t\t\t\t\t\townership, operation or control of the respondent, located at 2340 NW 50th, Oklahoma City,\t\t\t\t\t\t\t\t\t\tOklahoma, and described as follows: \u2018Repairs on Church\u2019, the respondent has violated section\t\t\t\t\t\t\t\t\t\t5(a)(2) of the Act by failing to comply with certain occupational safety and health standards\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor pursuant to section 6 thereof.\t\t\t\t\t\t\t\t\t\tThe citation, which was issued on September 5, 1974, and reissued on September 23,\t\t\t\t\t\t\t\t\t\t1974, and the citation, which was issued on September 5, 1974, allege respectively that a serious\t\t\t\t\t\t\t\t\t\tand non-serious violation resulted from a failure to comply with standards promulgated by the\t\t\t\t\t\t\t\t\t\tSecretary by publication in the Federal Register, and codified in 29 CFR 1926.\t\t\t\t\t\t\t\t\t\tThe description of the alleged violations contained on these citations state:\t\t\t\t\t\t\t\t\t\tSERIOUS CITATION\t\t\t\t\t\t\t\t\t\tItem 1 \u201829 CFR 1926.451(d)(10) Guardrails, not less than 2 inches x 4 inches or\t\t\t\t\t\t\t\t\t\tthe equivalent and approximately 42 inches in height with a midrail of 1-inch x 4-\t\t\t\t\t\t\t\t\t\tinch lumber or equivalent and toeboards, were not installed at open ends and sides\t\t\t\t\t\t\t\t\t\tof scaffold located on the platform around the church steeple.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNONSERIOUS CITATION\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tItem 5 \u201829 CFR 1926.451(d)(10) Guardrails not less than 2 inches by 4 inches or\t\t\t\t\t\t\t\t\t\tthe equivalent and approximately 42 inches in height with a midrail of 1-inch by\t\t\t\t\t\t\t\t\t\t6-inch lumber or equivalent and toeboards were not installed at open ends and\t\t\t\t\t\t\t\t\t\tsides of the scaffold; i.e., scaffold at northeast corner of church.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe standard promulgated by the Secretary provides as follows:\t\t\t\t\t\t\t\t\t\tSERIOUS AND NONSERIOUS CITATIONS\t\t\t\t\t\t\t\t\t\tItems 1 & 5 \u20181926.451 Scaffolding.\t\t\t\t\t\t\t\t\t\t(d) Tubular welded frame scaffolds.\t\t\t\t\t\t\t\t\t\t(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material\t\t\t\t\t\t\t\t\t\tproviding equivalent protection), and approximately 42 inches high, with a\t\t\t\t\t\t\t\t\t\tmidrail of 1 x 6 inch lumber (or other material providing equivalent protection),\t\t\t\t\t\t\t\t\t\tand toeboards, shall be installed at all open sides and ends on all scaffolds more\t\t\t\t\t\t\t\t\t\tthan 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches\t\t\t\t\t\t\t\t\t\tin height. Wire mash shall be installed in accordance with paragraph (a)(6) of this\t\t\t\t\t\t\t\t\t\tsection.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPursuant to the enforcement procedure set forth in section 10(a) of the Act, the\t\t\t\t\t\t\t\t\t\trespondent was notified by letters dated September 23, 1975, from J. T. Knorpp, Area Director\t\t\t\t\t\t\t\t\t\tof the Tulss, Oklahoma, area, Occupational Safety and Health Administration, U. S. Department\t\t\t\t\t\t\t\t\t\tof Labor proposed to assess penalties for the violations alleged in the amount of $555.00.\t\t\t\t\t\t\t\t\t\tAfter respondent contested this enforcement action, and a complaint and an answer had\t\t\t\t\t\t\t\t\t\tbeen filed by the parties, the case came on for hearing at Oklahoma City, Oklahoma, on January\t\t\t\t\t\t\t\t\t\t21, 1975.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. On September 4 and 5, 1974, respondent was engaged, as a general building\t\t\t\t\t\t\t\t\t\tcontractor, in the repair of a church steeple in Oklahoma City, Oklahoma. In so doing it utilized\t\t\t\t\t\t\t\t\t\timported lumber and steel originating outside Oklahoma.\t\t\t\t\t\t\t\t\t\t2. On September 4, 1974, respondent, at this work site, maintained a metal tubular\t\t\t\t\t\t\t\t\t\tscaffold, 35 feet in height, from the ground to the roof, with a wooden platform installed on its\t\t\t\t\t\t\t\t\t\ttop.\t\t\t\t\t\t\t\t\t\t3. A material hoist had been erected adjacent to this scaffold, which was observed to be\t\t\t\t\t\t\t\t\t\tused for lowering a container of bottles by one of respondent\u2019s employees. This operation\t\t\t\t\t\t\t\t\t\trequired this employee\u2019s presence on the top of the scaffold for less than five minutes at which\t\t\t\t\t\t\t\t\t\ttime the platform thereon had not been provided with guardrails. At another time two man were\t\t\t\t\t\t\t\t\t\tobserved on this platform by the compliance officer as he was driving away from the work site.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t4. Another scaffold was in the process of erection on September 4 and 5, 1974, which\t\t\t\t\t\t\t\t\t\twas about 50 feet from ground level and eventually would encircle the church steeple. During\t\t\t\t\t\t\t\t\t\tthis process one or more of respondent\u2019s employees would probe and examine the steeple, to\t\t\t\t\t\t\t\t\t\tascertain the necessary repairs, from the platform atop this scaffold which was not provided with\t\t\t\t\t\t\t\t\t\ta guardrail.\t\t\t\t\t\t\t\t\t\t5. Respondent\u2019s contract for this job was on a time and material basis for the work\t\t\t\t\t\t\t\t\t\tperformed.\t\t\t\t\t\t\t\t\t\t6. Safety belts were provided and the foreman, a carpenter, his helper and two laborers\t\t\t\t\t\t\t\t\t\twere instructed by management at the commencement of the job to wear the safety belts when\t\t\t\t\t\t\t\t\t\tworking about an unguarded position, and on September 4, 1974, Charles Blakely, the foreman,\t\t\t\t\t\t\t\t\t\twas specifically instructed so to do.\t\t\t\t\t\t\t\t\t\t7. On September 5, 1975, management found Blakely and one Ken Bunch working above\t\t\t\t\t\t\t\t\t\tthe platform without a safety belt at which time they were ordered down off the job, Blakely was\t\t\t\t\t\t\t\t\t\treplaced on this job the next day and discharged 20 days later when another carpenter was found.\t\t\t\t\t\t\t\t\t\t8. Glenn Kirkpatrick was the general superintendent on this job as well as on several\t\t\t\t\t\t\t\t\t\tothers then in progress. When he was not at this job site, Blakely was in charge. Emery Smiser,\t\t\t\t\t\t\t\t\t\tpresident of respondent corporation, managed this job along with Kirkpatrick.\t\t\t\t\t\t\t\t\t\t9. Kirkpatrick found Blakely and his helper wearing safety belts when working from the\t\t\t\t\t\t\t\t\t\tunguarded platform at various times prior to inspection. On the 4th or 5th of September 1974, he\t\t\t\t\t\t\t\t\t\tdiscovered Blakely on the upper level scaffold without being tied off with a safety belt at which\t\t\t\t\t\t\t\t\t\ttime he called him down and Blakely was given a reprimand by Kirkpatrick.\t\t\t\t\t\t\t\t\t\t10. Emery Smiser had attended meetings, seminars, and courses of instruction on OSHA\t\t\t\t\t\t\t\t\t\tregulations. Also he studied them and took a course in first aid.\t\t\t\t\t\t\t\t\t\t11. During the walk around inspection on the 4th of September 1974, the compliance\t\t\t\t\t\t\t\t\t\tofficer saw two safety belts inside the church steeple.\t\t\t\t\t\t\t\t\t\t12. The platform on the material hoist scaffold was not guarded at the time of inspection\t\t\t\t\t\t\t\t\t\ton the 4th of September 1974, because respondent was of the opinion that taking off the large\t\t\t\t\t\t\t\t\t\tpieces of plywood from the hoist would create more chances of injury upon reaching over a\t\t\t\t\t\t\t\t\t\tguardrail than without.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t13. After respondent\u2019s examination of the steeple revealed the necessary work to be\t\t\t\t\t\t\t\t\t\tperformed, it completed the scaffold thereabouts together with guardrails which was described\t\t\t\t\t\t\t\t\t\tby the compliance officer as the best he had ever seen.\t\t\t\t\t\t\t\t\t\tISSUES\t\t\t\t\t\t\t\t\t\tWhat further precautions should respondent have taken, if any, to assure compliance with\t\t\t\t\t\t\t\t\t\tits safety instructions.\t\t\t\t\t\t\t\t\t\tDid respondent show that the required guardrail on the material hoist platform would\t\t\t\t\t\t\t\t\t\thave presented a greater change of injury than without.\t\t\t\t\t\t\t\t\t\tWhat amount of penalty, if any, should be assessed as appropriate upon a finding of a\t\t\t\t\t\t\t\t\t\tviolation.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\tThe material hoist scaffold was erected and used primarily to bring materials to the\t\t\t\t\t\t\t\t\t\tworkplace. A platform was installed on top of it for assistance in receiving materials. It was not a\t\t\t\t\t\t\t\t\t\tworking platform for any other purpose. It was used infrequently. On September 4, 1974, no\t\t\t\t\t\t\t\t\t\tguardrails had been installed at its open side and ends as required by 29 CFR 1926.451(d)(10).\t\t\t\t\t\t\t\t\t\tRespondent contended that guarding it in the manner prescribed would present a greater\t\t\t\t\t\t\t\t\t\tchance of injury than without any guarding. The argument was to the effect that reaching over a\t\t\t\t\t\t\t\t\t\t42 inch high rail to bring in large plywood was a greater hazard than if no barrier was in the way.\t\t\t\t\t\t\t\t\t\tThis was simply Emery Smiser\u2019s expert opinion. This opinion may have been well founded,\t\t\t\t\t\t\t\t\t\thowever, the evidence fails to disclose the hypothesis upon which it was based. This defense\t\t\t\t\t\t\t\t\t\tmust therefore be rejected and the citation for this non-serious violation at item five should be\t\t\t\t\t\t\t\t\t\taffirmed.\t\t\t\t\t\t\t\t\t\tThe complainant proposed a penalty of $55.00 for this nonserious violation. It is clear\t\t\t\t\t\t\t\t\t\tfrom the evidence that the duration of exposure here was almost non-existent. Although two men\t\t\t\t\t\t\t\t\t\twere seen momentarily on this platform in addition to the one employee of respondent they were\t\t\t\t\t\t\t\t\t\tnot identified nor was there an explanation of the function they were performing, if any. The\t\t\t\t\t\t\t\t\t\tprobability of an injury occurring was according to the evidence exceedingly low. The evidence\t\t\t\t\t\t\t\t\t\talso shows that respondent\u2019s good faith was exceptional. Moreover, respondent had no previous\t\t\t\t\t\t\t\t\t\thistory of any violations of the Act. Therefore, the penalty proposed should be modified by\t\t\t\t\t\t\t\t\t\treducing it is the amount of $30.00.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tAt the time of the inspection there did [appear] a working platform on the scaffold at the\t\t\t\t\t\t\t\t\t\tbottom of the church steeple which was properly guarded with railing and toe board. From this\t\t\t\t\t\t\t\t\t\tpoint upward respondent was in the process of building the scaffolding. In so doing it erected\t\t\t\t\t\t\t\t\t\tanother level from which to complete its investigation of the steeple to ascertain the necessary\t\t\t\t\t\t\t\t\t\trepairs. This platform created at this upper level was used as a means from which probing and\t\t\t\t\t\t\t\t\t\tinvestigating at higher elevations could be accomplished on the steeple preliminary to finalizing\t\t\t\t\t\t\t\t\t\tthe scaffold\u2019s height and design. Inasmuch as this upper level platform was not then guarded\t\t\t\t\t\t\t\t\t\trespondent\u2019s employees selected to perform this work were provided safety belts and given\t\t\t\t\t\t\t\t\t\texplicit instructions to wear and use them for protection against injury in the event of a fall.\t\t\t\t\t\t\t\t\t\tAt this stage of the scaffold construction process it had not been determined whether this\t\t\t\t\t\t\t\t\t\tplatform would become a working platform. It is interesting to note that the compliance officer\t\t\t\t\t\t\t\t\t\tupon his first visit learned this upper level platform had not been used as a scaffold platform or\t\t\t\t\t\t\t\t\t\twalking surface for the performance of work on the steeple. On the following day he observed\t\t\t\t\t\t\t\t\t\tmen on the upper level scaffold by means of binoculars from his office several blocks away and\t\t\t\t\t\t\t\t\t\tlater upon visiting the site was told that respondent\u2019s employees had been up there. At this time\t\t\t\t\t\t\t\t\t\the observed one employee tied off with safety belt and life line. Also at this time the\t\t\t\t\t\t\t\t\t\tsuperintendent arrived with more scaffolding material and guard rails were in the process of\t\t\t\t\t\t\t\t\t\tbeing installed on the upper level platform but not then completed. One workman was taking off\t\t\t\t\t\t\t\t\t\ta corner of the steeple as described by the compliance officer. But the evidence also shows that a\t\t\t\t\t\t\t\t\t\tsheet metal craft was also on the site and that the corners may well have been examined by a\t\t\t\t\t\t\t\t\t\tworkman of another employer. Also respondent\u2019s men wore white hard hats and the man\t\t\t\t\t\t\t\t\t\tobserved at the alleged corner wore a red hard hat. It is therefore difficult to arrive at a clear cut\t\t\t\t\t\t\t\t\t\tconclusion that respondent\u2019s employees were doing anything other than examining the steeple\t\t\t\t\t\t\t\t\t\tand proceeding with the construction of the scaffold and guard rails of the platform as\t\t\t\t\t\t\t\t\t\tdetermined by investigation.\t\t\t\t\t\t\t\t\t\tThe crew employed by respondent at this job site consisted of two carpenters and two\t\t\t\t\t\t\t\t\t\tlaborers. One of the carpenters was selected as foreman because respondent believed from pest\t\t\t\t\t\t\t\t\t\texperience that he was reliable and would follow instructions inasmuch as he had never been\t\t\t\t\t\t\t\t\t\tknown to disobey an order. But on the day of inspection he violated a specific instruction to use\t\t\t\t\t\t\t\t\t\ta safety belt and tie off when probing above the upper level scaffolding. This was not observed\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tby the compliance officer but was immediately reported to him by respondent. Also this\t\t\t\t\t\t\t\t\t\temployee was at that time reprimanded, demoted, and subsequently fired.\t\t\t\t\t\t\t\t\t\tThere is no dispute that the upper level scaffold was not completely guarded on\t\t\t\t\t\t\t\t\t\tSeptember 5, 1974, in accordance with the standard alleged. The conflict in the evidence has to\t\t\t\t\t\t\t\t\t\tdo with whether the scaffold was still in the process of erection together with whether respondent\t\t\t\t\t\t\t\t\t\tknowingly permitted work performance on or above it without providing and demanding the use\t\t\t\t\t\t\t\t\t\tof safety belts and lifelines.\t\t\t\t\t\t\t\t\t\tComplainant argues that respondent know his man were violating the Act because he\t\t\t\t\t\t\t\t\t\tsaw, from long distance, three or four man upon the high level after which respondent\u2019s foreman\t\t\t\t\t\t\t\t\t\tsaid his man were up there; that four of respondent\u2019s men spent some time wrecking columns,\t\t\t\t\t\t\t\t\t\tand two employees were observed by the compliance officer in the presence of respondent\u2019s\t\t\t\t\t\t\t\t\t\tpresident on the upper level, one of which was without his safety belt. On the other hand there\t\t\t\t\t\t\t\t\t\twere only two carpenters on this job and the credible evidence indicates conclusively that they\t\t\t\t\t\t\t\t\t\twere the only employees required as being competent to investigate above the upper level. The\t\t\t\t\t\t\t\t\t\ttwo laborers were elsewhere and in fact worked on the columns on the ground. Moreover, the\t\t\t\t\t\t\t\t\t\ttwo man, one of which wore a safety belt were never identified. It is inferred that the one\t\t\t\t\t\t\t\t\t\twearing the equipment was respondent\u2019s employee and the other was not. If he was he simply\t\t\t\t\t\t\t\t\t\twas disobeying orders which the evidence shows was not foreseeable.\t\t\t\t\t\t\t\t\t\tThe preponderance of the evidence clearly shows that safety belts were available and\t\t\t\t\t\t\t\t\t\tspecifically ordered to be used when probing and investigating from and above the unguarded\t\t\t\t\t\t\t\t\t\tscaffold. In fact the safety belts and life lines were maintained inside the church steeple to be\t\t\t\t\t\t\t\t\t\treadily available when these two carpenters had occasion to go out [check] the scaffold.\t\t\t\t\t\t\t\t\t\tThis was an unusual and demanding job for the respondent. Its managers had the\t\t\t\t\t\t\t\t\t\tforesight to engage expert help to assist in designing and engineering the scaffold to be erected\t\t\t\t\t\t\t\t\t\tas it progressed from tier to tier of the steeple. Respondent learned there was just no way to\t\t\t\t\t\t\t\t\t\tproceed without the use of safety belts and life lines until the scaffold was completed. And the\t\t\t\t\t\t\t\t\t\tfirst time foreman was discovered by respondent\u2019s superintendent violating the instructions he\t\t\t\t\t\t\t\t\t\twas called down and reprimanded. He was specifically instructed and cautioned again that the\t\t\t\t\t\t\t\t\t\trule and policy was to wear belt and line on and above the upper level, in the presence of the\t\t\t\t\t\t\t\t\t\tcompliance officer, by respondent\u2019s president one day prior to being again discovered violating\t\t\t\t\t\t\t\t\t\tthe rule which eventually resulted in his discharge.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe evidence also shows that respondent was an employer that strove in every way to\t\t\t\t\t\t\t\t\t\toperate and maintain safe working condition. There is just no evidence upon which it may be\t\t\t\t\t\t\t\t\t\tpredicated that respondent should have anticipated or foreseen that its foreman would take\t\t\t\t\t\t\t\t\t\tmatters into his own hands and violate the rule and policy and permit his helper to do likewise.\t\t\t\t\t\t\t\t\t\tRespondent, therefore, dis not, and could not have, know that this employee would not follow\t\t\t\t\t\t\t\t\t\tthe established and accepted procedure.\t\t\t\t\t\t\t\t\t\tThe scaffold at the level in question was not completed thus the only known protection\t\t\t\t\t\t\t\t\t\tunder the circumstances and facts of this case was personal protective equipment in the nature of\t\t\t\t\t\t\t\t\t\tsafety belts and life lines. This equipment was provided and ordered used. But the foreman of his\t\t\t\t\t\t\t\t\t\town violation, without the knowledge or consent, either expressly or by implication, of the\t\t\t\t\t\t\t\t\t\trespondent choose to ignore the plain and unambiguous order of his employer.\t\t\t\t\t\t\t\t\t\tThe exposure to a fall in this case lies solely upon the employee in utter disregard\t\t\t\t\t\t\t\t\t\trespondent\u2019s careful plain and supervision.\t\t\t\t\t\t\t\t\t\tConsidering all the facts and circumstances here respondent exercised that degree of\t\t\t\t\t\t\t\t\t\treasonable supervision that the law expects or contemplates in like or similar situations.\t\t\t\t\t\t\t\t\t\tTherefore, responding should not be accountable for the violation alleged.\t\t\t\t\t\tSee Secretary v.\t\t\t\t\t\t\t\t\t\tNorman R. Bratcher Co., 2 OSAHRC 725 (1973);\t\t\t\t\t\tSecretary v. Southern Special Products Corp.\t\t\t\t\t\t\t\t\t\t3 OSAHRC 599 (1973);\t\t\t\t\t\tSecretary v. Clearwater Power Co. 7 OSAHRC 707 (1974); and\t\t\t\t\t\t\t\t\t\tSecretary v. Standard Glass Co. 1 OSAHRC 595 (1972).\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. Respondent knowingly exposed one or more employees to a fall from the scaffold\t\t\t\t\t\t\t\t\t\tsupporting the material hoist which is violative of 29 CFR 1926.451(c)(13).\t\t\t\t\t\t\t\t\t\t2. Respondent did not knowingly expose any employee to a fall from the upper level\t\t\t\t\t\t\t\t\t\tscaffold for lack of guardrails when safety belts and life lines were provided and ordered to be\t\t\t\t\t\t\t\t\t\tused at this level.\t\t\t\t\t\t\t\t\t\t3. The Act does not require constant supervision of employees by management in the\t\t\t\t\t\t\t\t\t\tquest to cause adherence to safety instructions.\t\t\t\t\t\t\t\t\t\t4. Supervision and enforcement of safety rules which conforms with the attendant facts\t\t\t\t\t\t\t\t\t\tand circumstances is sufficient.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tWherefore, it is Ordered that:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe citation for non-serious violation of 29 CFR 1926.451(c)(13) be and it hereby is,\t\t\t\t\t\t\t\t\t\taffirmed.\t\t\t\t\t\t\t\t\t\tThe notification of proposed penalty for this non-serious violation be and it hereby is,\t\t\t\t\t\t\t\t\t\tmodified by reducing the $55.00 proposal in the amount of $30.00 so as to assess the sum of\t\t\t\t\t\t\t\t\t\t$25.00.\t\t\t\t\t\t\t\t\t\tThe citation for serious violation of 29 CFR 1926.451(c)(13) and the notification of\t\t\t\t\t\t\t\t\t\tproposed penalty to be assessed therefor in the amount of $500.00 be and each hereby is,\t\t\t\t\t\t\t\t\t\tvacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJ. Paul Brennan, Judge\t\t\t\t\t\t\t\t\t\t\t\t\t”