“SECRETARY OF LAB0R,Complainant,v.F. A. GRAY, INC.,Respondent.OSHRC Docket No. 83-0517_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The question in this case is whether F. A. Gray violated 29 C.F.R. ?1926.28(a) and 1926.451(i)(8) when its employees were working at theedge of a roof and on a two-point suspension scaffold without usingsafety belts. Chairman Buckley and Commissioner Cleary agree that thecitation item alleging a violation of section 1926.451(i)(8) should bevacated. They disagree, however, on whether the employer violatedsection 1926.28(a).[[1]]_Item 2A: Section 1926.451(i)(8)–Safety Belts on Scaffold_Item 2A of the citation alleges that F. A. Gray violated section1926.451(i)(8), which requires that employees working on two-pointsuspension scaffolds \”be protected by an approved safety \”Life beltattached to a lifeline.\” [[2]] A compliance officer of the OccupationalSafety and Health Administration, William Chase, observed two Grayemployees, Reider Hansen and Chuck Hansen, on a two-point suspensionscaffold without safety belts and lifelines. The employees were paintingthe exterior wall of a Holiday Inn building in Portsmouth, NewHampshire. The staging of the scaffold was 50 feet in the air. Thecompliance officer testified that, if the staging fell, the employeescould be seriously injured or killed.The parties agree that the employees should have been wearing safetybelts. They disagree, however, as to whether the employer should be heldliable for the employees’ failure to do so. The Secretary argued, thatClaude Poulin, Gray’s leadman at the Holiday Inn jobsite, was asupervisory employee who knew that the employees had been working on thescaffold without belts. According to the Secretary, Poulin’s knowledgecan be imputed to Gray. Gray argues that Poulin was not a supervisoryemployee. It asserts that it had established a safety rule requiring theuse of safety belts and that none of its supervisors knew that theemployees on the scaffold were not wearing their belts.Judge Furcolo vacated the citation, agreeing with Gray that Poulin wasnot a foreman whose knowledge could be imputed to the employer. Thejudge also concluded that Gray had an effectively communicated andenforced rule requiring its employees to wear safety belts when workingon the scaffold. Finding that Gray had established an unpreventableemployee misconduct defense, the judge vacated citation. ChairmanBuckley and Commissioner Cleary agree that the judge’s decision shouldbe affirmed, although for different reasons.Chairman Buckley would vacate the citation because the violation wasunpreventable. Because the purpose of the Act is not to punishinfractions, but to prevent safety and health hazards in the workplace,unpreventable infractions of safety regulations by employees are notviolations of the Act by an employer. Unpreventable infractions includethose that are unknown to a reasonably diligent employer or are notreasonably predictable or foreseeable. The Secretary contends that theissue of a violation can be decided by determining whether Poulin can becharacterized as a supervisor whose knowledge is to be \”imputed\” to theemployer. By use of the legal fiction of imputation of knowledge, theSecretary argues that the violation here was within the employer’sknowledge and therefore preventable.The preventability of unsafe work conditions cannot be determined bycharacterizing an employee as a supervisor and then applying legalfiction to impute that employee’s knowledge tot he employer. As theUnited States Court of Appeals for the Third Circuit has held, \”[t]heparticipation of…supervisory personnel may be evidence that anemployer could have foreseen and prevented a violation through theexercise of reasonable diligence, but it will not, standing alone, endthe inquiry into foreseeability.\” Pennsylvania Power & Light Co. v.OSHRC, 737 F.2d 350, 358 (3d Cir. 1984). The conduct and knowledge ofsupervisors are therefore only one of several factors that must beconsidered in determining whether a condition violative of a standardwas preventable. See Todd Shipyards Corp., 85 OSAHRC __, 11 BNA OSHC2177, 2182, 1984 CCH OSHD ? 27,001, p. 34,744 ( No. 77-1598, 1984)(Buckley, Chairman, separate opinion). If the violative condition wasnot preventable, the employer cannot be found in violation of the Act.Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570-71 (5th Cir.1976).F. A. Gray’s supervisors Poplawski and Bradford Gray knew that employeeswould use the scaffolding but reasonably expected that safety beltswould be worn in accordance with OSHA standards and company policy. F.A. Gray’s supervisors had informed the employees of the requirement towear belts and had told them they would be disciplined for failure toobey. Gray and Poplawski each visited the site at. random once or twicea day and neither had seen the employees working on the scaffold withouttheir belts. Indeed, the employees testified that they had always worntheir belts In the past, and Hansen confirmed that he would have beenfired had he not done so.The Secretary argues that Poulin was a supervisor and knew thatemployees were not wearing belts. Poulin, although a leadman of thecrew, testified that he could not control the actions of his fellowemployees and could not have required them to conform to theacknowledged policy of wearing safety belts. Even accepting theSecretary’s argument that Poulin had supervisory authority for somepurposes and should be considered a supervisor does not establish thatthe incident was preventable, in view of the uncontroverted evidencethat Poulin’s supervisory authority was not such that he could haveprevented his fellow employees from ignoring the requirement that safetybelts be worn. The Secretary’s argument elevates form over analysis,since it ignores the realities of -worksite authority in favor of easilyapplied labels. It is often the case on construction sites that thereare many \”Supervisors\” with varying levels of authority. It is notenough to show that a \”supervisor\” knew of the violative conditionwithout considering or analyzing other factors that evidence anemployer’s efforts and ability to achieve compliance with the Act. Here,Gray fulfilled its obligations to enforce the Act through two of itssupervisors who unquestionably had authority to enforce compliance.Chairman Buckley therefore finds that the failure of F. A. Gray’semployees to wear safety belts was not preventable and he would vacatethe citation item.Commissioner Cleary agrees that the citation should be vacated. To provethat an employer violated the Act, the Secretary must show, among otherthings, that the employer knew or with the exercise of reasonablediligence could have known of and prevented the violation. ConcreteConstruction Co., 85 OSAHRC __, 12 BNA OSHC 1174, 1176, 1985 CCH OSHD ?27,171, p. 35,072 (No. 82-1210, 1985), pet. for rev. filed, No. 85-3197(6th Cir. March 11, 1985); Scheel Construction Co., 76 OSAHRC 138\/B6, 4BNA OSHC 1824, 1976-77 CCH OSHD ? 21,263 (No. 8867, 1976). The Secretarymakes a prima facie showing of knowledge by proving that a supervisoryemployee knew of or created the violation because the knowledge andactions of supervisory personnel are generally imputed to theiremployers. See H. E. Wiese, Inc., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499,1505, 1982 CCH OSHD ? 25,985, p. 32,614 (No. 78-204, 1982), aff’d mem.,705 F.2d 449 (5th Cir. 1983). Commissioner Cleary therefore agrees withthe judge and the parties that Poulin’s status is relevant. CommissionerCleary concludes, however, that Poulin was not a supervisor for thepurpose of imputing knowledge.Although Poulin identified himself to the compliance officer as theforeman, he admitted at the hearing that this was a designation he usedpretty much himself. Poulin did not have the power to hire or fire andhad no responsibility for enforcing safety rules. He told the complianceofficer that he did not like to tell the other employees what to dobecause they had been at the work longer than he had. Although Poulinhad the responsibility to make sure that all materials needed on the jobwere present and that the employees understood the job at hand, foremanWalter Poplawski and vice president Bradford Gray were in charge at thesite. They tried to visit the job at least once, if not twice, a day andwere responsible for safety. Since Poulin was only entrusted withminimal supervision and both Poplawski and Gray visited the siteregularly, Poulin was not a supervisor for the purpose of imputingknowledge. See Daniel International Corp. v. OSHRC, 683 F.2d 361,364-365 (11th Cir. 1982).The Secretary also failed to establish that Gray was not reasonablydiligent in attempting to prevent the violation. First, the employer hadan effectively communicated work rule. John Gray, F. A. Gray’spresident, explained that after receiving a citation in November 1982alleging a \”serious\” violation for the failure of two employees workingfrom a two-point suspension scaffold to wear safety belts, heimplemented a new safety rule: The decision to wear safety belts wouldno longer be left to the independent judgement of its journeymenpainters; instead, the employees were required to wear belts whenworking on a two-point suspension scaffold. Although Gray nevercommitted the rule to writing, the employees were informed of the ruleat the beginning of each job by Gray’s supervisors. There is no evidencethat the employees did not understand the rule. The only twononsupervisory employees who testified at the hearing, Reider Hansen andClaude Poulin, stated that they were aware of the safety belt rule andthat they had worn safety belts on prior occasions.[[3]] See Jones &Laughlin Steel Corp., 82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ?26,128 (No. 76-2636, 1982) (substance, not form, of safety rules aresignificant).The Secretary argues that Gray did not adequately enforce its safetyprogram. He maintains that the supervisors were rarely present on thejobsite and that the observation of violations was largely incidental.Commissioner Cleary concludes that the degree of supervision wasadequate. Vice president Bradford Gray stated that random inspectionswere made at least once, if not twice, a day to see \”that the employeeswere using their safety equipment. Foreman Poplawski also inspected theworksite at random at least twice a day and sometimes more than twice aday. If safety belt violations had been occurring, they would have beeneasily observed. Yet, neither Poplawski nor Bradford Gray had observedemployees without their belts. Poplawski personally inspected thejobsite when Claude Poulin and Al Gerald’s were working on the scaffoldand had not observed a violation of the safety belt rule. Bradford Graywas not aware of any violations of the safely belt rule by any employeesbefore the inspection date and neither he nor Poplawski were aware thatemployees were not wearing belts on the inspection date. Poplawski hadtold employees \”there would be discipline\” if they failed to follow therules. Bradford Gray had reprimanded employees for expressingdisagreement or not complying with the safety rules and testified thatemployees had been dismissed. Both Claude Poulin and Reider Hansen wereexperienced employees. Raider Hansen stated that if either BradfordGray, John Gray or Poplawski knew he was not wearing a belt, he probablywould have been fired. Commissioner Cleary concludes that Gray wasreasonably diligent in its efforts to prevent the violation. See CapitalElectric Line Builders, Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982);Utilities Line Construction Co., 76 OSAHRC 121\/A2, 4 BNA OSHC 1681,1684, 1976-77 CCH OSHD ? 21,098, p. 25,401 n. 7 (No. 4105, 1976).Accordingly, he would vacated item 2A._Item 1: Section 1926.28(a)–Safety Belts_Citation item 1 alleges that F. A. Gray violated section 1926.28(a)[[4]]in that its employees did not wear safety belts while they were paintingthe exterior of a wall at the edge of a flat roof of the Holiday Innbuilding. There was a parapet at the edge of the roof that was about 12inches wide; the interior height was 15 to 18 inches. The roof was 60feet above the ground. When compliance officer Chase visited the site,two Gray employees, leadman Poulin and Al Gerald’s, a laborer, werepainting an area about 2 feet below the top of the parapet on the outerface of the building. To perform this work they used a roller with ahandle approximately 23 inches long, knelt on the roof and leaned outagainst the parapet, resting their chests on the foot-wide top surfaceof the parapet. A photograph taken by the compliance officer shows anemployee kneeling on the roof behind the parapet, bracing himself withhis left hand. His right hand was extended over the parapet to paint theexterior of the two-foot high section of exterior wall.The evidence is conflicting as to whether a hazard existed for whichsafety belts were needed. The compliance officer and John Crevier,general representative of the International Brotherhood of Painters andAllied Trades and a painter for sixteen years, testified that theemployees should have been wearing protective equipment. In complianceofficer Chase’s opinion, it would have been easy for the employees tofall while painting because the employees \”were hanging out over theedge of the parapet….\” They testified also that the employees were inan awkward position and could have become disoriented. Crevier based hisopinion on his belief that the entire torso of an employee would beleaning out over the parapet. He further stated that he had twicepainted parapet walls and had worn a safety belt both times. He alsotestified that employees in shipyards and other areas use safety beltswhen painting on flat roofs and tanks where there is a danger offalling. However, he admitted he had not seen anyone painting the faceof a parapet at those sites.Two painting contractors who competed with F. A. Gray, Arthur Chase andMaynard Young, did not believe that a hazard existed or that safetybelts were needed. Both had been in the painting business since themid-1940’s and had experience working on a flat roof to paint a parapetwall. Neither Chase nor Young had used safety belts when performingpainting jobs over a parapet wall, and neither had heard of a painterfalling off a flat roof while painting a parapet. In contrast to thetestimony of Crevier and the compliance officer, both men testified thatthe face of the parapet could safely be painted without extending anysignificant portion of the painter’s body over the edge. Gray’s foreman,Walter Poplawski, and Poulin, who was one of the employees painting theparapet face, agreed with Young and Chase that there was no danger offalling. Poulin testified that he never placed both his arms andshoulders over the edge of the parapet, and that at most he placed hisarm and head and only sometimes part of one shoulder over the parapetedge. John Gray, F.A. Gray’s president, testified that the company hadhad no injuries to painters working from flat roofs.Administrative Law Judge Foster Furcolo affirmed the citation item. Heconcluded that the description of the painting alone–leaning over a15-18 inch parapet and reaching to paint 2 feet down on the face of a 60foot high building–is clear and convincing evidence of a hazardouscondition for which safety belts were required.Commissioner Cleary would affirm the judge’s decision. In determiningwhether a hazardous condition exists under the standard, CommissionerCleary would apply a reasonable person test. This test, with which themajority of courts are in basic agreement, requires that a reasonableperson familiar with the factual circumstances surrounding the allegedlyhazardous condition, including any facts unique to a particularindustry, would recognize a hazard warranting the use of personalprotective equipment. Industry custom and practice aid in making adetermination but are not controlling. L. R. Willson & Sons, Inc. v.OSHRC, 698 F.2d 507, 513 at n.17 (D.C. Cir. 1983); Austin Building Co.v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981); Voegele Co. v. OSHRC,625 F.2d 1075, 1078-1079 (3rd Cir. 1980); General Dynamics Corp. v.OSHRC, 599 F.2d 453, 464 (1st Cir. 1979); Bristol Steel & Iron Works,Inc. v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1977).Applying this test, Commissioner Cleary concludes that an obvious hazardexisted for which the use of personal protective equipment was required.He agrees with the judge that the description of the employees’ worktogether with the picture of F. A. Gray’s employee leaning over the wallis conclusive evidence that the employees were exposed to a fallinghazard. See Voegele Co., 79 OSAHRC 76\/A2, 7 BNA 1713, 1979 CCH OSHD ?23,860 (No. 76-2199, 1979), aff’d, 625 F.2d 1075 (3rd Cir. 1980); JensenConstruction Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979). The photographalone belies any testimony by F. A. Gray’s witnesses that the employeeswere not in a position to fall. It clearly shows that the employee’sbody was over the parapet a significant degree. and it is evident that afall could occur. In attempting to paint the wall with a long roller anda brush, an employee could reach over too far and lose his balance.In Commissioner Cleary’s view the standard is designed to protectagainst a careless or accidental move by an employee. Cf. Pass &Seymour, Inc., 79 OSAHRC 101\/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ?24,074 (No. 76-4520, 1979)(machine guarding standard intended to protectagainst employee behavior caused by bad judgment or inattention). Inthis case, the parapet did not prevent an employee from losing hisbalance nor did it serve as a barrier to prevent a fall.Chairman Buckley would reverse the judge and vacate the item. The testto be applied in determining whether \”there Is exposure to hazardousconditions\” within the meaning of section 1926.28(a) is whether areasonable person familiar with the factual circumstances surroundingthe allegedly hazardous condition, including any facts unique to aparticular industry, would recognize a hazard. The Fifth Circuit holdsthat industry custom and practice is dispositive, while the Commissionand some other circuits have held that such practice is not dispositive.Whether industry custom and practice are dispositive on the issue ofwhat a reasonable person familiar with the circumstances and theindustry would recognize as a hazard is not relevant in this case.[[5]]The Secretary has not offered any evidence to rebut the testimony ofindustry experts that no hazard existed and has failed to meet thesubstantial burden he would bear in establishing that an industry’scustom and practice was unreasonable. As the Sixth Circuit observed inRay Evers Welding Co. v. OSHRC, 625 F.2d 726 (6th Cir. 1980), ifindustry practices are not to be found controlling because the entireindustry is negligent, \”such negligence on the part of a whole industrycannot be lightly presumed. . . . It must be proven.\” 625 F.2d at 732.In this case four men–all very familiar with the painting industry andwith painting over parapet’s from, a flat roof–testified they did notbelieve that painters who were working over a parapet on a flat roofwere exposed to a falling hazard. They stated that they had not wornsafety belts when painting in this situation. Two of these men, ArthurChase and Maynard Young, had worked in the painting business since the1940’s. The other two men, Walter Poplawski and Claude Poulin, had beenpainters for 24 years and 9 years, respectively. These witnesses gave arational explanation for their opinion: They believed that the width andheight of the parapet provided adequate protection and that employeesdid not extend beyond it a sufficient distance to be exposed to afalling hazard, even in the hypothetical event of a fainting spell.All of Gray’s witnesses were more qualified than the compliance officerto testify as to industry recognition of a hazard. The complianceofficer had no familiarity with the painting industry. The inspection orF. A. Gray’s worksite was his first inspection of painting on a roof.His opinion that the work was hazardous was also based on an exaggeratedaccount of the employees’ position–that ‘they were \”hanging out overthe edge of the parapet,\” when in fact only a small portion of theirupper body extended beyond the parapet. Even though Crevier hadexperience in the painting industry, his single opinion that a hazardexisted does not outweigh the opinions of the industry representativesand F. A. Gray’s employees. Indeed, Crevier’s testimony is particularlydifficult to credit because it was based on the mistaken belief that thebodies of the employee here were leaning more than half-way over theedge of the parapet. [[6]]Nor is there evidence in the record of any injuries to employees fromworking on flat roofs with parapets. See General Motors Corp., G. M.Parts Div., 84 OSAHRC , 11 BNA OSHC 2062, 2066, 1984 CCH OSHD ? 26,961,p. 34,611 (No. 78-1443 & 79-4478, 1984), appeal transferred, No. 84-1680(1st Cir. Oct. 15, 1984). On the contrary, the record shows that F. A.Gray had not experienced any injuries from working over a parapet andneither Maynard Young, Arthur Chase, nor Walter Poplawski was aware of apainter falling over a parapet while painting from a flat roof.For the above reasons, Chairman Buckley concludes that the Secretary hasfailed to show that a reasonable person familiar with the circumstancesat A. Gray’s worksite would recognize a hazard requiring the use ofsafety belts. Accordingly, Chairman Buckley would vacate item 1.The Commissioners agree to affirm the judge’s vacation of item 2A,alleging a violation of section 1926.451(i)(8). The two Commissionmembers are divided on whether the judge erred in affirming item 1,alleging a violation of section 1926.28(a). Official action by theCommission can be taken, however, with the affirmative vote of at leasttwo members. Section 12(f) of the Act, 29 U.S.C. ? 661(e). To resolvethis impasse and permit the case to proceed to a final resolution, themembers have agreed to affirm the judge’s disposition of item 1 butaccord that portion of the judge’s decision no precedential value. SeeLife Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78CCH OSHD ? 22,313 (No. 13910, 1977), aff’d sub nom. Moore v. OSHRC, 591F.2d 991 (4th Cir. 1979). Accordingly, the judge’s disposition of items1 and 2A we affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 26 1985————————————————————————FOOTNOTES:[[1]] As created by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Because of a vacancy, theCommission currently has only two members.[[2]] ? 1926.451 Scaffolding.(i) (Swinging scaffolds) two-point suspension.(8) On suspension scaffolds designed for a working load of 500 pounds,no more than two men shall be permitted to work at one time. Onsuspension scaffolds with a working load of 750 pounds, no more thanthree men shall be permitted to work at one time. Each employee shall beprotected by an approved safety life belt attached to a lifeline . . . .[[3]] The evidence does not support the Secretary’s argument that ReiderHansen had not worn his belt In the past. Hansen testified that he wasnot wearing a safety belt when observed by the compliance officerbecause \”the building is a very easy building to rig.\” From this, theSecretary argues that Hansen must not have worn a safety belt on otheroccasions. However, Hansen stated that \”I always wore one [a safetybelt]\” on prior occasions. He explained that all previous buildings were\”bad anyway\” in that they had overhangs, slanted roofs or obstructionsthat made the jobs dangerous. The judge credited Hansen’s testimony thathe wore a belt in the past. That finding is entitled to deference. C.Kaufman Inc. 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297, 1977-1978 CCH OSHD ?22,481, p. 27,099 (No. 14249,1978).[[4]] 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 using such equipment to reduce the hazards to the employees.[[5]] Chairman Buckley finds it unnecessary to address the differencebetween the Fifth Circuit test and that employed by the Commission.[[6]] Chairman Buckley would not give any weight to Mr. Crevier’stestimony concerning the practice of employees where a parapet was notpresent because employees working without a parapet are not in asituation comparable to that here.”