“Docket No. 83-0517 SECRETARY OF LAB0R,Complainant,v.F. A. GRAY, INC., Respondent.OSHRC Docket No. 83-0517DECISIONBefore: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).The question in this case is whether F. A. Gray violated 29 C.F.R. ? 1926.28(a) and1926.451(i)(8) when its employees were working at the edge of a roof and on a two-pointsuspension scaffold without using safety belts. Chairman Buckley and Commissioner Clearyagree that the citation item alleging a violation of section 1926.451(i)(8) should bevacated. They disagree, however, on whether the employer violated section 1926.28(a).[[1]]Item 2A: Section 1926.451(i)(8)–Safety Belts on ScaffoldItem 2A of the citation alleges that F. A. Gray violated section 1926.451(i)(8), whichrequires that employees working on two-point suspension scaffolds \”be protected by anapproved safety \”Life belt attached to a lifeline.\” [[2]] A compliance officerof the Occupational Safety and Health Administration, William Chase, observed two Grayemployees, Reider Hansen and Chuck Hansen, on a two-point suspension scaffold withoutsafety belts and lifelines. The employees were painting the exterior wall of a Holiday Innbuilding in Portsmouth, New Hampshire. The staging of the scaffold was 50 feet in the air.The compliance officer testified that, if the staging fell, the employees could beseriously injured or killed.The parties agree that the employees should have been wearing safety belts. They disagree,however, as to whether the employer should be held liable for the employees’ failure to doso. The Secretary argued, that Claude Poulin, Gray’s leadman at the Holiday Inn jobsite,was a supervisory employee who knew that the employees had been working on the scaffoldwithout belts. According to the Secretary, Poulin’s knowledge can be imputed to Gray. Grayargues that Poulin was not a supervisory employee. It asserts that it had established asafety rule requiring the use of safety belts and that none of its supervisors knew thatthe employees on the scaffold were not wearing their belts.Judge Furcolo vacated the citation, agreeing with Gray that Poulin was not a foreman whoseknowledge could be imputed to the employer. The judge also concluded that Gray had aneffectively communicated and enforced rule requiring its employees to wear safety beltswhen working on the scaffold. Finding that Gray had established an unpreventable employeemisconduct defense, the judge vacated citation. Chairman Buckley and Commissioner Clearyagree that the judge’s decision should be affirmed, although for different reasons.Chairman Buckley would vacate the citation because the violation was unpreventable.Because the purpose of the Act is not to punish infractions, but to prevent safety andhealth hazards in the workplace, unpreventable infractions of safety regulations byemployees are not violations of the Act by an employer. Unpreventable infractions includethose that are unknown to a reasonably diligent employer or are not reasonably predictableor foreseeable. The Secretary contends that the issue of a violation can be decided bydetermining whether Poulin can be characterized as a supervisor whose knowledge is to be\”imputed\” to the employer. By use of the legal fiction of imputation ofknowledge, the Secretary argues that the violation here was within the employer’sknowledge and therefore preventable.The preventability of unsafe work conditions cannot be determined by characterizing anemployee as a supervisor and then applying legal fiction to impute that employee’sknowledge tot he employer. As the United States Court of Appeals for the Third Circuit hasheld, \”[t]he participation of…supervisory personnel may be evidence that anemployer could have foreseen and prevented a violation through the exercise of reasonablediligence, but it will not, standing alone, end the inquiry into foreseeability.\”Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984). The conductand knowledge of supervisors are therefore only one of several factors that must beconsidered in determining whether a condition violative of a standard was preventable. SeeTodd Shipyards Corp., 85 OSAHRC __, 11 BNA OSHC 2177, 2182, 1984 CCH OSHD ? 27,001, p.34,744 ( No. 77-1598, 1984) (Buckley, Chairman, separate opinion). If the violativecondition was not preventable, the employer cannot be found in violation of the Act. HornePlumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570-71 (5th Cir.1976).F. A. Gray’s supervisors Poplawski and Bradford Gray knew that employees would use thescaffolding but reasonably expected that safety belts would be worn in accordance withOSHA standards and company policy. F. A. Gray’s supervisors had informed the employees ofthe requirement to wear belts and had told them they would be disciplined for failure toobey. Gray and Poplawski each visited the site at. random once or twice a day and neitherhad seen the employees working on the scaffold without their belts. Indeed, the employeestestified that they had always worn their belts In the past, and Hansen confirmed that hewould have been fired had he not done so.The Secretary argues that Poulin was a supervisor and knew that employees were not wearingbelts. Poulin, although a leadman of the crew, testified that he could not control theactions of his fellow employees and could not have required them to conform to theacknowledged policy of wearing safety belts. Even accepting the Secretary’s argument thatPoulin had supervisory authority for some purposes and should be considered a supervisordoes not establish that the incident was preventable, in view of the uncontrovertedevidence that Poulin’s supervisory authority was not such that he could have prevented hisfellow employees from ignoring the requirement that safety belts be worn. The Secretary’sargument elevates form over analysis, since it ignores the realities of -worksiteauthority in favor of easily applied labels. It is often the case on construction sitesthat there are many \”Supervisors\” with varying levels of authority. It is notenough to show that a \”supervisor\” knew of the violative condition withoutconsidering or analyzing other factors that evidence an employer’s efforts and ability toachieve compliance with the Act. Here, Gray fulfilled its obligations to enforce the Actthrough two of its supervisors who unquestionably had authority to enforce compliance.Chairman Buckley therefore finds that the failure of F. A. Gray’s employees to wear safetybelts was not preventable and he would vacate the citation item.Commissioner Cleary agrees that the citation should be vacated. To prove that an employerviolated the Act, the Secretary must show, among other things, that the employer knew orwith the exercise of reasonable diligence could have known of and prevented the violation.Concrete Construction 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, 4 BNA OSHC 1824, 1976-77 CCH OSHD ? 21,263(No. 8867, 1976). The Secretary makes a prima facie showing of knowledge by proving that asupervisory employee knew of or created the violation because the knowledge and actions ofsupervisory personnel are generally imputed to their employers. See H. E. Wiese, Inc., 82OSAHRC 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. Commissioner Cleary concludes,however, that Poulin was not a supervisor for the purpose of imputing knowledge.Although Poulin identified himself to the compliance officer as the foreman, he admittedat the hearing that this was a designation he used pretty much himself. Poulin did nothave the power to hire or fire and had no responsibility for enforcing safety rules. Hetold the compliance officer that he did not like to tell the other employees what to dobecause they had been at the work longer than he had. Although Poulin had theresponsibility to make sure that all materials needed on the job were present and that theemployees understood the job at hand, foreman Walter Poplawski and vice president BradfordGray were in charge at the site. They tried to visit the job at least once, if not twice,a day and were responsible for safety. Since Poulin was only entrusted with minimalsupervision and both Poplawski and Gray visited the site regularly, Poulin was not asupervisor for the purpose of imputing knowledge. 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 reasonably diligent in attemptingto prevent the violation. First, the employer had an effectively communicated work rule.John Gray, F. A. Gray’s president, explained that after receiving a citation in November1982 alleging a \”serious\” violation for the failure of two employees workingfrom a two-point suspension scaffold to wear safety belts, he implemented a new safetyrule: The decision to wear safety belts would no longer be left to the independentjudgement of its journeymen painters; instead, the employees were required to wear beltswhen working on a two-point suspension scaffold. Although Gray never committed the rule towriting, the employees were informed of the rule at the beginning of each job by Gray’ssupervisors. There is no evidence that the employees did not understand the rule. The onlytwo nonsupervisory employees who testified at the hearing, Reider Hansen and ClaudePoulin, stated that they were aware of the safety belt rule and that they had worn safetybelts on prior occasions.[[3]] See Jones & Laughlin Steel Corp., 82 OSAHRC 34\/A2, 10BNA OSHC 1778, 1982 CCH OSHD ? 26,128 (No. 76-2636, 1982) (substance, not form, of safetyrules are significant).The Secretary argues that Gray did not adequately enforce its safety program. He maintainsthat the supervisors were rarely present on the jobsite and that the observation ofviolations was largely incidental. Commissioner Cleary concludes that the degree ofsupervision was adequate. Vice president Bradford Gray stated that random inspections weremade at least once, if not twice, a day to see \”that the employees were using theirsafety equipment. Foreman Poplawski also inspected the worksite at random at least twice aday and sometimes more than twice a day. If safety belt violations had been occurring,they would have been easily observed. Yet, neither Poplawski nor Bradford Gray hadobserved employees without their belts. Poplawski personally inspected the jobsite whenClaude Poulin and Al Gerald’s were working on the scaffold and had not observed aviolation of the safety belt rule. Bradford Gray was not aware of any violations of thesafely belt rule by any employees before the inspection date and neither he nor Poplawskiwere aware that employees were not wearing belts on the inspection date. Poplawski hadtold employees \”there would be discipline\” if they failed to follow the rules.Bradford Gray had reprimanded employees for expressing disagreement or not complying withthe safety rules and testified that employees had been dismissed. Both Claude Poulin andReider Hansen were experienced employees. Raider Hansen stated that if either BradfordGray, John Gray or Poplawski knew he was not wearing a belt, he probably would have beenfired. Commissioner Cleary concludes that Gray was reasonably diligent in its efforts toprevent the violation. See Capital Electric 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 wouldvacated item 2A.Item 1: Section 1926.28(a)–Safety BeltsCitation item 1 alleges that F. A. Gray violated section 1926.28(a)[[4]] in that itsemployees did not wear safety belts while they were painting the exterior of a wall at theedge of a flat roof of the Holiday Inn building. There was a parapet at the edge of theroof that was about 12 inches wide; the interior height was 15 to 18 inches. The roof was60 feet above the ground. When compliance officer Chase visited the site, two Grayemployees, leadman Poulin and Al Gerald’s, a laborer, were painting an area about 2 feetbelow the top of the parapet on the outer face of the building. To perform this work theyused a roller with a handle approximately 23 inches long, knelt on the roof and leaned outagainst the parapet, resting their chests on the foot-wide top surface of the parapet. Aphotograph taken by the compliance officer shows an employee kneeling on the roof behindthe parapet, bracing himself with his left hand. His right hand was extended over theparapet to paint the exterior of the two-foot high section of exterior wall.The evidence is conflicting as to whether a hazard existed for which safety belts wereneeded. The compliance officer and John Crevier, general representative of theInternational Brotherhood of Painters and Allied Trades and a painter for sixteen years,testified that the employees should have been wearing protective equipment. In complianceofficer Chase’s opinion, it would have been easy for the employees to fall while paintingbecause the employees \”were hanging out over the edge of the parapet….\” Theytestified also that the employees were in an awkward position and could have becomedisoriented. Crevier based his opinion on his belief that the entire torso of an employeewould be leaning out over the parapet. He further stated that he had twice painted parapetwalls and had worn a safety belt both times. He also testified that employees in shipyardsand other areas use safety belts when painting on flat roofs and tanks where there is adanger of falling. However, he admitted he had not seen anyone painting the face of aparapet at those sites.Two painting contractors who competed with F. A. Gray, Arthur Chase and Maynard Young, didnot believe that a hazard existed or that safety belts were needed. Both had been in thepainting business since the mid-1940’s and had experience working on a flat roof to painta parapet wall. Neither Chase nor Young had used safety belts when performing paintingjobs over a parapet wall, and neither had heard of a painter falling off a flat roof whilepainting a parapet. In contrast to the testimony of Crevier and the compliance officer,both men testified that the face of the parapet could safely be painted without extendingany significant portion of the painter’s body over the edge. Gray’s foreman, WalterPoplawski, and Poulin, who was one of the employees painting the parapet face, agreed withYoung and Chase that there was no danger of falling. Poulin testified that he never placedboth his arms and shoulders over the edge of the parapet, and that at most he placed hisarm and head and only sometimes part of one shoulder over the parapet edge. John Gray,F.A. Gray’s president, testified that the company had had no injuries to painters workingfrom flat roofs.Administrative Law Judge Foster Furcolo affirmed the citation item. He concluded that thedescription of the painting alone–leaning over a 15-18 inch parapet and reaching to paint2 feet down on the face of a 60 foot high building–is clear and convincing evidence of ahazardous condition for which safety belts were required.Commissioner Cleary would affirm the judge’s decision. In determining whether a hazardouscondition exists under the standard, Commissioner Cleary would apply a reasonable persontest. This test, with which the majority of courts are in basic agreement, requires that areasonable person familiar with the factual circumstances surrounding the allegedlyhazardous condition, including any facts unique to a particular industry, would recognizea hazard warranting the use of personal protective equipment. Industry custom and practiceaid in making a determination 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.2d1063, 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 hazard existed for whichthe use of personal protective equipment was required. He agrees with the judge that thedescription of the employees’ work together with the picture of F. A. Gray’s employeeleaning over the wall is 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); Jensen Construction Co. v. OSHRC,597 F.2d 246 (10th Cir. 1979). The photograph alone belies any testimony by F. A. Gray’switnesses that the employees were not in a position to fall. It clearly shows that theemployee’s body was over the parapet a significant degree. and it is evident that a fallcould occur. In attempting to paint the wall with a long roller and a brush, an employeecould reach over too far and lose his balance.In Commissioner Cleary’s view the standard is designed to protect against a careless oraccidental move by an employee. Cf. Pass & Seymour, Inc., 79 OSAHRC 101\/C13, 7 BNAOSHC 1961, 1979 CCH OSHD ? 24,074 (No. 76-4520, 1979)(machine guarding standard intendedto protect against employee behavior caused by bad judgment or inattention). In this case,the parapet did not prevent an employee from losing his balance nor did it serve as abarrier to prevent a fall.Chairman Buckley would reverse the judge and vacate the item. The test to be applied indetermining whether \”there Is exposure to hazardous conditions\” within themeaning of section 1926.28(a) is whether a reasonable person familiar with the factualcircumstances surrounding the allegedly hazardous condition, including any facts unique toa particular industry, would recognize a hazard. The Fifth Circuit holds that industrycustom and practice is dispositive, while the Commission and some other circuits have heldthat such practice is not dispositive. Whether industry custom and practice are dispositive on the issue of what a reasonableperson familiar with the circumstances and the industry would recognize as a hazard is notrelevant in this case.[[5]] The Secretary has not offered any evidence to rebut thetestimony of industry experts that no hazard existed and has failed to meet thesubstantial burden he would bear in establishing that an industry’s custom and practicewas unreasonable. As the Sixth Circuit observed in Ray Evers Welding Co. v. OSHRC, 625F.2d 726 (6th Cir. 1980), if industry practices are not to be found controlling becausethe entire industry 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 and with painting overparapet’s from, a flat roof–testified they did not believe that painters who were workingover a parapet on a flat roof were exposed to a falling hazard. They stated that they hadnot worn safety belts when painting in this situation. Two of these men, Arthur Chase andMaynard Young, had worked in the painting business since the 1940’s. The other two men,Walter Poplawski and Claude Poulin, had been painters for 24 years and 9 years,respectively. These witnesses gave a rational explanation for their opinion: They believedthat the width and height of the parapet provided adequate protection and that employeesdid not extend beyond it a sufficient distance to be exposed to a falling hazard, even inthe hypothetical event of a fainting spell.All of Gray’s witnesses were more qualified than the compliance officer to testify as toindustry recognition of a hazard. The compliance officer had no familiarity with thepainting industry. The inspection or F. A. Gray’s worksite was his first inspection ofpainting on a roof. His opinion that the work was hazardous was also based on anexaggerated account of the employees’ position–that ‘they were \”hanging out over theedge of the parapet,\” when in fact only a small portion of their upper body extendedbeyond the parapet. Even though Crevier had experience in the painting industry, hissingle opinion that a hazard existed does not outweigh the opinions of the industryrepresentatives and F. A. Gray’s employees. Indeed, Crevier’s testimony is particularlydifficult to credit because it was based on the mistaken belief that the bodies of theemployee here were leaning more than half-way over the edge of the parapet. [[6]]Nor is there evidence in the record of any injuries to employees from working on flatroofs with parapets. See General Motors Corp., G. M. Parts Div., 84 OSAHRC , 11 BNA OSHC2062, 2066, 1984 CCH OSHD ? 26,961, p. 34,611 (No. 78-1443 & 79-4478, 1984), appealtransferred, No. 84-1680 (1st Cir. Oct. 15, 1984). On the contrary, the record shows thatF. A. Gray had not experienced any injuries from working over a parapet and neitherMaynard Young, Arthur Chase, nor Walter Poplawski was aware of a painter falling over aparapet while painting from a flat roof.For the above reasons, Chairman Buckley concludes that the Secretary has failed to showthat a reasonable person familiar with the circumstances at A. Gray’s worksite wouldrecognize a hazard requiring the use of safety belts. Accordingly, Chairman Buckley wouldvacate item 1.The Commissioners agree to affirm the judge’s vacation of item 2A, alleging a violation ofsection 1926.451(i)(8). The two Commission members are divided on whether the judge erredin 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 least two members.Section 12(f) of the Act, 29 U.S.C. ? 661(e). To resolve this impasse and permit the caseto proceed to a final resolution, the members have agreed to affirm the judge’sdisposition of item 1 but accord that portion of the judge’s decision no precedentialvalue. See Life Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD? 22,313 (No. 13910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).Accordingly, the judge’s disposition of items 1 and 2A we affirmed.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY DATED: APR 26 1985FOOTNOTES: [[1]] As created by the Act, the Commission is composed of three members.Section 12(a), 29 U.S.C. ? 661(a). Because of a vacancy, the Commission currently hasonly 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 twomen shall be permitted to work at one time. On suspension scaffolds with a working load of750 pounds, no more than three men shall be permitted to work at one time. Each employeeshall be protected by an approved safety life belt attached to a lifeline . . . .[[3]] The evidence does not support the Secretary’s argument that Reider Hansen had notworn his belt In the past. Hansen testified that he was not wearing a safety belt whenobserved by the compliance officer because \”the building is a very easy building torig.\” From this, the Secretary argues that Hansen must not have worn a safety belt onother occasions. However, Hansen stated that \”I always wore one [a safety belt]\”on prior occasions. He explained that all previous buildings were \”bad anyway\”in that they had overhangs, slanted roofs or obstructions that made the jobs dangerous.The judge credited Hansen’s testimony that he wore a belt in the past. That finding isentitled to deference. C. Kaufman Inc. 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297, 1977-1978CCH 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 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.[[5]] Chairman Buckley finds it unnecessary to address the difference between the FifthCircuit test and that employed by the Commission.[[6]] Chairman Buckley would not give any weight to Mr. Crevier’s testimony concerning thepractice of employees where a parapet was not present because employees working without aparapet are not in a situation comparable to that here.”