“SECRETARY OF LABOR,Complainant,v.L.M. SESSLER EXCAVATING & WRECKING, INC.,Respondent.OSHRC Docket No. 79-2168_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.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. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor issued a citation alleging that L.M. SesslerExcavating & Wrecking, Inc. (\”Sessler\”) violated the construction safetyand health standard at 29 C.F.R. ? 1926.28(a) because a Sessler employeewas not wearing a safety belt while exposed to a fall hazard. Thestandard states in part that \”[t]he employer is responsible forrequiring the wearing of appropriate personal protective equipment inall operations where there is an exposure to hazardous conditions . . ..\” Administrative Law Judge Worcester vacated the citation on the groundthat there was insufficient evidence that the employer knew or with theexercise of reasonable diligence could have known that the employee wasnot wearing his belt. For the reasons that follow, the judge’s decisionis affirmed.A Sessler employee, Mr. Gibson, was working on the eighth floor of abuilding that was undergoing dismantling and demolition. Mr. Gibson’sduties included cutting steel beams, which were then removed by acrane. During the cutting of one beam, Mr. Gibson stood on a laddernext to an open elevator shaft. According to a statement hand-writtenby the compliance officer and signed by Mr. McCann, the foreman on theeighth floor, Mr. McCann had been watching Mr. Gibson but was distractedand looked away. He then heard the beam \”snap loose\” and turned to seeMr. Gibson falling backwards into the shaft. Mr. Gibson died from thefall. The president of the company, Mr. Sessler, testified that when hefound Mr. Gibson’s body at the bottom of the shaft, he saw that Mr.Gibson had not been wearing a safety belt.One of the primary disputes at the hearing was whether Sessler knew orwith the exercise of reasonable diligence could have known that Mr.Gibson had not been wearing his belt. Mr. Sessler had issued safetybelts to all employees, had ordered Mr. Gibson to wear his belt, and hadwarned an employee that he would be laid off if he failed to wear hisbelt. On the day the violation allegedly occurred, Mr. Sessler hadchecked on the employees’ safety belts and the length of theirlifelines. Mr. Sessler also testified that on the day of Mr. Gibson’sfall he had seen Mr. Gibson wearing his safety belt and did not knowwhen or why Mr. Gibson had removed it.The Secretary did not call Mr. Gibson’s foreman, Mr. McCann, as awitness, even though he was available to testify. Instead, he submittedthe foreman’s unsworn, written statement and asked the complianceofficer questions about what he had learned while talking to Mr.McCann. Neither the foreman’s statement nor the compliance officer’saccount of his conversation with Mr. McCannindicates when Mr. Gibson removed his belt, whether Mr. McCann was awarebefore the accident that Mr. Gibson was no longer wearing one, whetherMr. McCann was in a position to see that Mr. Gibson had removed hisbelt, or whether Mr. McCann had failed to check whether Mr. Gibson waswearing his belt. The statement simply noted: \”The elevator shaft wasnot covered over and Mr. Gibson wasn’t wearing a safety belt.\”Judge Worcester vacated the citation on the ground that the evidence ofknowledge on Sessler’s part was insufficient. The judge noted inparticular that the written statement signed by the foreman is silent onwhether the foreman knew before the accident that Mr. Gibson had removedhis belt.On review, the Secretary argues that the judge’s approach to andevaluation of the evidence was erroneous. He urges that we interpretthe foreman’s written statement differently than the judge did and findthat the written statement shows that the foreman knew that Mr. Gibsonwas not wearing his safety belt. He also argues that foreman McCannknew that Mr. Gibson \”habitually did not wear a safety belt . . . anddisregarded instructions to wear a belt.\” Finally, the Secretarymaintains that the wearing of safety belts would have been feasible.We concur in Judge Worcester’s conclusion that the evidence of knowledgewas insufficient. Commission precedent requires the Secretary to proveas part of his case-in-chief that an employer knew or with the exerciseof reasonable diligence could have known of a violative condition. _See_ _Prestressed Systems, Inc_., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864,1869, 1981 CCH OSHD ? 25,358, p. 31,500 (No. 16147, 1981). As to actualknowledge, there is no evidence that Mr. Sessler, the president of thecompany, knew that Mr. Gibson was not wearing his belt. Nor was Mr.McCann, the foreman who was working on the eighth floor when theaccident occurred, shown to have known prior to the accident that Mr.Gibson was not wearing his belt. The Secretary introduced no evidenceto show when the safety belt was removed or even that the foreman was ina position to see that Mr. Gibson had removed his belt. As JudgeWorcester noted, the foreman’s written statement is silent on thatpoint, and the Secretary never called the foreman to testify, though hecould have done so. To find actual knowledge would therefore require usto speculate from the foreman’s written statement which, as the judgenoted, leaves much to be desired in the way of clarity and completeness.We also find insufficient evidence that Sessler could have known, withthe exercise of reasonable diligence, that Mr. Gibson was not wearinghis safety belt. Mr. Sessler had issued safety belts to the employeesand had warned them that they would not be permitted to work if they didnot wear the belts. Mr. Sessler had checked that day that the beltswere being worn and that the lanyards were the correct length, and foundthat Mr. Gibson was wearing his belt. The burden was on the Secretaryto establish by a preponderance of the evidence that reasonablediligence was not exercised. Inasmuch as there is no evidence of whenMr. Gibson removed his belt or that Mr. McCann, the foreman, failed tocheck whether Mr. Gibson was wearing his belt, the record does notsupport a finding that the foreman could reasonably have known that Mr.Gibson had removed his belt. For the foregoing reasons, we findinsufficient evidence that the employer could have known of Mr. Gibson’sbehavior through the exercise of reasonable diligence.Accordingly, the judge’s decision vacating citation 2 is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUN 19 1984ROWLAND, Chairman, concurring:I agree that the citation should be vacated because the record does notshow by a preponderance of the evidence that Sessler knew or with theexercise of reasonable diligence could have known that Mr. Gibson hadremoved his belt.I would vacate the citation for an additional reason, however. Contraryto the Secretary’s argument, the record does not show the feasibility ofsafety belts. Inasmuch as section 1926.28(a) does not prescribeobjective criteria for determining an employer’s duty, the Secretarymust show that the use of safety belts was feasible. _See_ _PrestressedSystems, Inc._, 82 OSAHRC 34\/C7, 10 BNA OSHC 1816, 1982 CCH OSHD ?26,124 (No. 76-4278, 1982)(Rowland, Chairman, dissenting), and casescited; _L.R. Willson &_ _Sons, Inc. v. OSHRC_, 698 F.2d 507, 513-4 (D.C.Cir. 1983); _Voegele Co. v. OSHRC_, 625 F.2d 1075, 1079-80 (3d Cir.1980); _Ray Evers Welding Co. v. OSHRC_, 625 F.2d 726, 733 (6th Cir.1980); _Bristol Steel & Iron Works v. OSHRC,_ 601 F.2d 717, 723-4 (4thCir. 1979). I note that although the Secretary stated to the judge thathe would prove feasibility, he never introduced evidence on the point.[[1]] The Secretary introduced no evidence of where a lanyard couldhave been attached while the building’s beams were being dismantled,even though the question of where to attach a lanyard is one of the mostcommon in safety belt cases and the usefulness of safety belts duringthe dismantling of steel beams may be open to doubt. _See_ _IndustrialSteel_ _Erectors_, 74 OSAHRC 2\/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD ?17,136 (No. 703, 1974) (greater hazard from steel beams suddenlyspringing loose). I therefore conclude that the citation must bevacated for lack of evidence that the use of safety belts would havebeen feasible.[[2]]CLEARY, Commissioner, dissenting:The preponderance of all the evidence in this record shows that thisemployer failed to require Gibson to use his safety belt. The citationshould therefore be affirmed.Chairman Rowland would vacate this citation based on his own view thatthe Secretary must prove that safety belts are feasible and that hefailed to do so in this case. The Commission has several timesconsidered whether this extra burden of proof need be imposed on theSecretary in every safety belt case brought under section 1926.28(a) andhas concluded that it need not. Instead, the Commission has allocatedto the Secretary–the person most familiar with what equipment would beappropriate to abate a hazard–the burden of identifying the appropriateform of personal protective equipment. The Commission concomitantlyallocated to the employer–the person most familiar with the particularcircumstances of the work–the burden of showing that the identifiedform of equipment could not have been used under the circumstances. _S&H Riggers & Erectors Inc_., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979CCH OSHD ? 23,480 (No. 15855, 1979), _rev’d on another ground_, 659 F.2d1273 (5th Cir. 1981). This allocation has worked well. It not onlyconforms the burdens of proof to the parties’ respective abilities andincentives to produce evidence, but it also forestalls the possibilitythat the Secretary will be required to introduce such evidence even whenfeasibility is not seriously disputed by the employer. Yet, in thiscase, one Commission member has voted to vacate this citation on thatground even though the employer never claimed that safety belts were notfeasible. Indeed, such a claim would be flatly inconsistent withSessler’s assertion that Gibson was required to wear his belt andforeman McCann’s written statement that Gibson would be alive if he hadworn his belt. I would therefore let Commission precedent control thisissue and focus on what the parties do dispute.Both Chairman Rowland and Commissioner Buckley find that the judgecorrectly concluded that the Secretary had failed to show that Sesslerhad actual or constructive knowledge that Gibson was not wearing asafety belt. I cannot agree. The record clearly shows that foremanMcCann had actual knowledge that Gibson was not wearing a belt. First,the Secretary is correct in maintaining that the foreman’s writtenstatement does prove the point. In his statement, the foreman describedthe course of events that led to Gibson’s death. He then described thephysical circumstances as follows: \”The elevator shaft was not coveredover and Gibson wasn’t wearing a safety belt. Some days he would wearthe belt and other days he wouldn’t . . . .\” The statement’s tenor,order of narration, and treatment of Gibson’s failure to wear the beltas a known, background fact–as notorious as the lack of a cover on theelevator shaft–are inconsistent with any hypothesis that McCann learnedof these facts after Gibson fell.Second, there is ample evidence that McCann was close enough to tellwhether Gibson was wearing his belt. Safety belts aredistinctive–particularly when tied off–and one can tell from adistance whether an employee 13 working with one. [[3]] This Commissionhas decided any number of cases in which distant observers could tellwhether an employee was working without a safety belt.[[4]] Here,foreman McCann looked _directly_ at the employee, watched him work, andcoordinated Gibson’s dismantling activity with that of the craneoperator. That McCann was close enough to tell whether Gibson waswearing his belt is demonstrated by his written statement, which relatesthat Gibson \”had put chokers around the beam,\” \”hooked it to the craneload,\” \”had cut one end of the beam loose,\” and \”moved the ladder over .. . to cut the other end.\” McCann was obviously observing Gibsonworking, and these are not the words of a person too far away to tellwhether Gibson was wearing a safety belt.In any event, there is sufficient evidence that McCann could have knownof the violation with the exercise of reasonable diligence. It may betrue that the president of the company did not fully appreciate Gibson’spropensity to not wear a safety belt until after the accident. Thereis, however, ample evidence that the foreman knew of Gibson’s attitudeand behavior. The foreman’s own written statement declares that \”[s]omedays [Gibson] would wear the belt and other days he wouldn’t. I toldhim [at] different times to wear his belt and sometimes he would put iton and other times he wouldn’t.\” Inasmuch as the foreman was working inclose proximity to an employee he knew had disdained the wearing ofsafety belts and knew that the employee was working right next to anopen elevator shaft, reasonable diligence required him to take a look tosee whether a safety belt was being worn.Finally, an employer’s duty to be reasonably diligent requires more thanoccasional checks on employees by the president of a company. When anemployer decides to protect his employees from fall hazards by relyingon the wearing of safety belts, his supervisory employees mustunderstand that they are to insist upon their use, by discipline ifnecessary. A rule prescribed by upper management but left unenforced byforeman and lower-level supervisors is in a sense worse than no rule atall. It conveys to employees the impression that OSHA standards arenot to be taken seriously and that the supervisors believe that thehazard to which the employee is exposed does not truly warrant the useof protective equipment. McCann’s written statement shows that heindulged the deceased employee in his desire to choose the time to wearhis belt. That is not permitted by the Act. _See_ _C_. _Kaufman,Inc._, 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1299, 1977-78 CCH OSHD ? 22,481,p. 27,100-27,101 (No. 14249, 1978).I respectfully dissent.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected]), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The Secretary represented to Judge Worcester that he would do soin accordance with the view of former Commissioner Barnako that suchevidence was necessary. The Secretary cited Commissioner Barnako’sconcurring opinion in _Jensen Constr. Co_., 79 OSAHRC 49\/D3, 7 BNA OSHD1477, 1979 CCH OSHD ? 23,664 (No. 76-1538, 1979).[[2]] The dissenting opinion relies on Sessler’s general requirementthat safety belts be worn and the foreman’s statement that a safety beltwould have prevented the fatality as indications that Sessler does notdispute the feasibility of belts. Mr. Sessler’s testimony does notestablish that safety belts necessarily would have been feasible in allcircumstances, nor did Mr. Sessler state that Mr. Gibson could have useda safety belt during the particular operation he was performing at thetime of his fall.The foreman’s statement that use of a safety belt would have preventedMr. Gibson’s fall assumes but also does not establish that Mr. Gibsoncould have used a safety belt in the circumstances. The Secretary’sburden is to show not only that a safety belt would have been aneffective means of employee protection if it were used but also to showspecifically how its use could have been implemented during the workoperation in question. _See_ _Chevron Oil Co._, 83 OSAHRC 19\/B2, 11 BNAOSHC 1329, 1341, 1983 CCH OSHD ? 26,507, p. 33,731 (No. 10799,1983)(Rowland, Chairman, dissenting), _petition for review filed_, No.83-4371 (5th Cir. June 17, 1983).[[3]] See the illustrations in 2 Int’l Labor Org., _Encyclopedia ofOccupational Safety and Health_ 1984-5 (3rd ed. 1983); Nat’l SafetyCouncil, _Accident Prevention Manual for Industrial Operations_1185-1189 (6th ed. 1973).[[4]] _E.g_., _Ted Wilkerson , Inc_., 81 OSAHRC 70\/D8, 9 BNA OSHC 2012,1981 CCH OSHD ? 25,551 (No. 13390, 1981)(200 feet away); _Morgan &Culpepper, Inc._, 81 OSAHRC 26\/A2, 9 BNA OSHC 1533, 1981 CCH OSHD ?25,293 (No. 9850, 1981)(at least 30 feet), _aff’d_, 676 F.2d 1065 (5thCir. 1982).”