“Docket No. 79-2168 SECRETARY OF LABOR, Complainant, v.L.M. SESSLER EXCAVATING & WRECKING, INC., Respondent.OSHRC Docket No. 79-2168DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 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 safety andhealth standard at 29 C.F.R. ? 1926.28(a) because a Sessler employee was not wearing asafety belt while exposed to a fall hazard.\u00a0 The standard states in part that\”[t]he employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditions. . . .\” Administrative Law Judge Worcester vacated the citation on the ground thatthere was insufficient evidence that the employer knew or with the exercise of reasonablediligence could have known that the employee was not wearing his belt.\u00a0 For thereasons that follow, the judge’s decision is affirmed.A Sessler employee, Mr. Gibson, was working on the eighth floor of a buildingthat was undergoing dismantling and demolition. Mr. Gibson’s duties included cutting steelbeams, which were then removed by a crane.\u00a0 During the cutting of one beam, Mr.Gibson stood on a ladder next to an open elevator shaft.\u00a0 According to a statementhand-written by the compliance officer and signed by Mr. McCann, the foreman on the eighthfloor, Mr. McCann had been watching Mr. Gibson but was distracted and looked away.\u00a0He then heard the beam \”snap loose\” and turned to see Mr. Gibson fallingbackwards into the shaft.\u00a0 Mr. Gibson died from the fall.\u00a0 The president of thecompany, Mr. Sessler, testified that when he found Mr. Gibson’s body at the bottom of theshaft, he saw that Mr. Gibson had not been wearing a safety belt.One of the primary disputes at the hearing was whether Sessler knew or withthe exercise of reasonable diligence could have known that Mr. Gibson had not been wearinghis belt.\u00a0 Mr. Sessler had issued safety belts to all employees, had ordered Mr.Gibson to wear his belt, and had warned an employee that he would be laid off if he failedto wear his belt.\u00a0 On the day the violation allegedly occurred, Mr. Sessler hadchecked on the employees’ safety belts and the length of their lifelines.\u00a0 Mr.Sessler also testified that on the day of Mr. Gibson’s fall he had seen Mr. Gibson wearinghis safety belt and did not know when or why Mr. Gibson had removed it.The Secretary did not call Mr. Gibson’s foreman, Mr. McCann, as a witness,even though he was available to testify.\u00a0 Instead, he submitted the foreman’sunsworn, written statement and asked the compliance officer questions about what he hadlearned while talking to Mr. McCann.\u00a0 Neither the foreman’s statement nor thecompliance officer’s account of his conversation with Mr. McCannindicates when Mr. Gibson removed his belt, whether Mr. McCann was aware before theaccident that Mr. Gibson was no longer wearing one, whether Mr. McCann was in a positionto see that Mr. Gibson had removed his belt, or whether Mr. McCann had failed to checkwhether Mr. Gibson was wearing his belt.\u00a0 The statement simply noted:\u00a0 \”Theelevator shaft was not 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.\u00a0 The judge noted in particular that thewritten statement signed by the foreman is silent on whether the foreman knew before theaccident that Mr. Gibson had removed his belt.On review, the Secretary argues that the judge’s approach to and evaluationof the evidence was erroneous.\u00a0 He urges that we interpret the foreman’s writtenstatement differently than the judge did and find that the written statement shows thatthe foreman knew that Mr. Gibson was not wearing his safety belt.\u00a0 He also arguesthat foreman McCann knew that Mr. Gibson \”habitually did not wear a safety belt . . .and disregarded instructions to wear a belt.\”\u00a0 Finally, the Secretary maintainsthat the wearing of safety belts would have been feasible.We concur in Judge Worcester’s conclusion that the evidence of knowledge wasinsufficient.\u00a0 Commission precedent requires the Secretary to prove as part of hiscase-in-chief that an employer knew or with the exercise of reasonable diligence couldhave known of a violative condition.\u00a0 See Prestressed Systems, Inc., 81OSAHRC 43\/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD ? 25,358, p. 31,500 (No. 16147, 1981).\u00a0As to actual knowledge, there is no evidence that Mr. Sessler, the president of thecompany, knew that Mr. Gibson was not wearing his belt.\u00a0 Nor was Mr. McCann, theforeman who was working on the eighth floor when the accident occurred, shown to haveknown prior to the accident that Mr. Gibson was not wearing his belt.\u00a0 The Secretaryintroduced no evidence to show when the safety belt was removed or even that the foremanwas in a position to see that Mr. Gibson had removed his belt.\u00a0 As Judge Worcesternoted, the foreman’s written statement is silent on that point, and the Secretary nevercalled the foreman to testify, though he could have done so.\u00a0 To find actualknowledge would therefore require us to speculate from the foreman’s written statementwhich, as the judge noted, leaves much to be desired in the way of clarity andcompleteness.We also find insufficient evidence that Sessler could have known, with theexercise of reasonable diligence, that Mr. Gibson was not wearing his safety belt.\u00a0Mr. Sessler had issued safety belts to the employees and had warned them that theywould not be permitted to work if they did not wear the belts.\u00a0 Mr. Sessler hadchecked that day that the belts were being worn and that the lanyards were the correctlength, and found that Mr. Gibson was wearing his belt.\u00a0 The burden was on theSecretary to establish by a preponderance of the evidence that reasonable diligence wasnot exercised.\u00a0 Inasmuch as there is no evidence of when Mr. Gibson removed his beltor that Mr. McCann, the foreman, failed to check whether Mr. Gibson was wearing his belt,the record does not support a finding that the foreman could reasonably have known thatMr. Gibson had removed his belt.\u00a0 For the foregoing reasons, we find insufficientevidence that the employer could have known of Mr. Gibson’s behavior through the exerciseof reasonable diligence.Accordingly, the judge’s decision vacating citation 2 is affirmed. FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUN 19 1984 ROWLAND, Chairman, concurring:I agree that the citation should be vacated because the record does not showby a preponderance of the evidence that Sessler knew or with the exercise of reasonablediligence could have known that Mr. Gibson had removed his belt.I would vacate the citation for an additional reason, however.\u00a0 Contraryto the Secretary’s argument, the record does not show the feasibility of safety belts.\u00a0Inasmuch as section 1926.28(a) does not prescribe objective criteria for determiningan employer’s duty, the Secretary must show that the use of safety belts wasfeasible.\u00a0 See Prestressed Systems, Inc., 82 OSAHRC 34\/C7, 10 BNA OSHC1816, 1982 CCH OSHD ? 26,124 (No. 76-4278, 1982)(Rowland, Chairman, dissenting), andcases cited; 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); RayEvers Welding Co. v. OSHRC, 625 F.2d 726, 733 (6th Cir. 1980); Bristol Steel &Iron Works v. OSHRC, 601 F.2d 717, 723-4 (4th Cir. 1979).\u00a0 I note that althoughthe Secretary stated to the judge that he would prove feasibility, he never introducedevidence on the point. [[1]]\u00a0 The Secretary introduced no evidence of where a lanyardcould have been attached while the building’s beams were being dismantled, even though thequestion of where to attach a lanyard is one of the most common in safety belt cases andthe usefulness of safety belts during the dismantling of steel beams may be open todoubt.\u00a0 See Industrial Steel Erectors, 74 OSAHRC 2\/E5, 1 BNAOSHC 1497, 1973-74 CCH OSHD ? 17,136 (No. 703, 1974) (greater hazard from steel beamssuddenly springing loose).\u00a0 I therefore conclude that the citation must be vacatedfor lack of evidence that the use of safety belts would have been feasible.[[2]]CLEARY, Commissioner, dissenting:The preponderance of all the evidence in this record shows that this employerfailed to require Gibson to use his safety belt.\u00a0 The citation should therefore beaffirmed.Chairman Rowland would vacate this citation based on his own view that theSecretary must prove that safety belts are feasible and that he failed to do so in thiscase.\u00a0 The Commission has several times considered whether this extra burden of proofneed be imposed on the Secretary in every safety belt case brought under section1926.28(a) and has concluded that it need not.\u00a0 Instead, the Commission has allocatedto the Secretary–the person most familiar with what equipment would be appropriate toabate a hazard–the burden of identifying the appropriate form of personal protectiveequipment.\u00a0 The Commission concomitantly allocated to the employer–the person mostfamiliar with the particular circumstances of the work–the burden of showing that theidentified form of equipment could not have been used under the circumstances.\u00a0 S&HRiggers & Erectors Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480(No. 15855, 1979), rev’d on another ground, 659 F.2d 1273 (5th Cir. 1981). \u00a0This allocation has worked well.\u00a0 It not only conforms the burdens of proof to theparties’ respective abilities and incentives to produce evidence, but it also forestallsthe possibility that the Secretary will be required to introduce such evidence even whenfeasibility is not seriously disputed by the employer.\u00a0 Yet, in this case, oneCommission member has voted to vacate this citation on that ground even though theemployer never claimed that safety belts were not feasible.\u00a0 Indeed, such a claimwould be flatly inconsistent with Sessler’s assertion that Gibson was required to wear hisbelt and foreman McCann’s written statement that Gibson would be alive if he had worn hisbelt.\u00a0 I would therefore let Commission precedent control this issue and focus onwhat the parties do dispute.Both Chairman Rowland and Commissioner Buckley find that the judge correctlyconcluded that the Secretary had failed to show that Sessler had actual or constructiveknowledge that Gibson was not wearing a safety belt.\u00a0 I cannot agree.\u00a0 Therecord clearly shows that foreman McCann had actual knowledge that Gibson was not wearinga belt.\u00a0 First, the Secretary is correct in maintaining that the foreman’s writtenstatement does prove the point.\u00a0 In his statement, the foreman described the courseof events that led to Gibson’s death.\u00a0 He then described the physical circumstancesas follows:\u00a0 \”The elevator shaft was not covered over and Gibson wasn’t wearinga safety belt.\u00a0 Some days he would wear the belt and other days he wouldn’t . . ..\” The statement’s tenor, order of narration, and treatment of Gibson’s failure towear the belt as a known, background fact–as notorious as the lack of a cover on theelevator shaft–are inconsistent with any hypothesis that McCann learned of these factsafter Gibson fell.Second, there is ample evidence that McCann was close enough to tell whetherGibson was wearing his belt.\u00a0 Safety belts are distinctive–particularly when tiedoff–and one can tell from a distance whether an employee 13 working with one. [[3]] ThisCommission has decided any number of cases in which distant observers could tell whetheran employee was working without a safety belt.[[4]]\u00a0 Here, foreman McCann looked directlyat the employee, watched him work, and coordinated Gibson’s dismantling activity with thatof the crane operator.\u00a0 That McCann was close enough to tell whether Gibson waswearing his belt is demonstrated by his written statement, which relates that Gibson\”had put chokers around the beam,\” \”hooked it to the crane load,\”\”had cut one end of the beam loose,\” and \”moved the ladder over . . . tocut the other end.\”\u00a0 McCann was obviously observing Gibson working, and theseare not the words of a person too far away to tell whether Gibson was wearing a safetybelt.In any event, there is sufficient evidence that McCann could have known ofthe violation with the exercise of reasonable diligence. It may be true that the presidentof the company did not fully appreciate Gibson’s propensity to not wear a safety beltuntil after the accident.\u00a0 There is, however, ample evidence that the foreman knew ofGibson’s attitude and behavior.\u00a0 The foreman’s own written statement declares that\”[s]ome days [Gibson] would wear the belt and other days he wouldn’t.\u00a0 I toldhim [at] different times to wear his belt and sometimes he would put it on and other timeshe wouldn’t.\”\u00a0 Inasmuch as the foreman was working in close proximity to anemployee he knew had disdained the wearing of safety belts and knew that the employee wasworking right next to an open elevator shaft, reasonable diligence required him to take alook to see 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.\u00a0 When an employerdecides to protect his employees from fall hazards by relying on the wearing of safetybelts, his supervisory employees must understand that they are to insist upon their use,by discipline if necessary.\u00a0 A rule prescribed by upper management but leftunenforced by foreman and lower-level supervisors is in a sense worse than no rule at all.\u00a0 It conveys to employees the impression that OSHA standards are not to be takenseriously and that the supervisors believe that the hazard to which the employee isexposed does not truly warrant the use of protective equipment.\u00a0 McCann’s writtenstatement shows that he indulged the deceased employee in his desire to choose the time towear his belt.\u00a0 That is not permitted by the Act.\u00a0 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 in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 so inaccordance with the view of former Commissioner Barnako that such evidence was necessary.\u00a0 The Secretary cited Commissioner Barnako’s concurring opinion in Jensen Constr.Co., 79 OSAHRC 49\/D3, 7 BNA OSHD 1477, 1979 CCH OSHD ? 23,664 (No. 76-1538, 1979).[[2]] The dissenting opinion relies on Sessler’s general requirement thatsafety belts be worn and the foreman’s statement that a safety belt would have preventedthe fatality as indications that Sessler does not dispute the feasibility of belts. \u00a0Mr. Sessler’s testimony does not establish that safety belts necessarily would have beenfeasible in all circumstances, nor did Mr. Sessler state that Mr. Gibson could have used asafety belt during the particular operation he was performing at the time of his fall.The foreman’s statement that use of a safety belt would have prevented Mr.Gibson’s fall assumes but also does not establish that Mr. Gibson could have used a safetybelt in the circumstances.\u00a0 The Secretary’s burden is to show not only that a safetybelt would have been an effective means of employee protection if it were used but also toshow specifically how its use could have been implemented during the work operation inquestion.\u00a0 See Chevron Oil Co., 83 OSAHRC 19\/B2, 11 BNA OSHC 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 Safety Council, AccidentPrevention Manual for Industrial Operations 1185-1189 (6th ed. 1973).[[4]] E.g., Ted Wilkerson , Inc., 81 OSAHRC 70\/D8, 9 BNA OSHC2012, 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)(atleast 30 feet), aff’d, 676 F.2d 1065 (5th Cir. 1982).”