“SECRETARY OF LABOR,Complainant,v.MOORE PETROLEUM SERVICE CO.,RIG NO. 18,Respondent.OSHRC Docket No. 81-2529_DECISION_Before: BUCKLEY, Chairman; CLEARY Commissioner.BUCKLEY, Chairman: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 (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).IThe Moore Petroleum Service Company employs 125 employees who areinvolved in oil well service and workover. On October 14, 1981, fiveMoore employees were removing tubing and fluids from a well at a Texasworksite. In order to perform their assignments, the Moore employeesascended a ladder to a platform on the well 55 feet above the ground. Late in the afternoon, one Moore employee, Norman Smart, started downthe ladder, slipped and fell. Three days later, Smart died from theinjuries he suffered in the fall.Shortly after the fatality, an OSHA compliance officer inspected theworksite. The investigation and undisputed testimony established thatthis oil rig was not equipped with a landing platform. However, Moorenormally provided its employees with ladder climbing safety devices andinstructed the employees in the use of the equipment. The ladderclimbing safety device at this worksite had broken and had not beenreplaced. The safety device had been broken \”at another job\” but it wasnot established exactly how long the device had been broken. Themembers of the Moore safety committee, which consisted of Jesse Mooreand Ron Moore, the owners of the company, and Walter Clark, thesuperintendent and secretary of the corporation, had not been informedand were not aware the device was broken.The Secretary cited Moore for violating the safety standard at 29 C.F.R.? 1910.27(d)(2). The citation alleged:Fixed ladder(s) used to ascend to heights exceeding 20 feet, and wherecages or wells were not provided, were not provided with a landingplatform for each 20 feet of height or fraction thereof:(a) Workover Rig #18 had neither landing platform nor ladder climbingsafety device installed and in use, to reach to or from elevated derricklevels.The administrative law judge vacated the citation. The judge reasonedthat because the employees at the worksite had not informed companymanagement that the ladder safety device was broken the employer did nothave knowledge of the violation. We reverse the administrative lawjudge’s decision and affirm the citation.IIThe standard which the Secretary cited, 29 C.F.R. ? 1910.27(d)(2), provides:When ladders are used to ascend to heights exceeding 20 feet (except onchimneys), landing platforms shall be provided for each 30 feet ofheight or fraction thereof, except that, where no cage, well, or laddersafety device is provided, landing platforms shall be provided for each20 feet of height or fraction thereof. Each ladder section shall beoffset from adjacent sections. Where installation conditions (even fora short, unbroken length) require that adjacent sections be offset,landing platforms shall be provided at each offset.The standard requires that an employer provide landing platformswhenever employees use ladders to ascend to heights exceeding 20 feet. Landing platforms are required even when the employer provides a cage,well or ladder climbing safety device. The only difference is that whenthe employer provides such extra safety equipment the employer need onlyprovide landing platforms for every 30 feet of height instead of theusual 20 feet.Notwithstanding the plain language of the standard requiring landingplatforms and not ladder climbing safety devices, Moore successfullyargued that the citation should be vacated because it did not know thata ladder climbing safety device it provided was inoperable. However,Moore knew that landing platforms were not used and makes no contraryclaim. It is the absence of landing platforms that is prohibited by thestandard, and Moore’s knowledge about the presence or absence of othersafety devices is irrelevant to the determination of a violation of thisstandard.Moore’s argument is based on the Secretary’s apparent preference forladder climbing safety devices over landing platforms as a means of fallprotection. In his brief, the Secretary stated that OSHA considers thelack of a landing platform to be a technical, _de_ _minimis_ violationof 29 C.F.R. ? 1910.27(d)(2) if ladder climbing safety devices are beingused. A violation is _de_ _minimis_ if it bears such a negligiblerelationship to employee health or safety that abatement isunnecessary. _See_ 29 U.S.C. ? 658(a); _Clement Food_ _Co_., OSHRCDocket No. 80-0607 (July 17, 1984). I do not take issue with thepropriety of the Secretary’s policy favoring ladder climbing safetydevices over platforms as a means of fall protection and citing theabsence of platforms as de minimis where ladder climbing safety devicesare in use. The Secretary can properly take the position that theabsence of platforms is _de_ _minimis_ where an equivalent or moreeffective device is in use. OSHA Field Operations Manual ? 224 (1983). The Secretary did not cite Moore for a _de_ _minimis_ violation herebecause the absence of a landing platform coupled with the inoperativecondition of the ladder climbing safety device clearly bears more than anegligible relationship to employee health and safety. Moore’s lack ofknowledge that the safety device was inoperable is not relevant to thatdetermination, however, and would be an improper basis on which toclassify a violation as _de_ _minimis_ under the Act.Lack of knowledge as to the operability of the ladder climbing safetydevice is relevant only if the standard required such devices. Thus, tobase the decision on the argument of the respondent would be equivalentto judicially amending the standard to set forth the Secretary’spreference for ladder climbing safety devices over platforms as a methodof fall protection. Such a change in policy from that embodied in thestandard can only be accomplished through rulemaking. The Commission isnot the appropriate forum for such a change in OSHA’s rules. _See_,_e.g._, _Schwarz-Jordan, Inc. of Dallas_, 84 OSAHRC 11 BNA OSHC 2145,1984 CCH OSHD ? 26,989 (No. 81-2738, 1984) (the Commission cannot weighthe merits of the policy decisions embodied in standards nor substituteits personal policy choice for that embodied in the standard). We havefrequently held that the plain meaning of a standard cannot be twistedto require of employers more stringent methods of protecting employeesthan is set forth in the standard. _See_, _e.g_., _Schwarz-Jordan,Inc_., _supra_, and _Lisbon Contractors, Inc_., 84 OSAHRC , 11 BNA OSHC1971, 1974, 1984 CCH OSHD ? 26,924, p. 35,400 (No. 80-97, 1984). Thissame principle precludes the Commission from ignoring the plain languageof the standard to excuse an employer’s failure to provide the requiredsafety device, a landing platform.The Secretary established all of the elements necessary to prove aviolation of the cited standard. The ladder on the Moore rig was 55feet high, but was not equipped with any landing platforms. Moore knewof its failure to equip the ladder with landing platforms. TheSecretary also established the elements of a serious violation. As theaccident in this case indicates, there was \”a substantial probabilitythat death or serious injury could result\” in the event someone fellfrom the unguarded ladder. The violation has therefore beenestablished. Accordingly, the citation for serious violation of 29C.F.R. ? 1910.27(d)(2) is affirmed. After considering the factorslisted in section 17(k) of the Act, Commissioner Cleary and I assess apenalty of $490.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 28 1984CLEARY, Commissioner, Concurring,I concur in the disposition of this case. However, I agree with theSecretary’s position that a ladder climbing safety device would haveprovided alternative protection to employees, and accordingly, thefailure to use this device is the gravamen of the violation.The Secretary noted in his brief to the Commission that he consideredthe lack of landing platforms to be only a _de_ _minimis_ violation ofthe standard so long as the employer used ladder climbing safetydevices. The Secretary’s enforcement policy recognizes that ladderclimbing safety devices are an effective alternative way to protect oilrig workers from fall hazards. Accordingly, the essential questions ofthis case are whether the ladder climbing safety device was broken onthe day of the accident and whether Moore knew the device was broken.Unrebutted testimony established that the ladder climbing safety devicewas inoperative on the day of the accident. The device had broken \”atanother job\” and Moore had started this job with the broken device. However, in order to prove a violation of the Act, the Secretary mustshow that the employer knew or could have known, with the exercise ofreasonable diligence, of the violation. _Prestressed Systems, Inc_., 81OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147,1981). Moore contends that it did not know about the violation. Mooreclaims that the ladder climbing safety device had broken some timeearlier and no one at the site had informed the owners of the company.Knowledge of a violation does not come solely from the direct knowledgeof the employer’s owners or officers. A corporation must functionthrough its employees and supervisors and the owners of any enterprisemust delegate authority in order to operate the various aspects of theirbusiness. Where, as here, the responsibility for the functioning of thedrilling rig is under the direction of a supervisory official, it is notnecessary in order to impute knowledge to show that any particularofficials at the company headquarters, or the owners of the companypersonally were aware of a condition at the drilling site. As the FirstCircuit pointed out in _Central Soya de Puerto Rico v. Secretary ofLabor_, 653 F.2d 28 (1st Cir. 1981),’Knowledge’ by a corporate entity is necessarily a fiction; thecorporation can only be said to ‘know’ information by imputing to it theknowledge of natural persons who serve as its agents.Recognizing this, the courts and the Commission have held that normallyan employer will be held responsible for the actions of itssupervisors. _See_ _Mountain States Telephone and Telegraph Co. v.OSHRC_, 623 F.2d 155 (10th Cir. 1980); _Western_ _Waterproofing Co. v.Marshall_, 576 F.2d 139 (8th Cir. 1978). The Secretary makes out aprima facie case of knowledge by showing that supervisors knew of theviolation. _H.E. Wiese, Inc_., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499, 1982CCH OSHD ? 25,985 (No. 78-204, 1982), _aff’d_, 705 F.2d 449 (5th Cir. 1983).In this case, testimony at the hearing established that Mr. Vann and Mr.Wood knew that the rig did not have a ladder climbing safety device. Wood was the operator of the rig; his duties included supervising theemployees at the site. Vann was a tool pusher and Wood’s supervisor.The administrative law judge found that Vann had \”ultimate supervisoryauthority over the other employees at the site.\” Since Vann and Woodwere supervisors who had the authority to enforce safety rules at thejobsite, their knowledge should be imputed to their employer. _See__Western Massachusetts Electric Co.,_ 81 OSAHRC 63\/B13, 9 BNA OSHC 1940,1981 CCH OSHD ? 25,470 (No. 76-1174, 1981); _Paul Betty, d\/b\/a BettyBrothers_, 81 OSAHRC 18\/B11, 9 BNA OSHC 1379, 1981 CCH OSHD ? 25,219(No. 79-4271, 1981).Since unrebutted evidence established that the ladder climbing safetydevice was broken on the day of the accident and that supervisors ofMoore knew that the device was broken, the Secretary has establishedthat the standard was violated.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. 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