“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3395 OKLAND CONSTRUCTION COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February20, 1976DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:Inthis matter Complainant?s (Labor) citation alleged that Respondent committed aserious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C.? 651 et seq.) because, contrary to 29 C.F.R. ? 1926.28(a)[1]its employees exposed to the hazard of a fall from formwork they wereassembling for the placement of concrete were not required to wear appropriateequipment to protect against this hazard. Specifically, Labor alleged that theemployees could fall because they were working while standing on horizontalbeams, or walers. Administrative Law Judge John J. Morris found that oneemployee not wearing a safety belt was standing on a waler while working at apoint on the forming about eight feet above a scaffold platform and concludedthat work being performed in this manner is hazardous. Accordingly, he affirmedLabor?s citation and assessed a penalty of $550 therefor.[2]For the reasons given below we affirm his decision.Itis undisputed that one employee fell between 15 and 18 feet to his death whileinstalling one of the walers, which were 2- by 4-inch boards. It is furtherundisputed that this employee was not wearing a safety belt at the time hefell. However, approximately 40 minutes before his fall he had been workingwhile standing on the aforementioned scaffold, which was equipped with aguardrail. There is no direct evidence showing where he was standing when hefell or the cause of his fall.Respondentdoes not contend that an employee working while standing on a 2- by 4-inch beamis not exposed to the hazard of a fall. Rather, Respondent contended, amongother things, that on these facts Labor failed to prove that a hazardouscondition existed requiring the use of a safety belt because it did notestablish that the deceased employee had been on a waler at the time he fell.Respondent also argued that, in any event, the cited standard does not impose arequirement for the use of safety belts.Wehave since held that employees exposed to the hazard of a fall are required bythis standard to use safety belts or some type of personal fall protectiveequipment. E.g., Island Steel and Welding, Lte., 17 OSAHRC 143, BNA 3OSHC 1101, CCH E.S.H.G. para. 19,545 (1975); Eichleay Corporation, 15OSAHRC 635, BNA 2 OSHC 1635, CCH E.S.H.G. para. 19,324 (1975); CarpenterRigging and Contracting Corporation, 15 OSAHRC 400, BNA 2 OSHC 1544, CCHE.S.H.G. para. 19,252 (1975); Hoffman Construction Company, 15 OSAHRC327, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (1975), petition for reviewdocketed, No. 75?1741 (9th Cir., March 27, 1975). Accordingly, we rejectRespondent?s contention to the contrary.Weturn now to the question whether Labor on the facts proved that Respondent?semployee was exposed to the hazard of a fall. As previously noted, the onlydirect evidence as to this employee?s location is that he was on a guardedscaffold at a time prior to his fall. Nevertheless, the judge found that hefell from a waler above the scaffold. The judge?s finding is based oninferences he drew from the testimony of two fellow employees and the jobsuperintendent describing the method by which the work was being performed andtheir observations of the deceased employee both before and after his fall.That is, the judge?s decision is predicated on circumstantial rather than directevidence. His inferences and resultant finding are reasonable, but, arguably,different inferences and a contrary finding would have been equally proper.However,it is the judge who as trier of fact had the opportunity to observe thedemeanor of the witnesses, evaluate their credibility,[3]and weight the evidence accordingly. Since his finding is supported by theevidence, it cannot be said that he erred. Under such circumstances, we do notbelieve it appropriate to reweigh the evidence on review and substitute ourview of the evidence simply because a contrary factual finding is alsopossible. Accordingly, we will adopt the judge?s decision on the meritsconcerning the existence of the violation.Wealso agree with the judge that on the facts the violation is serious in nature[4]and that a penalty of $500 is appropriate. Lastly, Judge Morris correctlydisposed of the other issues before him, and we note that on review Respondentpresents no specific argument in opposition to his decision.?Accordingly,it is ORDERED that the Judge?s decision be and the same is hereby affirmed.?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryBY:Gloria W. WhiteActingExecutive SecretaryMORAN,Commissioner, Dissenting:Theforegoing opinion presents an interesting contrast to the opinion rendered bythe same two members in Secretary v. Allis-Chalmers Corp., 20 OSAHRC 546(1975).Inthe instant case the Judge?s opinion sustained the Secretary of Labor?sposition. Messrs. Barnako and Cleary uphold that finding and state:?. . .it is the Judge who as trier of the fact had the opportunity to observe thedemeanor of the witnesses, evaluate their credibility, and weigh the evidenceaccordingly. Since his finding is supported by the evidence, it cannot be saidthat he erred. Under such circumstances, we do not believe it appropriate toreweigh the evidence on review and substitute our view of the evidence simplybecause a contrary factual finding is also possible.? [Footnote omitted.]?InAllis-Chalmers, the Judge?s opinion sustained the employer?s position.The same two members who today say it is not appropriate for them ?to reweighthe evidence . . . and substitute our view of the evidence,? did exactly thatin Allis-Chalmers. They reversed the Judge and entered on opinionfavorable to the Secretary of Labor despite this specific credibility findingmade by the Judge:?Thetestimony as to how and when to use scaffolds by two Allis Chalmers officials .. . far outweighs the testimony of Van Kuiken [complainant?s inspector]. Allthree were credible witnesses, but Van Kuiken?s views were not supported byenough knowledge of the subject to be persuasive.??Messrs.Barnako and Cleary didn?t accept that credibility finding for, as they said inthat case?. . .the testimony and photographic evidence convinces us that the workperformed on their surfaces [the scaffolds] cannot be done safely.? [Emphasisadded.]\u00a0Myconclusion from reading the Barnako-Cleary opinions in these two cases is this:When the Judge finds for the Secretary of Labor it is error to substitute theirview of the evidence for his?but when the Judge finds for the employer theywill ?reweigh the evidence on review? and substitute their view of the evidencefor that of the Judge. I disagree with this rule for it is my belief that theConstitution requires equal justice under law. When the Secretary of Labor, ascomplainant, and the employer, as respondent, appear as opposing parties in acase before this Commission the same evidentiary rules should apply to bothparties and the same credibility determinations should apply.Inthe instant case I would vacate the citation on the same basis as that statedin my opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC143 (1975). At pages 144?147 of that decision I explained in detail why section1926.28(a) requires that employees use safety belts only when they are workingat heights that are more than 25 feet above the ground or other surfaces. Inthe instant case, that evidence is lacking.TheJudge found the respondent liable because of a fatal fall of about 16 feet byone of its employees from the side of the wall on which he was working to thebottom of a stairwell below. The Judge?s findings were based on estimates byseveral witnesses as to the distance of the fall. These estimates ranged from15 to 22 feet. Since there is no evidence that the employee was working morethan 25 feet above the ground or other surface, the citation should be vacated.Inview of the repeated references in this decision to Judge Morris? decision, thelatter is attached hereto as Appendix A.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3395 OKLAND CONSTRUCTION COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: November 18, 1974DECISIONAND ORDERAppearances:William J. Kilberg, Solicitor ofLabor T. A. Housh, Jr., Regional Solicitor Henry C. Mahlman, Associate RegionalSolicitor Roger L. Rutter, Trial Counsel of Denver, Colorado for the Secretaryof Labor.\u00a0Wilford A. Beesley, TrialCounsel of Salt Lake City, Utah for the Respondent.?STATEMENTOF THE CASEJohnJ. Morris, Judge, OSAHRCThisis a proceeding pursuant to 29 USC 659(c) for an adjudication under theOccupational Safety and Health Act of 1970, (29 USC 651, et seq, hereaftercalled the Act). Respondent is contesting a citation issued by Complainantunder the authority vested in Complainant by 29 USC 658.Thecitation alleges that Complainant inspected a workplace described as a powerstation and located approximately 46 miles southwest of Park Valley, Utah.Itis further alleged that on the basis of the inspection at the above workplaceRespondent violated 29 USC 654(a)(2) of the Act by failing to comply with anoccupational safety and health standard promulgated by Complainant, pursuant to29 USC 655. Abatement one day from receipt of the citation was proposed.Thecontested citation was issued on June 8, 1973; the inspection occurred June 4,1973. It is alleged that the standard violated was published in the Code ofFederal Regulations at 29 CFR 1926.28(a).Thedescription of the serious violation alleged in citation number one states asfollows:Employeeswere allowed to work standing on 2\u2033? x 4\u2033? walers on the side wallform without the employer requiring them to wear appropriate personalprotective equipment.Theforegoing standard as promulgated by the Secretary provides as follows:? ?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 hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.\u00a0Pursuantto the enforcement procedure as set forth in 29 USC 659(a) of the Act, theRespondent was notified by letter dated June 8, 1973 from the Area Director forthe Occupational Safety and Health Administration U. S. Department of Labor;said Area Director proposed to assess a penalty for the violation alleged inthe amount of $600. Additional citations and proposed penalties were notcontested and have become the final order of the Review Commission by virtue of29 USC 659(a).Afterrespondent contested this enforcement action, and a complaint and an answerhaving been filed by the parties, the case came on for hearing in Ogden, Utahon December 4, 1973. No parties desired to intervene in the proceedings. Noticeof the hearing was posted (Tr. 5?6)STATEMENTOF JURISDICTION Respondent?s answer admits that it is an employer under theterms of the Act, having nine employees at the construction site in question,and sixty-five employees at all projects. Further, Respondent does business inseveral states (Tr. 5, 9).Inview of the above, respondent is an employer subject to the terms of the Actand the Occupational Safety and Health Review Commission has jurisdiction ofthe subject matter of this litigation.COMPLAINANT?SEVIDENCEAsa result of a fatality, respondent was investigated on June 4, 1973 (Tr. 9). Onthe day of the fatality, laborers were assembling forms for the placement ofconcrete and two such laborers were working on the opposite sides of an 8 inchwall. Employee Schwandt had been working with Lasson (deceased) on Lasson?sside of the wall 10 or 15 minutes before the accident (Tr. 14, 20, 21?22, 98,99). At that time Lasson was not wearing a safety belt or using a ladder, nordid either employee use a belt although when Schwandt was working on walers heused a safety belt ?most of the time? (Tr. 21?22). There were safety belts onthe job and Schwandt had been told they were to be used (Tr. 17?18, 22). At thetime of this accident Schwandt and Lasson were in the second day of erectingwooden forms (Tr. 26) which are known as ?walers? which are 2 x 4?s incorresponding positions on each side of the forms. The walers are set in ahorizontal plane never over 2 feet apart (Tr. 27, 28, 30?31); a waler is abrace placed against a form to steady the form and thereby prevent waves orwrinkles in the poured concrete (Tr. 24). In effect it holds the wood formstogether (Tr. 24, 25). Clamps to the walers are held with ties (Tr. 25). Lassonand Schwandt were putting clamps on tie rods which would go through and attachto walers on each each side of the wall (Tr. 27). At the time of the accidentSchwandt and Lasson were working on the second from the top waler and Lasson?shead was about 4 to 5 feet from the top of the wall (Tr. 28). Schwandt thoughtthe wall was 12 feet high on the outside which was his side (Tr. 24, 29) andthe distance was greater on the inside due to the underground level of thebuilding (Tr. 30).Lassonfell at approximately 10:40 a.m. (Tr. 15); when observed by Schwandt after thefall Lasson was not wearing a safety belt (Tr. 16?17) nor was there oneattached to where he had been working (Tr. 16). Lasson fell to the concrete onthe bottom level, which was a distance of 15 to 18 feet (Tr. 26, 30, 40).Complainant?s exhibit 2 shows the stairwell into which Lasson fell (Tr. 37,38). Complainant?s exhibit 4 shows the wall at the time of the accident (Tr.40); complainant?s exhibit 7 shows the platforms, walers and walls (Tr. 42).The platform as shown in the photographs was 4\u2032 by 8\u2032 (Tr. 43); andthe top guardrail was about 40\u2033? above the platform (Tr. 43 44). In theopinion of the compliance officer it would be possible to string a safety lineand attach belts to it (Tr. 45) or the alternative run a line to the top andattach it to the vertical rebars (Tr. 45).Asto the issue of penalties the parties stipulated that the proposed mandatorypenalty from the compliance manual is $1,000 (Tr. 48?49, 52) and that therespondent was allowed 10% for good faith, because he had a good but noteffective safety program. Further, respondent was allowed 20% for history andfull credit for size. The net proposed penalty was $600 (Tr. 48?49, 52?53). Thecompliance officer?s guidelines was received in evidence by stipulation of theparties (Tr. 50?51; compl?s. ex. 16).RESPONDENT?SEVIDENCERespondent?soffice manager indicated that at the beginning of each construction projectthey send out a safety manual with guidelines, procedures and instructions (Tr.57, 58?59). Five safety belts together with ladders were furnished for this job(Tr. 58, 63). The type of construction undertaken at this worksite was similarto that used on many projects and climbing on walers is an unusual procedure(Tr. 60, 61).Respondent?sforeman indicated that they have safety meetings every two weeks of about fiveminutes duration and the men are instructed to use scaffolds, step ladders, orsafety belts (Tr. 63, 70). The superintendent saw Lasson about 10 a.m., atwhich time he was standing on the platform above the stairwell (Tr. 64). It isthe function of the superintendent to see that the job is done safely andaccording to the blueprints (Tr. 65). The superintendent did not know whereLasson was standing when he fell, but he fell some 16 feet (Tr. 65?66). Theframework extended some 12 feet above the platform (Tr. 66). The top railing onthe platform was 3\u20326\u2033? and the top rail was a 2 x 6 (Tr. 68). Fromhis inspection after the accident the superintendent determined that the workbeing done was at a point about 8 feet above the platform (Tr. 68?69), but thiswas an assumption; the last clamp was 8 feet above the platform (Tr. 69, 72).He had not seen Lasson standing on any of the walers.WitnessMerrill, a carpenter for the respondent offered extensive evidence showing therelative position of the area under discussion (Tr. 74?82; respondent?s exhibitA). Cross examination of employee Merrill involved a prior statement which wasread by complainant?s counsel; the reading thereof was objected to byrespondent?s counsel on the basis that he was not given a copy there in advancein accordance with his interrogatories citing 4 Moore?s Practice 26.65. AfterLasson was removed Merrill did not observe any ladder (Tr. 88?89, 91). Merrillwas situated on a wall and he could see Lasson?s head and the wall from whichhe was observing Lasson was 10 feet high and Lasson?s head was 8 or 8 1\/2 feetfrom the platform (Tr. 94). There were no broken boards in the area (Tr. 96).Rebuttalevidence indicated that the guardrails in complainant?s exhibit 7 were notthere on the day of the accident (Tr. 98, 99); in reply thereto respondent?sevidence indicated that only the bottom part of the guardrail, i.e., theportion 2 feet from the bottom of the platform was there on the day of theaccident (Tr. 101).ISSUES1.Was respondent?s counsel entitled to a prior copy of a statement taken fromwitness Merrill as evidenced by complainant?s exhibit 17?2.Respondent contends that complainant has failed to prove by a preponderance ofthe evidence that a dangerous or hazardous condition existed at theconstruction site (conclusions of law number 1).3.Respondent contends that complainant has failed to prove by a preponderance ofthe evidence that a safety belt was required to be used by the deceased at thetime he fell from the platform or that a safety belt is required under theprovisions of the Act (conclusion of law number 2).4.Respondent contends that it has not violated any of the provisions of the Actand is entitled to a dismissal therefrom.5.Respondent contends in his motion to dismiss that there was a lack of knowledgeon the part of respondent as required by 29 USC 666(j) (Tr. 52?53, 109).6.What penalty, if any, is appropriate in the event a violation of the standardis established?DISCUSSIONRespondent?scomplaint on the failure of complainant to furnish a list of witnesses known tocomplainant (Tr. 103?109) was cured by a post-trial order directing complainantto divulge the names of all witnesses known to complainant. Respondent wasadvised of the witnesses and was further granted an opportunity to reopen thehearing. No such reopening having been sought the issue heretofore raised as tothe production of names and addresses of witnesses known to the complainant isdeemed to be moot.Asto the complainant?s failure to furnish a copy of the statement of witnessMerrill: Respondent previously sought to submit a number of interrogatories tocomplainant. Interrogatory number 4 states as follows:Statethe name and address of each person who has furnished a statement tocomplainant pursuant to an inspection of the casualty of the alleged violationherein.(a)Will complainant furnish a copy of said statements, and if so kindly attach acopy to complainant?s answer to these interrogatories.\u00a0OnAugust 28, 1973 Judge Charles K. Chaplin denied respondent?s motion for leaveto submit interrogatories. In again ruling on interrogatory 4 the undersignedJudge denied the above interrogatory (Order, December 20, 1973).Respondentrelies on 4 Moore?s Federal Practice 26.65 claiming that he was entitledto a prior copy of witness Merrill?s statement. This issue might readily bedisposed of by Review Commission Rule 53 which states as follows:(a)Except by special order of the Commission or the Judge, discovery depositionsof parties, intervenors, or witnesses, and interrogatories directed to parties,intervenors, or witnesses shall not allowed.?However,the issue having been squarely raised it is this Judge?s view that respondentis not entitled to a copy of the statement of witness Merrill prior to trial.As the outset we note that witness Merrill is not a party to this litigationnor is he a corporate officer of the respondent. Under Rule 34 of the Federal Rulesof Civil Procedure it is now apparent that a party to litigation can obtain acopy of his own statement. This is clearly within the scope of the FederalRules and adopted in many states by court rule and state statutes. While the?good cause? requirement in Rule 34 was eliminated in the amendment effectivein 1970 it still remains the duty of a movant to show by motion or supportingaffadavit that there is a substantial need and the inability to obtain theequivalent by other means (Almaguer v. Chicago, R. I. & P. R. Co. D.C. Neb. 1972, 55 F. R. D. 147). Merrill was at the time of trial an employee ofRespondent (Tr. 74?98). Further, a casual reading of the testimony indicatesthat respondent was not in any way prejudiced by the failure of complainant tofurnish a copy of the statement prior to trial (Tr. 87?90). Respondent?scontention is denied.Respondent?ssecond contention that complainant failed to prove that there was a dangerousor hazardous condition at this worksite is without merit. Employee Lasson wasnot wearing a safety belt at the time of the accident nor was there oneattached to where he had been working (Tr. 16?17). The respondent?ssuperintendent testified Lasson and Schwandt were working at a point about 8feet above the platform (Tr. 68?69, 72). The work had been going on at thispoint (Tr. 68?69); he was able to tell this from where the clamp was located(Tr. 69). The only conclusion that can be reached in the absence of a stepladder is that the deceased Lasson was standing on a whaler above the platformadjusting the tie with employee Schwandt who was on the other side of the 8inch wall. Working in such a manner involved an obviously dangerous situation.Respondent?sthird contention that a safety belt is not required either under the facts orprovisions of the standard is denied. The transcript indicates that five safetybelts were furnished (Tr. 58) and the workmen were instructed to use ascaffold, safety belt or step ladder (Tr. 63, 70). Employee Schwandt was notwearing them on the date of this accident and he would have fallen a distanceof 10 or 12 feet (Tr. 17) and when working on a whaler Schwandt used a safetybelt most of the time (Tr. 21). The record indicates that the employees on thejob and the supervisory personnel on the job including the superintendent andthe office manager had no difficulty determing that safety belts should beused. Respondent?s contention that safety belts are not required under the actwas disposed of in two recent Court of Appeals cases relating to personalprotective equipment, Namely McLean Trucking Company v. Occupational Safetyand Health Review Commission, DOCKET No. 73?2392 decided by the U. S. Courtof Appeals for the 4th Circuit on September 4, 1974 ?? F.2d ??. Also to likeeffect see the case of Ryder Truck Lines, Inc. v. Brennan, Secretary ofLabor 497 F.2d 230. Both of the cited cases uphold the protective equipmentstandard, specifically they relate to protective shoes but the reasoningtherein is equally applicable to the facts in the instant case.Therespondent?s contention that it has not violated any of the provisions of theAct is denied for the reasons heretofore discussed.Respondentfurther contended that there is a lack of knowledge on its part and by virtueof 29 USC 666(j) complainant?s case should be dismissed.29USC 666(j) provides as follows:?(j)For purpose of this section, a serious violation shall be deemed to exist in aplace of employment if there is a substantial probability that death or seriousphysical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and couldnot with the exercise of reasonable diligence, know of the presence of theviolation.??Afair reading of the evidence in this case indicates that respondent did not, infact, know of this violation. However, the evidence indicates that therespondent could have known of the violation. Lasson fell at approximately10:40 a.m. (Tr. 15). The superintendent had been on the worksite frequently(Tr. 63?64) and last saw Lasson about 10 a.m. (Tr. 64). It is thesuperintendent?s function to see that the job is going safely and according toblueprints (Tr. 65). The superintendent knew that the work was progressingupward (Tr. 69). The record is totally devoid of any indication of safetyinstructions or directives to employee Lasson or the supervision of him afterthe commencement of this two day job. The study of the blueprints coupled withthe knowledge of the activity being undertaken and the time interval involvedindicate that there was sufficient time for respondent to realize that aviolation could occur. Lasson was not wearing a seat belt when he was workingwith Schwandt on Lasson?s side of the wall (Tr. 16). There is a time intervalof ten or fifteen minutes (Tr. 21?22). Once a condition is shown to haveexisted (lack of safety belt) the legal presumption is that such a conditionexisted until the fall occurred. There are sufficient facts indicating thatrespondent should have known of this violation.Thefinal issue for determination is what penalty, if any, is appropriate for theviolation of the standard.TheReview Commission under 17(j) of the Act, now 29 USC 666(i) is required to givedue consideration to the appropriateness of the penalty with respect to thesize of the business of the employer being charged, the gravity of theviolation, the good faith of the employer, and the history of previousviolations. In the leading case of Secretary v. Nacirema Operating Company,Inc. 1 OSAHRC 33 the Commission stated that the criteria provided for in theCongressional enactment cannot always be given equal weight. It has furtherbeen indicated that the principle factor to be considered in assessing anappropriate penalty for the violation is the gravity of the offense. Indetermining the gravity of violation, several elements must be consideredincluding but not necessarily limited to the following: (1) the number ofemployees exposed to the risk of injury; (2) the duration of the exposure; (3)the precautions taken against injury, if any; and (4) the probability of theoccurrence of an injury.Inthe instant case one employee was exposed to the risk of injury. The recordfails to show the duration of the exposure in an exact time frame. Theprecautions taken against injury included the furnishing of safety belts. Adegree of probability of the occurrence of an injury appears to be moderate.Giving due consideration of all factors with particular emphasis on the gravityof the violation a civil penalty of $500 is proper.FINDINGSOF FACT1.Respondent is an employer subject to the terms and conditions of theOccupational Safety and Health Act of 1970 having employees and doing businessin several states (Tr. 5).2.Respondent had 9 employees on the construction site in question and 65 on allprojects (Tr. 5).3.Employee Lasson was not wearing a safety belt when he was placing rods throughwalers on a concrete wall (Tr. 16, 17, 27).4.Lasson was working standing on a waler eight foot above a wooden platform whenhe fell from that point approximately 16 feet (Tr. 30, 65, 66, 68 69).5.Lasson died as a result of the fall (Tr. 9).6.It was not shown for how long Lasson was exposed to a fall (Totality of Record)7.Respondent had safety belts available and also furnished ladders at the jobsite(Tr. 58).8.Respondent conducted safety meetings every two weeks (Tr. 63, 70).9.The proceedings did not show a history of previous violations (Totality of theRecord).CONCLUSIONSOF LAW1.Respondent is, and was at all times, relevant to the issues herein engaged in abusiness affecting commerce within the meaning of 29 USC 652 being theOccupational Safety and Health Act of 1970. (Facts 1, 2).2.Respondent is and was at all times mentioned, an employer within the meaning of29 USC 652(5) and subject to the provisions thereof and the standardspromulgated under 29 USC 655 (Facts 1, 2).3.Respondent violated 29 CFR 1926.28(a) and citation number 1 should be affirmed(Facts 3, 4).4.The proposed civil penalty of $600 for the violation should be vacated and apenalty of $500 should a assessed in lieu thereof.ORDERBasedon the foregoing findings of act and conclusions of law it is hereby ADJUDGEDand ORDERED:1.Citation number 1 for the alleged serious violation of 29 CFR 1926.28(a) isaffirmed.2.The proposed civil penalty of $600 for the violation established in thepreceding paragraph is vacated and a civil penalty of $500 is established inlieu thereof.?SoORDERED in the city and county of Denver, Colorado.?John J. MorrisJudge, OSAHRCOctober 18, 1974[1]Thisstandard requires as follows:Theemployer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.\u00a0[2]Thejudge also concluded that Labor was not required to furnish prior to trial acopy of a written statement given by one of Respondent?s employees to Labor?sinspector. We agree with the judge?s ruling for the reasons he assigns.Moreover, Respondent did not take exception to the ruling in its post-trialsubmissions to the judge and it has not argued the issue before us on review.We also note that the employee was called as a witness, his statement was readinto the record, and it was made available to Respondent?s counsel for his examinationof the witness. Accordingly, the requirements of the ?Jencks rule? have beensatisfied. See, e.g., Great Lakes Airlines, Inc. v. CAB, 291 F.2d 254,363?65 (9th Cir.), cert. denied, 368 U.S. 890 (1961); NLRB v.Adhesive Products Corp., 258 F.2d 403, 408 (2d Cir. 1958); FrazeeConstruction Co., 4 OSAHRC 188, BNA 1 OSHC 1270, CCH E.S.H.G. para. 16,409(1973).[3] We have said that we willnot disturb judges? decisions founded on credibility determinations. Paul L.Heath Contracting Co., BNA 3 OSHC 1550, CCH E.S.H.G. para. 20,006 (1975); NortheastStevedoring Co., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH E.S.H.G. para. 19,001(1974).\u00a0[4] While Commissioner Cleary concurs, he also adds thatin his view in order to prove a serious violation Labor need not establish aspart of its prima facie case that Respondent knew or could reasonably haveknown of the presence of the violation. Rather, lack of knowledge is anaffirmative defense to be raised and proven by Respondent. See his dissentingopinion in D. R. Johnson Lumber Co., 17 OSAHRC 426, BNA 3 OSHC 1124, CCHE.S.H.G. para. 19,695 (1975). See also Atlas Roofing Co. v. OSHRC, 518F.2d 990, 1013 (5th Cir. 1975).”