“SECRETARY OF LABOR,Complainant,v.PACE CONSTRUCTION CORP.,Respondent.OSHR DOCKET NO. 86-0758DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:This case involves 30-foot fall hazards from scaffolds and a balcony atthe perimeter of a building under construction. The parties raiseobjections to a decision of an administrative law judge concerningalleged violations of the Occupational Safety and Health Act, 29 U.S.C.?? 651-78, relating to those hazards. The judge affirmed one item of theSecretary’s citation to Pace Construction Corp. and vacated anotheritem. For the reasons set forth below, we affirm both items, and assessthe proposed penalties, totaling $ 1,080.00.BackgroundPace was the general contractor for the construction of an office andretail complex in Delray Beach, Florida. While doing carpentry work onthe project, Pace employee J.W. Stone fell 30 feet to the ground from anunguarded outrigger scaffold outside the fourth floor of one of thebuildings. As a result of this fall, he suffered serious injuries.An OSHA inspection followed. Item 1(a) of the resulting citation allegedthat Pace did not require employees to use safety belts on the scaffoldStone fell from, in violation of 29 C.F.R. ? 1926.28(a) [[1\/]] Thatscaffold was on the \”southwest side, fourth level\” of the building. Item1 (b), as amended, alleged that Pace failed to provide guardrails andplanking for a different scaffold, located at the southeast side of thatlevel, in violation of 29 C.F.R. ?? 1926.451(g)(4) and (g)(5).[[2\/]]Item 2 alleged the failure to guard a balcony on which two employeeswere working, once again outside the fourth level, in violation of 29C.F.R. ? 1926.500(d)(1). [[3\/]] The judge affirmed Items 1(a) and 1(b)and vacated Item 2. For the reasons set forth below, we affirm Items1(a) and 1(b) as serious violations, and reverse the judge on Item 2,thus affirming that item as a serious violation as well.Item 1(a): Stone’s scaffoldIn order to prove a violation of the cited standard, ? 1926.28(a) (n.1supra), under current Commission precedent, the Secretary must showthat: (1) there was exposure to a hazardous condition, and (2) someother section in Part 1926 indicates a need for using personalprotective equipment. L.E. Myers Co., 12 BNA OSHC 1609, 1614, 1986-87CCH OSHD ? 27,476, pp. 35,604-05 (No. 82-1137, 1986) , rev’d on othergrounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 484 U.S. 989, 108S.Ct. 479 (1987) [[4\/]] The aforementioned precedent was in effect whenthis case was tried. The Secretary also must prove that (3) the employerfailed to require the use of the equipment. Id.There is no dispute that the first element of the alleged violation wasproven. The open sides of the outrigger scaffold from which Stone wasworking when he fell were unguarded, its three planks were not secured,and he wore no safety belt. As to the second element, 29 C.F.R. ?1926.105(a) indicates the need for safety belts where, as here, theworkplace is more than 25 feet above the ground. L. E. Myers, supra. Theevidence demonstrates that the second element also was established.We further find that the Secretary proved the third element, because theevidence supports the judge’s conclusion that Pace did not adequatelyenforce a safety belt requirement on the worksite. It is true that Pacehad a written safety belt rule. [[5\/]] In addition, Pace requiredemployees to read and sign a copy of its safety orientationbooklet–which included the safety belt rule–before they began work.Furthermore, safety belts had been discussed at certain of Pace’s safetymeetings, at the site, before the accident.However, the Secretary presented sufficient evidence which demonstratedthat Pace’s safety belt rule was not adequately enforced on theworksite, especially in light of the many violations found by itssuperintendent on his walkarounds. Cf., e.g., H. E. Wiese, Inc., 10 BNAOSHC 1499, 1505; 1982 CCH OSHD ? 25,985, p. 32,614 (No. 78-204, 1982)(explaining necessary elements of safety rule enforcement, in analyzingemployer’s defense of unpreventable employee misconduct. There wasabundant testimony that the safety belt rule was not enforcedconsistently by Pace’s foremen, but rather the decision as to whether touse the safety belts was left largely to employee discretion. Pace wastherefore not in compliance with the standard’s mandate, which expresslymade it \”responsible for requiring the wearing of appropriate personalprotective equipment in all operations\” covered by the standard. Thedecision whether to comply with company safety rules which reflect OSHArequirements cannot be left to the employee’s discretion. See, e.g.,American Bechtel, Inc., 6 BNA OSHC 1246, 1248, 1977-78 CCH OSHD ?22,466, p. 27,079 (No. 11340, 1977).Although the testimony that compliance was not routinely enforced wasdisputed, the judge resolved the conflicts in favor of the Secretary’switnesses.[[6\/]] The judge concluded that Pace’s disciplinary program\”consisted primarily of verbal reprimands administered haphazardly andwithout effective results.\” He further found that Pace’s employees\”routinely violated the company’s…rule prior to the accident,\” and herejected Pace’s defense that the noncompliance resulted fromunpreventable employee misconduct.The Secretary’s witnesses, whose testimony the judge credited, wereFraser, a Pace carpenter at the time of the accident, and Barkalow, theforeman over the carpenters. Fraser testified that Stone was not theonly employee on the scaffold without a safety belt at the approximatetime of the accident. He added that he saw \”probably five\” employeesworking without safety belts on another inadequately guarded scaffold onthe morning of the accident. (That scaffold is the subject of Item 1(b).)Fraser further testified that, before the accident, he did notunderstand when he was supposed to wear a belt. He added that \”[t]herewasn’t [sic] too many people wearing safety belts\” before the accidentand that only two safety belts were provided for the crews until afterthe accident. In addition, Fraser testified that, to his knowledge, noone was reprimanded before the accident for failing to use a safetybelt. Barkalow testified that he did not watch the carpenters whoerected scaffolds, to see if they wore safety belts: \”the belt wasthere; if they didn’t [wear it], that was up to them.\”In addition to Fraser and Barkalow’s statements, there was testimony bysome of Pace’s own witnesses that supports the judge’s findings. One ofPace’s lead laborers testified that employees who had \”nerve\” would notwear safety belts while working outside the building perimeter.[[7\/]]Pace’s job superintendent, James Muziak, testified that he had issuedverbal reprimands to every employee on the job about failure to wearsafety belts.[[8\/]] The judge concluded:The fact that these oral reprimands were required on such a wide-rangingscale shows respondent’s awareness of the problem and is a goodindication that the … [safety] belt rule was not effectively enforcedor taken seriously by employees …The evidence indicates that essentially all of the supervisoryreprimands were issued by Muziak, who typically was away from the workareas most of the day.We accept the judge’s assessment of the witnesses’ credibility, and hisconclusions regarding Pace’s enforcement of its safety belt rule. TheCommission has previously stated the principles governing review of ajudge’s credibility findings:Normally, we will accept the administrative law judge’s evaluation ofthe credibility of witnesses because it is the judge who has lived withthe case, heard the witnesses and observed their demeanor… However,the judge should identify the conflicting testimony and explain thereasons for failing to credit a witness’s testimony or for crediting thetestimony of one witness over that of another.Inland Steel Co., 12 BNA OSHC 1968, 1978, 1986-87 CCH OSHD ? 27,647, p.36,005 (No. 79-3286, 1986) (citations omitted) . Here, the judgeidentified the conflicting testimony and explained that he credited theSecretary’s witnesses over Pace’s, where their testimony conflicted,based on his observations of their \”demeanor and candor\” as theytestified. These are matters that the hearing judge is in a uniqueposition to assess. As discussed above, the credibility findings hereare corroborated by testimony by some of Pace’s own witnesses.Pace argues that the judge’s credibility findings are contrary to theoverwhelming weight of the evidence (basically, the testimony of itscurrent employees). In particular, Pace contends that Fraser’s testimonyis inconsistent with that of other witnesses in many respects, andtherefore is not credible. However, the testimony Pace relies on doesnot actually contradict Fraser’s.In this regard, Pace claims that Fraser’s testimony is inconsistent withthe judge’s finding that superintendent Muziak had issued verbalreprimands to everyone on the job. However, Fraser merely testified thathe did not know of anyone being reprimanded prior to the accident fornot wearing a safety belt. Muziak did not state that his verbalreprimands were all issued before the accident. Additionally, no witnessclaimed that Fraser knew a verbal reprimand before the accident.Pace also attacks Fraser’s testimony regarding employees working withoutsafety belts on a particular scaffold — which is the subject of Item1(b) — on the morning of the accident. Pace points out that leadcarpenter Rittnour testified that he was out on that scaffold setting itup that morning and \”I was tied off every day I went out there.\”However, Fraser did not testify that Rittnour was one of the employeeshe saw on that scaffold. He merely testified that Rittnour later helpedmove that scaffolding to another fourth floor location for patching work.In addition, Pace criticizes Fraser’s testimony that, before theaccident, he did not understand when he was supposed to wear safetybelts on scaffolds. Pace notes Fraser’s testimony that he was told insafety meetings to use safety belts while engaged in scaffold work.Fraser acknowledged reading and signing Pace’s safety orientationbooklet, which contained the safety belt rule, when he was first hiredin 1985. However, the relevant questions by Pace’s counsel did notelicit what instruction Fraser got before the accident, as opposed toafter it. Fraser testified that only after the accident did everyonewear safety belts when working within six feet of the building’s edge.We also reject Pace’s argument that Barkalow’s testimony supports itsposition. Pace relies on Barkalow’s testimony that employees wereinstructed in safety meetings to use a safety belt when erectingguardrails on scaffolds. Barkalow further testified that he carriedsafety belts to the employees every morning and told them, \”Here theyare, boys.\” However, that testimony does not show that safety belt useactually was enforced on the worksite. Nor does it contradict thetestimony relied on by the judge. Thus, we accept the judge’scredibility findings to the effect that Pace’s safety belt rule was notenforced adequately.Pace next contends that its safety program was adequate under InlandSteel. supra. That argument is unpersuasive. In Inland Steel, theCommission found that the Secretary had failed to prove that Inland’ssafety rules were not properly enforced. The basis for the Commission’sdecision, however, was its acceptance of the judge’s credibilityfindings, which resolved the conflicts in the testimony in favor of theemployer’s witnesses. Those witnesses had testified to the effect thatInland Steel’s work rules were enforced consistently. 12 BNA OSHC at1979-84, 1986-87 CCH OSHD at pp. 36,006-11. Here, by contrast, we haveaccepted the judge’s credibility findings in favor of those witnesseswho testified to the effect that compliance with Pace’s safety rule wasnot adequately enforced, but rather left largely to employee discretion.Those credibility findings dispose of the adequacy of enforcement issue.Pace further argues that the judge erred in rejecting its defense ofunpreventable employee misconduct. Pace asserts that its defense issupported by a decision of the Eleventh Circuit in Daniel InternationalCorp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982) It is not. In DanielInternational, the court vacated a citation issued to a constructionfirm on the ground that the employees,’ failure to were safety belts wasunpreventable misconduct. However, unlike here, the employer and itsforeman there consistently enforced the safety belt requirement, makingfrequent daily checks to be certain they were being used. The courtnoted that the foreman \”did everything except lead the crew by thehand.\” Id. at 365. The rules called for termination of an employee whofailed to wear a safety belt, and the employer proved that its rule hadbeen enforced. At Pace’s worksite, the rule was not adequately enforcedby its foremen.Pace argues that the Secretary failed to show that, with the exercise ofreasonable diligence, Pace could have known that Stone was exposed to afall, because that exposure was of short duration. However, theviolation is not confined to Stone’s situation. The violation is Pace’sfailure, through its foremen, to require the wearing of safety belts,where needed, over a long period of time. Its superintendent knew orreasonably could have known of that failure, because he had to reprimandeach employee for noncompliance with Pace’s safety belt rule during thecourse of the job.Clearly, Pace knew or reasonably could have known of the violation. See29 U.S.C. & ? 666(k).Thus, all the elements of a violation a have been established here: thestandard applied to the conditions, its terms were violated, Paceemployees had access to the hazards, and Pace had the requisiteknowledge of the violation. See, e.g., Trumid Construction Co., 14 BNAOSHC 1784, 1788, 1990 CCH OSHD ? 29,078, p. 38,859 (No. 86-1139, 1990).The Secretary has prevailed under the Commission’s statement of herburden of proof of a ? 1926.28(a) violation. See L. E. Myers, supra. Inaddition, based on the undisputed evidence we find that Pace recognizedsafety belts to be a feasible means of abatement, and that a significantrisk of harm existed.[[9\/]] Item 1(a) is affirmed.Item 1(b):Southeast scaffoldAs noted above, Fraser testified that a second outrigger scaffold wasused the same morning that Stone fell. He testified that this scaffold,as initially erected that morning on the southeast side, fourth level,had a handrail, but no midrail or toeboard, and that Pace’s employeesworking on it had not worn safety belts. According to Fraser’stestimony, the scaffold later was moved, and Pace employees again workedfrom it without safety belts, although its planks were not secured andhe believed it had no guardrail. One of the cited standards, ? 1926.451(g)(4) (n. 2 supra), requires that planking on outrigger scaffolds\”be secured to the beams.\” The other cited standard, ? 1926.451(g)(5)(n.2 supra), requires that outrigger scaffolds have midrails, toeboards,and a standard handrail. The OSHA inspector testified that he learnedabout the lack of proper guarding on the southeast scaffold fromconversations with employees.As to Pace’s knowledge of the conditions, Fraser testified that normallyPaces scaffolds had a guardrail on the exterior side, but none on theends.[[10\/]] One of Pace’s lead carpenters testified that \”justoccasionally\” he saw employees erect or dismantle scaffolding in animproper manner, and that he never saw employees reprimanded for doingso. [[11\/]] He further testified that he observed employees engaging inthis improper practice on the day of the accident. Superintendent Muziaktestified at one point that he had never seen Pace scaffolds in use thatwere not properly erected. However, he then acknowledged that he hadseen ones that lacked a few planks, and that he told the employees tocorrect the situation. Pace presented no direct testimony as to thecondition of the cited scaffold [[12\/]]Thus, the evidence establishes that ? 1926.451(g)(5) applied to thescaffold, that its terms were violated, and that employees had access tothe hazards. The evidence also indicates that, with the exercise ofreasonable diligence, Pace could have known of the noncompliance.Pace’s sole defense to this charge is its claim that its supervisorscommunicated and enforced work rules requiring proper scaffold guarding,and that any noncompliance was therefore the result of unpreventableemployee misconduct. To establish that affirmative defense, the employer\”must demonstrate that it took all feasible steps to prevent the[violation], and that the actions of its employees were a departure froma uniformly and effectively communicated and enforced work rule of whichdeparture [the employer] had neither actual nor constructive knowledge.\”Daniel International, 683 F.2d at 363.In support of its defense, Pace points to Muziak’s testimony that heinstructed several carpenters on proper scaffold guarding, and orderedthat they alone were to be in charge of erecting scaffolds. However, theevidence does not indicate that Pace’s scaffold guarding rules werecommunicated to employees generally, or that its foremen enforced therules in practice.Although Muziak testified as to his efforts to have the guardraildeficiencies he saw corrected, his individual enforcement efforts wereapparently ineffective, as demonstrated by the numerous unguardedstructures on which Pace employees worked without fall protection duringthe two days involved here. As discussed above, in addition to thesoutheast scaffold, Stone’s scaffold was unguarded, and there was noguarding on the balcony on the same level the next day. The inspectortestified that on the day of Stone’s fall, a third scaffold, on the samelevel, also lacked guardrails on its ends and part of its exterior side.The testimony discussed above, including the testimony from witnessesPace relies on, indicates that they knew scaffolds were not consistentlyerected properly. Thus, the evidence shows that Pace had reason to knowthat the southeast scaffold, like Stone’s scaffold, might not haveguardrails or proper planking. It is clear that Pace has failed to showthat any work rule on scaffold guarding was effectively communicated orenforced. We therefore conclude that, with the exercise of reasonablediligence, Pace could have known of the violative conditions. For thereasons cited above, Item 1(b) is affirmed.Item 2: Balcony on fourth levelThe Secretary alleged a violation of ?1926.500(d)(1) (n. 3 supra), inthat \”[o]n or about April 15, 1986, employees working from unguardedplatform at southeast area were exposed to fall hazard of 30 feet[because] guardrails or safety belts were not in use.\” The major issuepresented here is whether the standard, which requires guardrails onlyon a \”floor or platform,\” applies to the cited balcony.The inspector testified that he observed two employees on a balcony whenhe arrived at the jobsite on April 15. The employees were within abouttwo feet of the unguarded edge, and were not wearing safety belts. Theywere grinding concrete at a depression where a patio door was to beinstalled, between the balcony and the main floor. This work would takeabout an hour.The balcony was five feet wide and 20 feet long. It extended out fromdoorways at the building line. The day of the inspection (April 15) wasthe first day that the grinding had been done on any balcony. Similargrinding was done on at least two other balconies after April 15.However, the inspector did not know if work was performed regularly onthe balconies. Pace states in its brief that the building was to haveonly four stories, and that statement is not disputed.The parties and the judge focused on whether the balcony was a\”platform.\” The judge found that it was not, and vacated the item,essentially because he found that the balcony was not built as a\”working space.\” The word \”platform\” is defined in ?1926.502(e) as:A working space for persons, elevated above the surrounding floor orground, such as a balcony or platform for the operation of machinery andequipment.The judge’s view has some support in the extensive case law on themeaning of the term. For example, the Second Circuit has heldthe term applies only to:elevated working spaces . . . which are designed primarily for theoperation of machinery and equipment and which require employee presenceon a predictable and regular basis; and not to spaces where onlyoccasional maintenance or repair work is performed.General Electric Co. v. OSHRC, 583 F.2d 61, 65 (2d Cir. 1978)(interpreting comparable general industry requirements for platforms at29 C.F.R. ? 1910.23(c)(1)). However, the courts are in some disagreementas to what a \”platform\” is. E.g., Donovan v. Anheuser-Busch, Inc., 666F.2d 315 (8th Cir. 1981) (court declined to follow General Electric,stating that \”platform\” includes \”those elevated surfaces whereemployees work and which in the reasonable judgment of the Secretaryneed protection from injury by guardrails\”).We need not resolve whether this balcony served as a \”platform\” asdefined in the standard, because the standard applies also to a \”floor,\”and the balcony fits the standard definition of a \”floor.\” For example,Webster’s Third New International Dictionary provides a number ofmeanings for \”floor,\” including the following:the surface or the platform of a structure onwhich to walk, work, or travel (the [floor] of a bridge) (the [floor] ofa prize ring).Furthermore, the Random House Unabridged Dictionary defines \”floor,\”among other things, as:A Level, supporting surface in any structure:the floor of a bridge; the elevator floor….a platform or prepared level area for a particular use: a threshingfloor.(Emphasis added). The balcony here was directly connected to the fourthlevel, was approximately level with it, and was designed to be steppedonto directly from the interior of the fourth level. It was a \”floor\” ascommonly defined, whether or not it was designed as a work \”platform.\”Cf., Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 176-77 (D.C.Cir. 1984) (walkway was not platform as alleged, but court amendedpleadings sua sponte to conform to evidence that it was unguarded runwayin violation of different standard).Thus, the cited section applied to the balcony. Further, since therewere no guardrails, Pace did not comply with the terms of the section.There is no dispute that employees were exposed to the fall hazardscovered by the section (they stood as close as two feet from the edge,with no fall protection). In addition, the Secretary showed therequisite knowledge on the part of Pace. The employees were in plainsight when the inspector spotted them upon his arrival. Tile employeeshad been assigned to work on the area between the main floor and thebalcony, and the evidence did not indicate that they were told not towork from the balcony. Again, the problem of failure to enforce fallprotection requirements was a longstanding problem. Thus, with theexercise of reasonable diligence, Pace could have known of the violativeconditions. Pace’s defense of unpreventable employee misconduct failsfor the same reason it was rejected under Items 1(a) and (b). Item 2 isaffirmed.Classification of violations; penaltiesThe violations were clearly serious, as alleged, because 30-foot fallhazards were involved. See 29 U.S.C. ? 666(k). As to appropriatepenalties, the Secretary proposed a $630 penalty for Items 1(a) and 1(b)combined, and the judge assessed that amount.We affirm that assessment.The undisputed testimony of the inspector wasthat Pace had more than 100 employees. Pace’s substantial safety programshowed good faith, although its enforcement of its work rules on thisworksite fell well short of meeting its obligation to comply with theapplicable OSHA standards. Pace had no history of violations in thearea, but the gravity of the violations was severe, and numerousemployees were exposed on the day of Stone’s accident alone. As to Item2, the Secretary proposed a $450 penalty. We affirm that amount, for thesame reasons given above. See 29 U.S.C. ? 666(j).Accordingly, Items 1(a), 1(b), and 2 of the citation are affirmed asserious violations, and penalties totaling $1,080.00 are assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerApril 12, 1991————————————————————————SECRETARY OF LABOR,Complainant ,v.PACE CONSTRUCTION CORPORATION,Respondent.OSHRC Docket No. 86-0758APPEARANCES: Laurie E. Rucoba, Esquire, Office of the Solicitor, U. S.Department of Labor, Fort Lauderdale, Florida, on behalf of complainantR. Daniel Douglass, Esquire, Atlanta, Georgia, on behalf of respondentDECISION AND ORDERSALYERS, Judge: At the time in question respondent, Pace ConstructionCorporation, was the general contractor at the Atlantic Plaza Project,an office and retail complex in Delray Beach, Florida. Respondent’semployees were engaged in performing certain concrete forming work andcarpentry in connection with this project, which included theconstruction of a four-story building. Other aspects of the operationwere conducted by subcontractors under respondent’s general supervision.On April 14, 1986, a Pace employee, John Stone, fell from an outriggerscaffold and was seriously injured. This accident was duly reported tothe Occupational Safety and Health Administration, and an inspectionprecipitated the issuance of a serious citation charging respondent withviolations of 29 U.S.C. ? 651, et seq., and the regulations issuedthereunder. The citation was contested by respondent, and the matter washeard in Fort Lauderdale, Florida, on September 23, 1986.At issue in this case is whether respondent violated the followingregulations as alleged in the Secretary’s citation and complaint:1a29 CFR 1926.28(a): Appropriate personal protective equipment was notworn by employees in all operations where there was exposure tohazardous conditions:(a) On or about April 14, 1986, employee working from 30 feet highoutrigger platform at the southwest 4th level, was not wearing safetybelt attached to an independent safety line and standard railings werenot installed on platform.1b29 CFR 1926.451(a)(4)(amended to include 1926.451(g)(4) and(g)(5)):[[1\/]] Standard guardrails and toeboards were not installed onall open sides and ends of platforms more than 10 feet above the groundor floor:(a) On or about April 14, 1986, employees, working on outriggerscaffolds which were not equipped with standard railings, were exposedto fall hazard of 30 feet while working on east end south side of 4th level.229 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or moreabove adjacent floor or ground level, were not guarded by a standardrailing or the equivalent on all open sides:(a) On or about April 15, 1986, employees working from unguardedplatform at southwest area were exposed to fall hazard of 30 feet,guardrails or safety belts were not in use.Items 1a and 1b of the citation relate to circumstances existing on theday of the accident (April 14) with respect to the actions of John Stoneand other carpenters working from outrigger scaffolds. Item 2 relates toan incident observed by Compliance Officer Joseph DeMartino on the dayfollowing the accident (April 15) involving certain employees allegedlyworking on an unguarded platform without fall protection. These twooccurrences will be separately discussed.Serious Citation No. 1Items 1a and 1bThe circumstances in existence at the time of the accident are not indispute. On the morning of April 14, Stone was using an outriggerscaffold on the fourth floor of the building in connection with theplacement of boards or \”stripping\” along the bottom of tresses \”so thejoints wouldn’t curl\” (Tr. 17, 39). The job required a minimum of workand was not expected to take more than a few minutes to complete (Tr.40). Stone and two other employees placed some planks on the scaffold inpreparation for the work but did not secure the planks nor did theyerect guardrails or toeboards (Tr. 51). Stone went on the scaffoldwithout a safety belt, stepped on a loose plank, and fell to the groundbelow sustaining serious injury.[[2\/]] Photographs taken by thecompliance officer following the accident depict the scaffolding inquestion and clearly show the absence of guardrails and toeboards (Exs.C-2, C-3). The Secretary’s evidence fully supports the basic elementsnecessary to establish a change under the cited standards.Respondent, at the hearing and in its brief, does not call into questionthe facts just outlined but seeks to prevail on the basis that Stone’sactions were an isolated incident of employee misconduct. To establishthis defense, an employer must show that the action of its employee wasa departure from a work rule that was uniformly and effectivelycommunicated and enforced. Frank Swidzinski Co., 78 OSAHRC 28\/B5, 9 BNAOSHC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627, 1981); Merritt ElectricCo., 1981 OSAHRC 75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No.77-3773, 1981); Wander Iron Works, Inc., 1980 OSAHRC 40\/A2, 8 BNA OSHC1354, 1980 CCH OSHD ? 24,457 (No. 76-3105, 1980); Ted Wilkerson Inc.,1981 OSAHRC 70\/D8, 9 BNA OSHC 2012, 1981 CCH OSHD ? 25,551 (No. 13390,1981); H. B. Zachary, 80 OSAHRC 9\/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ?24,196 (No. 76-1393, 1980), aff ‘d, 638 F.2d 812 (5th Cir. 1981).Respondent had a work rule requiring the use of safety belts when anemployee was \”exposed to a fall of four (4) feet or more\” (Ex. R-11,Rule 14), and the existence of this rule is conceded by the Secretary(Secretary’s Brief, page 8). Respondent conducted regular safetymeetings at this project, as documented in Exhibits R-3 through R-8,although this documentation does not indicate that the wearing of safetybelts was specifically discussed. It further appears respondent hadsafety belts available for use at the project. The crucial question forresolution is whether respondent effectively communicated and enforcedit safety belt work rule, and on this point the evidence is conflicting.The Secretary called two witnesses, Richard Barkalow, respondent’scarpenter foreman, and John Fraser, a journeyman carpenter to supporthis position. The testimony of these witnesses tends to show that thewearing of safety belts was left to the discretion of individualemployees and was not rigidly enforced. Barkalow, a member ofmanagement, conceded that he did not wear a safety belt on the job (Tr.23) and testified he \”didn’t watch\” employees and that wearing belts was\”up to them\” Tr. 21-22). Fraser, who worked with Stone, testified \”therewasn’t too many people wearing\” safety belts before the accident (Tr.52) and that employees were not reprimanded for failure to wear thebelts (Tr. 52-53).Respondent’s witnesses generally supported a position that employeeswere told to wear belts and were verbally reprimanded when infractionswere observed by supervisory personnel. James Muziak, respondent’s jobsuperintendent, testified that he regularly instructed and repeatedlyreminded employees to use safety belts and tie off whenever they wereexposed to fall hazards (Tr. 215). His testimony was supported by JamesL. Rittnour (Tr. 160, 165) and Jose J. Motez (Tr. 195-201). However,Willie Thomas, respondent’s lead laborer, testified he did not alwayswear a belt (Tr. 188) and that \”people take a chance\” if they \”gotnerve\” (Tr. 186).To resolve this conflicting testimony, the undersigned has relied inlarge measure upon his observations of the witnesses during the courseof their testimony, including their demeanor and candor when respondingto critical questions. In this light the Secretary’s witnesses were morecredible than those offered by respondent, and it is concluded thedecision to wear safety belts was left largely to employee discretion.In attempting to resolve the effectiveness of respondent’s safetypolicies, the company’s \”Disciplinary Action Program,\” introduced asRespondent’s Exhibit 1, has also been considered. This program sets upprocedures to assure that respondent’s safety policies are carried outand provides for layoffs and termination when appropriate. The recordreflects only two written reprimands were issued pursuant to thisprogram at this jobsite. On April 4, 1986, an employee was cited for notwearing a shirt (Ex. R-9) and on April 21, 1986 (after the accident), anemployee was reprimanded for failure to tie off (Ex. R-10). It appearsin the record that Muziak did not implement this program until March of1986 due to the fact that company forms for use in the program were notprovided until then (Tr. 225-226). Prior to the accident, respondent’sprogram consisted primarily of verbal reprimands administeredhaphazardly and without effective results.Respondent’s claim that it lacked knowledge of its employees’ failure towear safety belts has also been considered. It is abundantly clear inthis record that respondent’s supervisors were well aware of thenecessity for wearing belts to protect against fall hazards at thisproject. Indeed, James Muziak, the job superintendent, admitted heissued verbal reprimands regarding belts to everyone on the job at leastonce (Tr. 228). The fact that these oral reprimands were required onsuch a wide-ranging scale shows respondent’s awareness of the problemand is a good indication that the seat belt rule was not effectivelyenforced or taken seriously by employees. See A. C. Dellovade, 13 BNAOSHC 1027, (No. 83-1189, 1984), issued on January 12, 1987.In summary, the record confirms that respondent’s employees routinelyviolated the company’s seat belt rule prior to the accident and that theevents occurring on April 14, which resulted in serious injury toemployee Stone, did not constitute an isolated incident of employeemisconduct.Serious Citation No. 1Item 2This citation charges respondent with a violation of 29 C.F.R.?1926.500(d)(1) [[3\/]] for failure to provide guardrails around abalcony on the southwest side of the building or, in the alternative,that employees working on this balcony were not wearing safety belts toprotect against falls.The charge results from an observation made by the compliance officer onthe second day of his inspection (April 15). As he approached the worksite, the compliance officer observed two employees working without fallprotection on an unguarded platform at the fourth floor level of thebuilding under construction. He proceeded to the job trailer and advisedsuperintendent Muziak of this situation (Tr. 72-73), and Muziakcontacted Barkalow by radio to inquire about the circumstances.According to the compliance officer, Barkalow reported to Muziak thatthe involved employees were employed by Pace and were performinggrinding work on the balcony without wearing safety belts (Tr. 73-74).This incident was confirmed in the testimony of Muziak (Tr. 219-221) andalso by Willie Thomas, who was at the work site and observed theemployees working without belts at the fourth floor level (Tr. 187-188).Respondent attacks this charge on the grounds that the balcony inquestion was not a \”platform\” as contemplated by the standard and alsothat respondent lacked actual or constructive knowledge that theemployees performing this work were not wearing safety belts.There is merit to respondent’s first argument. The term \”platform\” asused in the cited standard is defined at 29 C.F.R. ? 1926.502(e) follows:A working space for persons, elevated above the surrounding floor orground, such as a balcony or platform for the operation of machinery orequipment.It is clear that the balcony in question was never intended to be a workplatform which would require the installation of standard guardrails.The grinding work was done at the interior edge of the building and wasperformed either from within the building or at a location on thebalcony well back from the open edge (Tr. 184-185, 219-220). This workwas a one-time operation and required less than an hour to complete (Tr.192-193).Commission decisions indicate that applicability of the standard dependson the nature of the structure, the frequency and regularity of use byemployees, and whether designed and intended to function as a workingsurface. Clement Food Company, 11 BNA OSHC 2120, 2126 (No. 80-607,1984); Globe Industries, Inc., 82 OSAHRC 24\/D4, 10 BNA OSHC 1596, 1982CCH OSHD ? 26,048 (No. 77-4313, 1982). In Rexco Industries, Inc., 80OSAHRC, 32\/A2, 8 BNA OSHC 1227, 1980 CCH OSHD ? 24,376 (No. 15350,1980??), the Commission vacated a citation under ? 1926.500 (d)(1) basedon the lack of evidence that any employees were assigned to work on thecited fourth floor surface or that the employer knew or should haveknown that employees would go onto the surface to perform the work.Similarly, the evidence in the present case shows that the balcony inquestion was not used or intended to be used as a platform from which toperform work. The employees were doing grinding work to the balconyitself and were not expected to go onto the balcony to perform the work.Under these circumstances the requirement to install standard guardrailsis inappropriate, and this citation will be vacated insofar as itrequires the installation of guardrails and toeboards.In the absence of guardrails, however, employees should have beenprotected by safety belts, and respondent’s argument that it lackedconstructive or actual knowledge that employees were performing thiswork without wearing safety belts is rejected for the reasons previouslyrecited in regard to Citation No. 1. The fact that this incidentoccurred the day following the accident serves only to bolster aconclusion that respondent’s safety belt rule was routinely disregardedby respondent’s employees and supervisors. Since penalties have alreadybeen assessed for this infraction, no further penalties will be levied.FINDINGS OF FACT1. The respondent, Pace Construction Corporation, is a generalcontractor with its home office in Atlanta, Georgia. During the periodin question, respondent was engaged in the construction of an office andretail complex in Delray Beach, Florida.2. Respondent is a corporation which has employees who handle orotherwise work on goods received in or produced for commerce.3. On the morning of April 14, 1986, John Stone, an employee ofrespondent, was using an outrigger scaffold on the fourth floor level ofa building under construction. The scaffold in question had been hastilyrigged. The planks in use on the scaffold were not secured to the beamsnor had guardrails and toeboards been installed around the perimeter.While working on the scaffold without a safety belt, Stone stepped on aloose plank and fell to the ground below sustaining serious injury.4. Respondent had a work rule requiring the use of safety belts when anemployee was exposed to a fall hazard. This work rule was noteffectively communicated to employees nor was it enforced byrespondent’s supervisory personnel. The wearing of safety belts was leftlargely to the discretion of individual employees, and the safety beltrule was frequently violated by respondent’s employees.5. On April 15, 1986, employees of respondent were doing some grindingwork on a balcony at the fourth floor level of a building underconstruction. The grinding work was done at the interior edge of thebuilding and was performed either from within the building or at alocation on the balcony well back from the open edge. The balcony wasnot used as a work platform.CONCLUSIONS OF LAW1. Respondent is an employer engaged in a business affecting commerceand is subject to the jurisdiction of the Occupational Safety and HealthReview Commission.2. Respondent has violated the provisions of 29 C.F.R. ? 1926.28 (a) bypermitting employees to work without safety belts to protect them fromhazardous falls.3. Respondent has violated the provisions of 29 C.F.R. ? 1926.451 (g)(4)and (g)(5) by permitting employees to work on outrigger scaffolds whichwere not provided with guardrails and toeboards and where planking wasunsecured.4. Respondent did not violate the provisions of 29 C.F.R. ? 1926.500 (d)(1).ORDER It is hereby ORDERED:1. Serious Citation No. 1, items 1a and 1b, is affirmed with a penaltyof $630 assessed.2. Serious Citation No. 1, item 2, is vacated.EDWIN G. SALYERSJudgeDate: March 23, 1987————————————————————————FOOTNOTES:[[1\/]] That section provides:?1926.28 Personal protective equipment(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[2\/]] Those sections provide:?1926.451 Scaffolding.(g) Outrigger scaffolds.(4) Planking shall be laid tight and shall extend to within 3 inches ofthe building wall. Planking shall be secured to the beams.(5) Guardrails approximately 42 inches high, with a midrail … andtoeboards, shall be installed at all open sides and ends on allscaffolds more than 10 feet above the ground or floor. …[[3\/]] ? 1926.500 Guardrails, handrails, and covers.(d) Guarding of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or theequivalent,…. on all open sides, except where there is entrance to aramp, stairway, or fixed ladder. The railing shall be provided with a.standard toeboard wherever, beneath the open sides, persons can pass, .. . .[[4\/]] The current language of the standard (n.1 supra) indicates thatthe Secretary need only prove one of those two elements. (It uses thedisjunctive word \”or\” between them.) The basis for the Commission’sholding in L. E. Myers that both elements must be proved was that: (1)the standard as originally drafted required compliance only where bothelements existed, and (2) the current version, using the disjunctive\”or,\” was an invalid change, because it was made without public noticeand comment. 12 BNA OSHC at 1611-14, 1986-87 CCH OSHD at 35,601-04.[[5\/]] The rule stated:Any employees exposed to a fall of four (4) feet or more must be tiedoff with safety belt and lanyard where no other type of fall protectionis provided.The Secretary does not dispute that this rule would be adequate, iffollowed.[[6\/]] The judge stated:To resolve this conflicting testimony, the undersigned has relied inlarge measure upon his observations of the witnesses during the courseof their testimony, including their demeanor and candor when respondingto critical questions. In this light the Secretary’s witnesses were morecredible than those offered by respondent, and it is concluded thedecision to wear safety belts was left largely to employee discretion.[[7\/]] Pace argues that this same witness gave contradictory testimonywhen he stated that his own failure to wear a safety belt on theunguarded balcony at issue in Item 2 was an \”isolated incident.\”However, the employee was referring only to incidents on balconies, notscaffolds. It is undisputed that the balcony at issue in Item 2 was thefirst balcony worked on by employees. The employee also testified thatimmediately after Stone’s fall, Pace enforced the safety belt rule moreintensively.[[8\/]] Pace argues that Muziak did not so testify, but its quotationfrom his testimony is selective and transposes certain testimony. Thetranscript supports the judge’s reading of Muziak’s testimony, and weadopt that reading. Pace asserts that at one point in his decision, thejudge made a finding that contradicts that reading of Muziak’stestimony. However, the judge found only that no written reprimands hadbeen issued for safety belt violations. That statement does notcontradict his other findings.[[9\/]]Pace has not raised the issue of whether the outrigger scaffoldguarding requirements are more specifically applicable to the citedconditions than ?1926.28(a). Thus, we need not resolve that issue.[[10\/]] There was testimony that toeboards were never used beforeStone’s accident. Pace argues that the failure to use toeboards was deminimis because no employees worked below the scaffolds, so thereexisted no hazards as to them from falling materials. We need notdetermine whether Pace is correct on this point, in light of theevidence establishing other deficiencies in the guarding of the scaffoldthat clearly presented serious hazards to employees.[[11\/]] Pace relies on foreman Barkalow’s testimony that he never sawscaffolding in use that was not guarded or properly planked. However,Barkalow was not directly responsible for scaffold erection, and he didnot testify that he checked on compliance with scaffold guardingrequirements. The evidence showed that he did not check on compliancewith Pace’s safety belt rule. We therefore conclude that the testimonyquoted above, by the lead carpenter responsible for scaffold erection,was based on closer observation, so far as this record shows.[[12\/]] Pace argues that Fraser’s testimony is not credible because hedid not perform scaffolding work and did not remember whether safetybelt’s were carried out to the jobsite for employee use each day beforethe accident. We do not think those factors negate the value of histestimony. The judge credited it over that of Pace’s witnesses on theissue of safety belts. We find no reason not to credit Fraser’stestimony regarding the condition of the southeast scaffold on themorning of the accident.[[1\/]] The original citation alleged only a violation of 29 C.F.R.?1926.451(a)(4), which requires guardrails and toeboards on scaffoldplatforms. In his complaint, the Secretary amended the citation byalleging additional violations of 29 C.F.R. ? 1926.451(g)(4) and (g)(5),which requires planking be \”laid tight\” and \”secured to the beams\” on\”outrigger scaffolds,\” as well as guardrails and toeboards. The evidenceadduced at the hearing clearly reflects the \”outrigger scaffold\”regulations are more appropriate. While respondent initially opposed theamendment in its answer, no further objections were raised at thehearing or in respondent’s brief nor is there any indication that theproposed amendment surprised or hindered respondent in its defense.Accordingly, the Secretary’s amendment is allowed. See H. B. Zachary Co.v. OSHRC, 638 F.2d 812 at 816.[[2\/]] As a result of the accident, Stone suffered from head trauma anda memory deficit which prevented him from appearing as a witness in thecase (See Ex. C-1).[[3\/]] Section 1926.500(d)(1) provides:(1) Every opensided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboard wherever,beneath the open sides, persons can pass, or there is moving machinery,or there is equipment with which falling materials could create a hazard.”