“Docket No. 86-0758 SECRETARY OF LABOR, Complainant, v. PACE CONSTRUCTION CORP., Respondent.OSHR DOCKET NO. 86-0758DECISION Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:This case involves 30-foot fall hazards from scaffolds and abalcony at the perimeter of a building under construction. The parties raise objections toa decision of an administrative law judge concerning alleged violations of theOccupational Safety and Health Act, 29 U.S.C. ?? 651-78, relating to those hazards. Thejudge affirmed one item of the Secretary’s citation to Pace Construction Corp. and vacatedanother item. For the reasons set forth below, we affirm both items, and assess theproposed penalties, totaling $ 1,080.00.BackgroundPace was the general contractor for the construction of anoffice and retail complex in Delray Beach, Florida. While doing carpentry work on theproject, Pace employee J.W. Stone fell 30 feet to the ground from an unguarded outriggerscaffold outside the fourth floor of one of the buildings. As a result of this fall, hesuffered serious injuries.An OSHA inspection followed. Item 1(a) of the resultingcitation alleged that 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\/]] That scaffold was on the\”southwest side, fourth level\” of the building. Item 1 (b), as amended, allegedthat Pace failed to provide guardrails and planking for a different scaffold, located atthe southeast side of that level, 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 employees wereworking, once again outside the fourth level, in violation of 29 C.F.R. ? 1926.500(d)(1).[[3\/]] The judge affirmed Items 1(a) and 1(b) and vacated Item 2. For the reasons setforth below, we affirm Items 1(a) and 1(b) as serious violations, and reverse the judge onItem 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.1 supra), under current Commission precedent, the Secretary must show that:(1) there was exposure to a hazardous condition, and (2) some other section in Part 1926indicates a need for using personal protective equipment. L.E. Myers Co., 12 BNA OSHC1609, 1614, 1986-87 CCH 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, 108 S.Ct. 479 (1987)[[4\/]] The aforementioned precedent was in effect when this case was tried. The Secretaryalso must prove that (3) the employer failed to require the use of the equipment. Id.There is no dispute that the first element of the allegedviolation was proven. 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 nosafety belt. As to the second element, 29 C.F.R. ? 1926.105(a) indicates the need forsafety belts where, as here, the workplace is more than 25 feet above the ground. L. E.Myers, supra. The evidence demonstrates that the second element also was established.We further find that the Secretary proved the third element,because the evidence supports the judge’s conclusion that Pace did not adequately enforcea safety belt requirement on the worksite. It is true that Pace had a written safety beltrule. [[5\/]] In addition, Pace required employees to read and sign a copy of its safetyorientation booklet–which included the safety belt rule–before they began work.Furthermore, safety belts had been discussed at certain of Pace’s safety meetings, at thesite, before the accident.However, the Secretary presented sufficient evidence which demonstrated that Pace’s safetybelt rule was not adequately enforced on the worksite, especially in light of the manyviolations found by its superintendent on his walkarounds. Cf., e.g., H. E. Wiese, Inc.,10 BNA OSHC 1499, 1505; 1982 CCH OSHD ? 25,985, p. 32,614 (No. 78-204, 1982) (explainingnecessary elements of safety rule enforcement, in analyzing employer’s defense ofunpreventable employee misconduct. There was abundant testimony that the safety belt rulewas not enforced consistently by Pace’s foremen, but rather the decision as to whether touse the safety belts was left largely to employee discretion. Pace was therefore not incompliance with the standard’s mandate, which expressly made it \”responsible forrequiring the wearing of appropriate personal protective equipment in all operations\”covered by the standard. The decision whether to comply with company safety rules whichreflect OSHA requirements cannot be left to the employee’s discretion. See, e.g., AmericanBechtel, 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 routinelyenforced was disputed, the judge resolved the conflicts in favor of the Secretary’switnesses.[[6\/]] The judge concluded that Pace’s disciplinary program \”consistedprimarily of verbal reprimands administered haphazardly and without effectiveresults.\” He further found that Pace’s employees \”routinely violated thecompany’s…rule prior to the accident,\” and he rejected Pace’s defense that thenoncompliance resulted from unpreventable employee misconduct.The Secretary’s witnesses, whose testimony the judge credited,were Fraser, a Pace carpenter at the time of the accident, and Barkalow, the foreman overthe carpenters. Fraser testified that Stone was not the only employee on the scaffoldwithout a safety belt at the approximate time of the accident. He added that he saw\”probably five\” employees working without safety belts on another inadequatelyguarded scaffold on the morning of the accident. (That scaffold is the subject of Item1(b).)Fraser further testified that, before the accident, he did notunderstand when he was supposed to wear a belt. He added that \”[t]here wasn’t [sic]too many people wearing safety belts\” before the accident and that only two safetybelts were provided for the crews until after the accident. In addition, Fraser testifiedthat, to his knowledge, no one was reprimanded before the accident for failing to use asafety belt. Barkalow testified that he did not watch the carpenters who erectedscaffolds, to see if they wore safety belts: \”the belt was there; if they didn’t[wear it], that was up to them.\”In addition to Fraser and Barkalow’s statements, there wastestimony by some of Pace’s own witnesses that supports the judge’s findings. One ofPace’s lead laborers testified that employees who had \”nerve\” would not wearsafety belts while working outside the building perimeter.[[7\/]] Pace’s jobsuperintendent, James Muziak, testified that he had issued verbal reprimands to everyemployee on the job about failure to wear safety belts.[[8\/]] The judge concluded: The fact that these oral reprimands were required on such awide-ranging scale shows respondent’s awareness of the problem and is a good indicationthat the … [safety] belt rule was not effectively enforced or taken seriously byemployees …The evidence indicates that essentially all of the supervisoryreprimands were issued by Muziak, who typically was away from the work areas most of theday.We accept the judge’s assessment of the witnesses’ credibility, and his conclusionsregarding Pace’s enforcement of its safety belt rule. The Commission has previously statedthe principles governing review of a judge’s credibility findings:Normally, we will accept the administrative law judge’sevaluation of the credibility of witnesses because it is the judge who has lived with thecase, heard the witnesses and observed their demeanor… However, the judge shouldidentify the conflicting testimony and explain the reasons for failing to credit awitness’s testimony or for crediting the testimony 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 judge identified theconflicting testimony and explained that he credited the Secretary’s witnesses overPace’s, where their testimony conflicted, based on his observations of their\”demeanor and candor\” as they testified. These are matters that the hearingjudge is in a unique position 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 contraryto the overwhelming weight of the evidence (basically, the testimony of its currentemployees). In particular, Pace contends that Fraser’s testimony is inconsistent with thatof other witnesses in many respects, and therefore is not credible. However, the testimonyPace relies on does not actually contradict Fraser’s.In this regard, Pace claims that Fraser’s testimony is inconsistent with the judge’sfinding that superintendent Muziak had issued verbal reprimands to everyone on the job.However, Fraser merely testified that he did not know of anyone being reprimanded prior tothe accident for not wearing a safety belt. Muziak did not state that his verbalreprimands were all issued before the accident. Additionally, no witness claimed thatFraser knew a verbal reprimand before the accident.Pace also attacks Fraser’s testimony regarding employeesworking without safety belts on a particular scaffold — which is the subject of Item 1(b)– on the morning of the accident. Pace points out that lead carpenter Rittnour testifiedthat he was out on that scaffold setting it up that morning and \”I was tied off everyday I went out there.\” However, Fraser did not testify that Rittnour was one of theemployees he saw on that scaffold. He merely testified that Rittnour later helped movethat scaffolding to another fourth floor location for patching work.In addition, Pace criticizes Fraser’s testimony that, beforethe accident, he did not understand when he was supposed to wear safety belts onscaffolds. Pace notes Fraser’s testimony that he was told in safety meetings to use safetybelts while engaged in scaffold work. Fraser acknowledged reading and signing Pace’ssafety orientation booklet, which contained the safety belt rule, when he was first hiredin 1985. However, the relevant questions by Pace’s counsel did not elicit what instructionFraser got before the accident, as opposed to after it. Fraser testified that only afterthe accident did everyone wear safety belts when working within six feet of the building’sedge.We also reject Pace’s argument that Barkalow’s testimonysupports its position. Pace relies on Barkalow’s testimony that employees were instructedin safety meetings to use a safety belt when erecting guardrails on scaffolds. Barkalowfurther testified that he carried safety belts to the employees every morning and toldthem, \”Here they are, boys.\” However, that testimony does not show that safetybelt use actually was enforced on the worksite. Nor does it contradict the testimonyrelied on by the judge. Thus, we accept the judge’s credibility findings to the effectthat Pace’s safety belt rule was not enforced adequately.Pace next contends that its safety program was adequate underInland Steel. supra. That argument is unpersuasive. In Inland Steel, the Commission foundthat the Secretary had failed to prove that Inland’s safety rules were not properlyenforced. The basis for the Commission’s decision, however, was its acceptance of thejudge’s credibility findings, which resolved the conflicts in the testimony in favor ofthe employer’s witnesses. Those witnesses had testified to the effect that Inland Steel’swork rules were enforced consistently. 12 BNA OSHC at 1979-84, 1986-87 CCH OSHD at pp.36,006-11. Here, by contrast, we have accepted the judge’s credibility findings in favorof those witnesses who testified to the effect that compliance with Pace’s safety rule wasnot adequately enforced, but rather left largely to employee discretion. Those credibilityfindings dispose of the adequacy of enforcement issue.Pace further argues that the judge erred in rejecting itsdefense of unpreventable employee misconduct. Pace asserts that its defense is supportedby a decision of the Eleventh Circuit in Daniel International Corp. v. OSHRC, 683 F.2d 361(11th Cir. 1982) It is not. In Daniel International, the court vacated a citation issuedto a construction firm on the ground that the employees,’ failure to were safety belts wasunpreventable misconduct. However, unlike here, the employer and its foreman thereconsistently enforced the safety belt requirement, making frequent daily checks to becertain they were being used. The court noted that the foreman \”did everything exceptlead the crew by the hand.\” Id. at 365. The rules called for termination of anemployee who failed to wear a safety belt, and the employer proved that its rule had beenenforced. At Pace’s worksite, the rule was not adequately enforced by its foremen.Pace argues that the Secretary failed to show that, with theexercise of reasonable diligence, Pace could have known that Stone was exposed to a fall,because that exposure was of short duration. However, the violation is not confined toStone’s situation. The violation is Pace’s failure, through its foremen, to require thewearing of safety belts, where needed, over a long period of time. Its superintendent knewor reasonably could have known of that failure, because he had to reprimand each employeefor noncompliance with Pace’s safety belt rule during the course of the job.Clearly, Pace knew or reasonably could have known of the violation. See 29 U.S.C. & ?666(k).Thus, all the elements of a violation a have been establishedhere: the standard applied to the conditions, its terms were violated, Pace employees hadaccess to the hazards, and Pace had the requisite knowledge of the violation. See, e.g.,Trumid Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ? 29,078, p. 38,859 (No.86-1139, 1990). The Secretary has prevailed under the Commission’s statement of her burdenof proof of a ? 1926.28(a) violation. See L. E. Myers, supra. In addition, based on theundisputed evidence we find that Pace recognized safety belts to be a feasible means ofabatement, and that a significant risk of harm existed.[[9\/]] Item 1(a) is affirmed.Item 1(b):Southeast scaffoldAs noted above, Fraser testified that a second outriggerscaffold was used the same morning that Stone fell. He testified that this scaffold, asinitially erected that morning on the southeast side, fourth level, had a handrail, but nomidrail or toeboard, and that Pace’s employees working on it had not worn safety belts.According to Fraser’s testimony, the scaffold later was moved, and Pace employees againworked from it without safety belts, although its planks were not secured and he believedit had no guardrail. One of the cited standards, ? 1926. 451(g)(4) (n. 2 supra), requiresthat planking on outrigger scaffolds \”be secured to the beams.\” The other citedstandard, ? 1926.451(g)(5) (n.2 supra), requires that outrigger scaffolds have midrails,toeboards, and a standard handrail. The OSHA inspector testified that he learned about thelack of proper guarding on the southeast scaffold from conversations with employees.As to Pace’s knowledge of the conditions, Fraser testified thatnormally Paces scaffolds had a guardrail on the exterior side, but none on theends.[[10\/]] One of Pace’s lead carpenters testified that \”just occasionally\” hesaw employees erect or dismantle scaffolding in an improper manner, and that he never sawemployees reprimanded for doing so. [[11\/]] He further testified that he observedemployees engaging in this improper practice on the day of the accident. SuperintendentMuziak testified at one point that he had never seen Pace scaffolds in use that were notproperly erected. However, he then acknowledged that he had seen ones that lacked a fewplanks, and that he told the employees to correct the situation. Pace presented no directtestimony as to the condition of the cited scaffold [[12\/]]Thus, the evidence establishes that ? 1926.451(g)(5) appliedto the scaffold, that its terms were violated, and that employees had access to thehazards. The evidence also indicates that, with the exercise of reasonable diligence, Pacecould have known of the noncompliance.Pace’s sole defense to this charge is its claim that itssupervisors communicated and enforced work rules requiring proper scaffold guarding, andthat any noncompliance was therefore the result of unpreventable employee misconduct. Toestablish that affirmative defense, the employer \”must demonstrate that it took allfeasible steps to prevent the [violation], and that the actions of its employees were adeparture from a uniformly and effectively communicated and enforced work rule of whichdeparture [the employer] had neither actual nor constructive knowledge.\” DanielInternational, 683 F.2d at 363.In support of its defense, Pace points to Muziak’s testimonythat he instructed several carpenters on proper scaffold guarding, and ordered that theyalone were to be in charge of erecting scaffolds. However, the evidence does not indicatethat Pace’s scaffold guarding rules were communicated to employees generally, or that itsforemen enforced the rules in practice.Although Muziak testified as to his efforts to have theguardrail deficiencies he saw corrected, his individual enforcement efforts wereapparently ineffective, as demonstrated by the numerous unguarded structures on which Paceemployees worked without fall protection during the two days involved here. As discussedabove, in addition to the southeast scaffold, Stone’s scaffold was unguarded, and therewas no guarding on the balcony on the same level the next day. The inspector testifiedthat on the day of Stone’s fall, a third scaffold, on the same level, also lackedguardrails on its ends and part of its exterior side.The testimony discussed above, including the testimony from witnesses Pace relies on,indicates that they knew scaffolds were not consistently erected properly. Thus, theevidence shows that Pace had reason to know that the southeast scaffold, like Stone’sscaffold, might not have guardrails or proper planking. It is clear that Pace has failedto show that any work rule on scaffold guarding was effectively communicated or enforced.We therefore conclude that, with the exercise of reasonable diligence, Pace could haveknown of the violative conditions. For the reasons cited above, Item 1(b) is affirmed.Item 2:\u00a0 Balcony on fourth levelThe Secretary alleged a violation of ?1926.500(d)(1) (n. 3supra), in that \”[o]n or about April 15, 1986, employees working from unguardedplatform at southeast area were exposed to fall hazard of 30 feet [because] guardrails orsafety belts were not in use.\” The major issue presented here is whether thestandard, which requires guardrails only on a \”floor or platform,\” applies tothe cited balcony.The inspector testified that he observed two employees on abalcony when he arrived at the jobsite on April 15. The employees were within about twofeet of the unguarded edge, and were not wearing safety belts. They were grinding concreteat a depression where a patio door was to be installed, between the balcony and the mainfloor. This work would take about an hour.The balcony was five feet wide and 20 feet long. It extendedout from doorways at the building line. The day of the inspection (April 15) was the firstday that the grinding had been done on any balcony. Similar grinding was done on at leasttwo other balconies after April 15. However, the inspector did not know if work wasperformed regularly on the balconies. Pace states in its brief that the building was tohave only 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, essentiallybecause 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 surroundingfloor or ground, 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 the meaning of the term.For example, the Second Circuit has heldthe term applies only to:elevated working spaces . . . which are designed primarily forthe operation of machinery and equipment and which require employee presence on apredictable and regular basis; and not to spaces where only occasional maintenance orrepair work is performed.General Electric Co. v. OSHRC, 583 F.2d 61, 65 (2d Cir. 1978)(interpreting comparable general industry requirements for platforms at 29 C.F.R. ?1910.23(c)(1)). However, the courts are in some disagreement as to what a\”platform\” is. E.g., Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir.1981) (court declined to follow General Electric, stating that \”platform\”includes \”those elevated surfaces where employees work and which in the reasonablejudgment of the Secretary need protection from injury by guardrails\”).We need not resolve whether this balcony served as a\”platform\” as defined 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 of meaningsfor \”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] of a 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 threshing floor.(Emphasis added). The balcony here was directly connected tothe fourth level, was approximately level with it, and was designed to be stepped ontodirectly from the interior of the fourth level. It was a \”floor\” as commonlydefined, 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 notplatform as alleged, but court amended pleadings sua sponte to conform to evidence that itwas unguarded runway in violation of different standard).Thus, the cited section applied to the balcony. Further, sincethere were no guardrails, Pace did not comply with the terms of the section. There is nodispute that employees were exposed to the fall hazards covered by the section (they stoodas close as two feet from the edge, with no fall protection). In addition, the Secretaryshowed the requisite knowledge on the part of Pace. The employees were in plain sight whenthe inspector spotted them upon his arrival. Tile employees had been assigned to work onthe area between the main floor and the balcony, and the evidence did not indicate thatthey were told not to work from the balcony. Again, the problem of failure to enforce fallprotection requirements was a longstanding problem. Thus, with the exercise of reasonablediligence, Pace could have known of the violative conditions. Pace’s defense ofunpreventable employee misconduct fails for the same reason it was rejected under Items1(a) and (b). Item 2 is affirmed.Classification of violations; penaltiesThe violations were clearly serious, as alleged, because30-foot fall hazards were involved. See 29 U.S.C. ? 666(k). As to appropriate penalties,the Secretary proposed a $630 penalty for Items 1(a) and 1(b) combined, and the judgeassessed that amount.We affirm that assessment.The undisputed testimony of theinspector was that Pace had more than 100 employees. Pace’s substantial safety programshowed good faith, although its enforcement of its work rules on this worksite fell wellshort of meeting its obligation to comply with the applicable OSHA standards. Pace had nohistory of violations in the area, but the gravity of the violations was severe, andnumerous employees were exposed on the day of Stone’s accident alone. As to Item 2, theSecretary proposed a $450 penalty. We affirm that amount, for the same reasons givenabove. See 29 U.S.C. ? 666(j).Accordingly, Items 1(a), 1(b), and 2 of the citation areaffirmed as serious violations, and penalties totaling $1,080.00 are assessed.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerApril 12, 1991 SECRETARY OF LABOR, Complainant , v. PACE CONSTRUCTION CORPORATION, Respondent.OSHRC Docket No. 86-0758APPEARANCES: Laurie E. Rucoba, Esquire, Office of theSolicitor, 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, PaceConstruction Corporation, was the general contractor at the Atlantic Plaza Project, anoffice and retail complex in Delray Beach, Florida. Respondent’s employees were engaged inperforming certain concrete forming work and carpentry in connection with this project,which included the construction 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 anoutrigger scaffold and was seriously injured. This accident was duly reported to theOccupational Safety and Health Administration, and an inspection precipitated the issuanceof a serious citation charging respondent with violations of 29 U.S.C. ? 651, et seq.,and the regulations issued thereunder. The citation was contested by respondent, and thematter was heard in Fort Lauderdale, Florida, on September 23, 1986.At issue in this case is whether respondent violated thefollowing regulations as alleged in the Secretary’s citation and complaint:1a 29 CFR 1926.28(a): Appropriate personal protective equipment was not worn by employees inall operations where there was exposure to hazardous conditions:(a) On or about April 14, 1986, employee working from 30 feethigh outrigger platform at the southwest 4th level, was not wearing safety belt attachedto an independent safety line and standard railings were not installed on platform.1b29 CFR 1926.451(a)(4)(amended to include 1926.451(g)(4) and (g)(5)):[[1\/]] Standardguardrails and toeboards were not installed on all open sides and ends of platforms morethan 10 feet above the ground or floor:(a) On or about April 14, 1986, employees, working on outrigger scaffolds which were notequipped with standard railings, were exposed to fall hazard of 30 feet while working oneast end south side of 4th level.2 29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or more above adjacent flooror ground level, were not guarded by a standard railing or the equivalent on all opensides:(a) On or about April 15, 1986, employees working fromunguarded platform at southwest area were exposed to fall hazard of 30 feet, guardrails orsafety belts were not in use.Items 1a and 1b of the citation relate to circumstancesexisting on the day of the accident (April 14) with respect to the actions of John Stoneand other carpenters working from outrigger scaffolds. Item 2 relates to an incidentobserved by Compliance Officer Joseph DeMartino on the day following the accident (April15) involving certain employees allegedly working on an unguarded platform without fallprotection. These two occurrences will be separately discussed.Serious Citation No. 1 Items 1a and 1bThe circumstances in existence at the time of the accident arenot in dispute. On the morning of April 14, Stone was using an outrigger scaffold on thefourth floor of the building in connection with the placement of boards or\”stripping\” along the bottom of tresses \”so the joints wouldn’t curl\”(Tr. 17, 39). The job required a minimum of work and was not expected to take more than afew minutes to complete (Tr. 40). Stone and two other employees placed some planks on thescaffold in preparation for the work but did not secure the planks nor did they erectguardrails or toeboards (Tr. 51). Stone went on the scaffold without a safety belt,stepped on a loose plank, and fell to the ground below sustaining serious injury.[[2\/]]Photographs taken by the compliance officer following the accident depict the scaffoldingin question and clearly show the absence of guardrails and toeboards (Exs. C-2, C-3). TheSecretary’s evidence fully supports the basic elements necessary to establish a changeunder the cited standards.Respondent, at the hearing and in its brief, does not call intoquestion the facts just outlined but seeks to prevail on the basis that Stone’s actionswere an isolated incident of employee misconduct. To establish this defense, an employermust show that the action of its employee was a departure from a work rule that wasuniformly and effectively communicated and enforced. Frank Swidzinski Co., 78 OSAHRC28\/B5, 9 BNA OSHC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627, 1981); Merritt Electric Co.,1981 OSAHRC 75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No. 77-3773, 1981); WanderIron Works, Inc., 1980 OSAHRC 40\/A2, 8 BNA OSHC 1354, 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 an employee was\”exposed to a fall of four (4) feet or more\” (Ex. R-11, Rule 14), and theexistence of this rule is conceded by the Secretary (Secretary’s Brief, page 8).Respondent conducted regular safety meetings at this project, as documented in ExhibitsR-3 through R-8, although this documentation does not indicate that the wearing of safetybelts was specifically discussed. It further appears respondent had safety belts availablefor use at the project. The crucial question for resolution is whether respondenteffectively communicated and enforced it safety belt work rule, and on this point theevidence is conflicting.The Secretary called two witnesses, Richard Barkalow,respondent’s carpenter foreman, and John Fraser, a journeyman carpenter to support hisposition. The testimony of these witnesses tends to show that the wearing of safety beltswas left to the discretion of individual employees and was not rigidly enforced. Barkalow,a member of management, 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 tothem\” Tr. 21-22). Fraser, who worked with Stone, testified \”there wasn’t toomany people wearing\” safety belts before the accident (Tr. 52) and that employeeswere not reprimanded for failure to wear the belts (Tr. 52-53).Respondent’s witnesses generally supported a position thatemployees were told to wear belts and were verbally reprimanded when infractions wereobserved by supervisory personnel. James Muziak, respondent’s job superintendent,testified that he regularly instructed and repeatedly reminded employees to use safetybelts and tie off whenever they were exposed to fall hazards (Tr. 215). His testimony wassupported by James L. Rittnour (Tr. 160, 165) and Jose J. Motez (Tr. 195-201). However,Willie Thomas, respondent’s lead laborer, testified he did not always wear a belt (Tr.188) and that \”people take a chance\” if they \”got nerve\” (Tr. 186).To resolve this conflicting testimony, the undersigned hasrelied in large measure upon his observations of the witnesses during the course of theirtestimony, including their demeanor and candor when responding to critical questions. Inthis light the Secretary’s witnesses were more credible than those offered by respondent,and it is concluded the decision to wear safety belts was left largely to employeediscretion.In attempting to resolve the effectiveness of respondent’ssafety policies, the company’s \”Disciplinary Action Program,\” introduced asRespondent’s Exhibit 1, has also been considered. This program sets up procedures toassure that respondent’s safety policies are carried out and provides for layoffs andtermination when appropriate. The record reflects only two written reprimands were issuedpursuant to this program 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), an employee wasreprimanded for failure to tie off (Ex. R-10). It appears in the record that Muziak didnot implement this program until March of 1986 due to the fact that company forms for usein the program were not provided until then (Tr. 225-226). Prior to the accident,respondent’s program consisted primarily of verbal reprimands administered haphazardly andwithout effective results.Respondent’s claim that it lacked knowledge of its employees’failure to wear safety belts has also been considered. It is abundantly clear in thisrecord that respondent’s supervisors were well aware of the necessity for wearing belts toprotect against fall hazards at this project. Indeed, James Muziak, the jobsuperintendent, admitted he issued verbal reprimands regarding belts to everyone on thejob at least once (Tr. 228). The fact that these oral reprimands were required on such awide-ranging scale shows respondent’s awareness of the problem and is a good indicationthat the seat belt rule was not effectively enforced or taken seriously by employees. SeeA. C. Dellovade, 13 BNA OSHC 1027, (No. 83-1189, 1984), issued on January 12, 1987.In summary, the record confirms that respondent’s employeesroutinely violated the company’s seat belt rule prior to the accident and that the eventsoccurring on April 14, which resulted in serious injury to employee Stone, did notconstitute an isolated incident of employee misconduct.Serious Citation No. 1 Item 2This citation charges respondent with a violation of 29 C.F.R.?1926.500(d)(1) [[3\/]] for failure to provide guardrails around a balcony on thesouthwest side of the building or, in the alternative, that employees working on thisbalcony were not wearing safety belts to protect against falls.The charge results from an observation made by the complianceofficer on the second day of his inspection (April 15). As he approached the work site,the compliance officer observed two employees working without fall protection on anunguarded platform at the fourth floor level of the building under construction. Heproceeded to the job trailer and advised superintendent Muziak of this situation (Tr.72-73), and Muziak contacted Barkalow by radio to inquire about the circumstances.According to the compliance officer, Barkalow reported to Muziak that the involvedemployees were employed by Pace and were performing grinding work on the balcony withoutwearing safety belts (Tr. 73-74). This incident was confirmed in the testimony of Muziak(Tr. 219-221) and also 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 in question was not a\”platform\” as contemplated by the standard and also that respondent lackedactual or constructive knowledge that the employees performing this work were not wearingsafety belts.There is merit to respondent’s first argument. The term\”platform\” as used 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 or ground, such as abalcony or platform for the operation of machinery or equipment.It is clear that the balcony in question was never intended to be a work platform whichwould require the installation of standard guardrails. The grinding work was done at theinterior edge of the building and was performed either from within the building or at alocation on the balcony well back from the open edge (Tr. 184-185, 219-220). This work wasa one-time operation and required less than an hour to complete (Tr. 192-193).Commission decisions indicate that applicability of thestandard depends on the nature of the structure, the frequency and regularity of use byemployees, and whether designed and intended to function as a working surface. ClementFood Company, 11 BNA OSHC 2120, 2126 (No. 80-607, 1984); Globe Industries, Inc., 82 OSAHRC24\/D4, 10 BNA OSHC 1596, 1982 CCH OSHD ? 26,048 (No. 77-4313, 1982). In Rexco Industries,Inc., 80 OSAHRC, 32\/A2, 8 BNA OSHC 1227, 1980 CCH OSHD ? 24,376 (No. 15350, 1980??), theCommission vacated a citation under ? 1926.500 (d)(1) based on the lack of evidence thatany employees were assigned to work on the cited fourth floor surface or that the employerknew or should have known that employees would go onto the surface to perform the work.Similarly, the evidence in the present case shows that the balcony in question was notused or intended to be used as a platform from which to perform work. The employees weredoing grinding work to the balcony itself and were not expected to go onto the balcony toperform the work. Under these circumstances the requirement to install standard guardrailsis inappropriate, and this citation will be vacated insofar as it requires theinstallation of guardrails and toeboards.In the absence of guardrails, however, employees should havebeen protected by safety belts, and respondent’s argument that it lacked constructive oractual knowledge that employees were performing this work without wearing safety belts isrejected for the reasons previously recited in regard to Citation No. 1. The fact thatthis incident occurred the day following the accident serves only to bolster a conclusionthat respondent’s safety belt rule was routinely disregarded by respondent’s employees andsupervisors. Since penalties have already been assessed for this infraction, no furtherpenalties will be levied. FINDINGS OF FACT1. The respondent, Pace Construction Corporation, is a generalcontractor with its home office in Atlanta, Georgia. During the period in question,respondent was engaged in the construction of an office and retail complex in DelrayBeach, Florida.2. Respondent is a corporation which has employees who handleor otherwise work on goods received in or produced for commerce.3. On the morning of April 14, 1986, John Stone, an employee of respondent, was using anoutrigger scaffold on the fourth floor level of a building under construction. Thescaffold in question had been hastily rigged. The planks in use on the scaffold were notsecured to the beams nor had guardrails and toeboards been installed around the perimeter.While working on the scaffold without a safety belt, Stone stepped on a loose plank andfell to the ground below sustaining serious injury.4. Respondent had a work rule requiring the use of safety beltswhen an employee was exposed to a fall hazard. This work rule was not effectivelycommunicated to employees nor was it enforced by respondent’s supervisory personnel. Thewearing of safety belts was left largely to the discretion of individual employees, andthe safety belt rule was frequently violated by respondent’s employees.5. On April 15, 1986, employees of respondent were doing somegrinding work on a balcony at the fourth floor level of a building under construction. Thegrinding work was done at the interior edge of the building and was performed either fromwithin the building or at a location on the balcony well back from the open edge. Thebalcony was not used as a work platform.CONCLUSIONS OF LAW1. Respondent is an employer engaged in a business affectingcommerce and is subject to the jurisdiction of the Occupational Safety and Health ReviewCommission.2. Respondent has violated the provisions of 29 C.F.R. ? 1926.28 (a) by permittingemployees to work without safety belts to protect them from hazardous 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 was unsecured.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 apenalty of $630 assessed.2. Serious Citation No. 1, item 2, is vacated.EDWIN G. SALYERS JudgeDate: March 23, 1987FOOTNOTES: [[1\/]] That section provides:?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 hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.[[2\/]] Those sections provide:?1926.451 Scaffolding.(g) Outrigger scaffolds.(4) Planking shall be laid tight and shall extend to within 3 inches of the building wall.Planking shall be secured to the beams.(5) Guardrails approximately 42 inches high, with a midrail … and toeboards, shall beinstalled at all open sides and ends on all scaffolds more than 10 feet above the groundor floor. …[[3\/]] ? 1926.500 Guardrails, handrails, and covers.(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent,…. on all open sides, except where there is entranceto a ramp, stairway, or fixed ladder. The railing shall be provided with a. standardtoeboard wherever, beneath the open sides, persons can pass, . . . .[[4\/]] The current language of the standard (n.1 supra)indicates that the Secretary need only prove one of those two elements. (It uses thedisjunctive word \”or\” between them.) The basis for the Commission’s holding inL. E. Myers that both elements must be proved was that: (1) the standard as originallydrafted required compliance only where both elements existed, and (2) the current version,using the disjunctive \”or,\” was an invalid change, because it was made withoutpublic notice and 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 tied off with safety beltand lanyard where no other type of fall protection is provided.The Secretary does not dispute that this rule would be adequate, if followed.[[6\/]] The judge stated:To resolve this conflicting testimony, the undersigned has relied in large measure uponhis observations of the witnesses during the course of their testimony, including theirdemeanor and candor when responding to critical questions. In this light the Secretary’switnesses were more credible 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 contradictorytestimony when he stated that his own failure to wear a safety belt on the unguardedbalcony at issue in Item 2 was an \”isolated incident.\” However, the employee wasreferring only to incidents on balconies, not scaffolds. It is undisputed that the balconyat issue in Item 2 was the first balcony worked on by employees. The employee alsotestified that immediately after Stone’s fall, Pace enforced the safety belt rule moreintensively.[[8\/]] Pace argues that Muziak did not so testify, but itsquotation from his testimony is selective and transposes certain testimony. The transcriptsupports the judge’s reading of Muziak’s testimony, and we adopt that reading. Paceasserts that at one point in his decision, the judge made a finding that contradicts thatreading of Muziak’s testimony. However, the judge found only that no written reprimandshad been issued for safety belt violations. That statement does not contradict his otherfindings.[[9\/]]Pace has not raised the issue of whether the outriggerscaffold guarding requirements are more specifically applicable to the cited conditionsthan ?1926.28(a). Thus, we need not resolve that issue.[[10\/]] There was testimony that toeboards were never usedbefore Stone’s accident. Pace argues that the failure to use toeboards was de minimisbecause no employees worked below the scaffolds, so there existed no hazards as to themfrom falling materials. We need not determine whether Pace is correct on this point, inlight of the evidence establishing other deficiencies in the guarding of the scaffold thatclearly presented serious hazards to employees.[[11\/]] Pace relies on foreman Barkalow’s testimony that henever saw scaffolding in use that was not guarded or properly planked. However, Barkalowwas not directly responsible for scaffold erection, and he did not testify that he checkedon compliance with scaffold guarding requirements. The evidence showed that he did notcheck on compliance with Pace’s safety belt rule. We therefore conclude that the testimonyquoted above, by the lead carpenter responsible for scaffold erection, was based on closerobservation, so far as this record shows.[[12\/]] Pace argues that Fraser’s testimony is not crediblebecause he did not perform scaffolding work and did not remember whether safety belt’swere carried out to the jobsite for employee use each day before the accident. We do notthink those factors negate the value of his testimony. The judge credited it over that ofPace’s witnesses on the issue of safety belts. We find no reason not to credit Fraser’stestimony regarding the condition of the southeast scaffold on the morning of theaccident.[[1\/]] The original citation alleged only a violation of 29C.F.R. ?1926.451(a)(4), which requires guardrails and toeboards on scaffold platforms. Inhis complaint, the Secretary amended the citation by alleging additional violations of 29C.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 guardrailsand toeboards. The evidence adduced at the hearing clearly reflects the \”outriggerscaffold\” regulations are more appropriate. While respondent initially opposed theamendment in its answer, no further objections were raised at the hearing or inrespondent’s brief nor is there any indication that the proposed amendment surprised orhindered respondent in its defense. Accordingly, the Secretary’s amendment is allowed. SeeH. B. Zachary Co. v. OSHRC, 638 F.2d 812 at 816.[[2\/]] As a result of the accident, Stone suffered from headtrauma and a memory deficit which prevented him from appearing as a witness in the case(See Ex. C-1).[[3\/]] Section 1926.500(d)(1) provides:(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground levelshall be guarded by a standard railing, or the equivalent, as specified in paragraph(f)(1) of this section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is moving machinery, or thereis equipment with which falling materials could create a hazard.”