“SECRETARY OF LABORComplainant.v.PASCHEN CONTRACTORS INC.,Respondent.OSHRC DOCKET NO. 85-0384_ORDER_The Commission approves the parties’ stipulation and settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary Dated: December 19, 1986————————————————————————WILLIAM R. BROCK, SECRETARY OF LABOR,Complainant,v.PASCHEN CONTRACTORS, INC.,Respondent.OSHRC DOCKET No. 85-384_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement ofthe instant matter which to presently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590;29 U.S.C. 5651 et seq.) (hereinafter \”the Act\”).(b) Respondent, Paschen Contractors Inc., is a corporation with itsprincipal place of business located in St. Petersburg, Florida.It is engaged in the business of construction work and during the courseof its business its employees perform various tasks in the nature ofconstruction and related work. During the course of its business,respondent uses materials and equipment which it receives from placeslocated outside St. Petersburg, Florida. Respondent, as a result of theaforesaid activities, is an employer engaged in a business affectingcommerce as defined by section 3(3) and 3(5) of the Act, and hasemployees as defined by section 3(6) of the Act, and is subject to therequirements of the Act.(c) As a result of an inspection conducted on January 2, 1985, atrespondent’s work place at highway 19, Skyway Bridge, St. Petersburg,Florida, a citation for one willful violation and a citation for twoserious violations along with a Notification of Proposed Penaltyassessing a total penalty of $6,900.00 was issued to respondent on March22, 1985 pursuant to section 9(a) of the Act. The first citation citedrespondent with violation of OSHA regulation 29 CFR 1926.802(c), whichprovides that \”[c]offerdam walkways, bridges, or ramps…shall beprovided with guardrails.\” The citation alleged that on December 28,1984 employees \”stepping to and from, and walking along the topperiphery\” of cofferdam 15-SN at the Skyway construction site wereexposed to falls into the cofferdam.The other citation alleged two violations, both serious. The citationcited respondent with a serious violation of 29 CFR 1926.605(b)(2),which provides that \”[u]nless employees can step safely to or fromthe…barge,…either a ramp, meeting the requirements of paragraph(b)(1) of section, or a safe walkway, shall be provided.\” Paragraph(b)(1) provides that \”[r]amps for access of vehicles to or betweenbarges shall be of adequate strength, provided with sideboards, wellmaintained, and properly secured,\” The citation alleged that the\”gangplank between barge and work platforms\” at cofferdam 15-SN \”was notwell maintained nor provided with guardrails, in that slats on thesurface were loose and broken and both sides were open, thus exposingemployees to possible falls.\”The citation further cited respondent with a serious violation of 29 CFR1926.605(d)(3), which provides that \”[e]mployees walking or working onthe unguarded decks of barges shall be protected with U.S. CoastGuard-approved work vests or buoyant vests.\” The citation alleged that\”[e]mployees walking\/working on the unguarded deck\” of the working bargecalled \”digging rig\” \”were not wearing life jackets, thus being exposedto possible drowning.\”(d) Respondent submitted a Notice of Contest informing complainant ofits intention to contest the alleged violations and the ProposedPenalty. Thereafter, the parties duly filed a complaint and an answer.(e) On July 18, 1985, Commission Administrative Law Judge Edwin G.Salyers held a hearing on respondent’s notice of contest. On October 16,1985, Judge Salyers issued his Decision and Order in which he affirm thewillful item alleging violation of 29 CFR 1926.802(c) and affirmed theserious items alleging violations of 29 CFR 1926.605(b)(2) and 29 CFR1926.605(d)(3). The Judge also assessed a penalty of $6,900.00.Thereafter, respondent filed a timely Petition for Review to theCommission and on December 12, 1985, Commissioner Rader granted reviewon the following issues:1) Whether the administrative law judge erred in finding the violationof 29 CFR 1926.802(c) willful in nature as alleged,2) Whether the judge erred in finding respondent in violation of 29 CFR1926.605(b)(2) and 1926.605(d)(3).IIINow, the Secretary of Labor and Paschan Contractors, Inc., in order toconclude this matter without the necessity of further litigation orreview, stipulate and agree as follows:IVRespondent hereby agrees to withdraw its Petition for Review to theaffirmance of the Citation for violations of 29 CFR 1926.802(c),1926.605(b)(2) and 1926.605(d)(3) and submits that the violations havebeen abated and shall remain abated.VThe Secretary hereby agrees to reduce the classification of theviolation of 29 CFR 1926.802(c) from willful to serious and to reducethe penalty to $1,000.00; the Secretary further agrees to reduce theclassification of the violation of 29 CFR 1926.605(d)(3) from serious toother-than-serious and to reduce the penalty to $-0-.VIBy entering into this stipulated settlement of these proceedings and theundertaking and performance of any duty required by this stipulatedsettlement or the taking of any steps pursuant thereto, respondent doesnot admit that it has violated the Act or any standards or regulationsissued thereunder nor shall the act of entering into this stipulatedsettlement or such performance or the taking of such steps constituteany evidence against or admission by respondent or form the basis of anyassertion of collateral estoppel, res judicata or other preclusionagainst respondent except in proceedings brought under the Act by theSecretary.VIIRespondent and Complainant agree that each party shall bear its own costs.VIIIRespondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rule 7.WHEREFORE, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.ANTONY F. GILAttorney for the Secretary of LaborGEORGE BARFORDCarlton, Fields, Ward,Emmanuel, Smith & Cutler, P.A.Dated this 19th day of November, 1986.————————————————————————SECRETARY OF LABOR,Complainant,v.PASCHEN CONTRACTORS, INC.,Respondent.OSHRC Docket No. 85-384APPEARANCES: Curtis L. Gaye, Esquire, Office of the Solicitor, U. S.Department of Labor, Atlanta, Georgia, on behalf of complainantGeorge Barford, Esquire, Tampa, Florida, on behalf of respondent_DECISION AND ORDER_SALYERS, Judge: The respondent, Paschen Contractors, Inc., is engaged inthe construction of center spans for the new Sunshine Skyway Bridge overTampa Bay. On December 28, 1984, one of respondent’s employees fell fromthe rim of a cofferdam while working at the project and was seriouslyinjured. An ensuing inspection conducted by agents of the Secretary ofLabor resulted in the issuance of citations charging respondent withwillful and serious violations of the Occupational Safety and Health Act(29 U.S.C. ? 651, et seq.). The charges were timely contested byrespondent and a hearing was conducted in St. Petersburg, Florida, onJuly 18, 1985. Both parties have filed briefs, and the case is now readyfor decision.The Secretary charges respondent with a willful violation of thecofferdam standard found at 29 C.F.R. ? 1926.802(c)[[1\/]] for itsfailure to provide guardrails around the rims of cofferdams designatedas 15 S-N. During the month of December 1984, certain employees ofrespondent were engaged in the construction of support piers 15 Southand North (hereafter 15 S-N) for the Skyway Bridge. These piers were tostand in approximately 25 feet of water, and their construction requiredthe use of cofferdams which are hollow steel cylinders attached toconcrete footings on the bay floor and pumped dry to provide a suitableworkplace. The cofferdams in general use by respondent wereapproximately 20 feet high and 12 to 15 feet in diameter. Due to thedepth of the water, the cofferdams used at the 15 S-N location requiredfive-foot extensions which were added on December 13, 1984, at the timethese cofferdams were installed. Although respondent usually riggedguardrails around the rim of each cofferdam, it did not do so withrespect to cofferdams 15 S-N. Respondent’s employees intermittentlyworked on, around, and inside these cofferdams during the two-weekperiod from the time the cofferdams were installed until the date of theaccident on December 28, 1984. During this period employees regularlyused the narrow rim at the top of the cofferdams to gain access to andfrom work sites exposing these employees to falls of 25 feet.Respondent admits the basic elements of the violation. At the hearingand in its brief, respondent conceded the cited standard requiredguardrail protection around the rims of the cofferdams, that thisrequirement was known to respondent’s supervisory personnel, and thatthis protection was not provided at the cofferdams in question(Respondent’s Brief, p.3; Tr. 25-26). Respondent does not specificallyconcede its supervisors were aware of employees’ exposure to this hazardand contends this violation should not be characterized as \”willful\”.The term \”willful\” is not defined in the Act but has been considered andinterpreted by the Commission to mean \”an intentional disregard of, orplain indifference to, the Act’s requirement.\” Kus-Tum Builders, Inc.,81 OSAHRC 97\/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ? 25,738, (76-2644,1981), at p. 32, 105. An omission or failure to act is willfully done ifdone voluntarily and intentionally. Kent Nowlin Construction v. OSHRC,593 F.2d 368, 372 (10th Cir. 1978). No showing of \”bad purpose\” isrequired. Georgia Electric Co. v. OSHRC, 595 F.2d 309 (5th Cir.1979).At trial the Secretary offered the testimony of Brian G. Dutilly, aninspector employed by Skyside, a company charged with responsibility bythe state of Florida to oversee the bridge construction to insurequality control and adherence to Department of Transportationrequirements (Tr. 34). Mr. Dutilly made periodic inspections of thisparticular work site and verified the fact that guardrails were not inplace on cofferdams 15 S-N during the period in question (Tr. 37). Itwas his impression he had called this matter to the attention ofrespondent’s supervisory personnel at some point (Tr. 39). However, histestimony lacked specificity and was too nebulous to support aconclusion that respondent’s supervisors had actual knowledge of thesituation. The Secretary also produced as a witness David W.Parker[[2\/]] who had worked for respondent since May 1984 and was on thejobsite in question prior to and on the day of the accident. Thiswitness not only verified the two foremen on the jobsite (Tim Verdon andBarry Washburn) observed employees walking the rim of the cofferdamwithout guardrail protection (Tr. 49) but further related an incidentwhich removes any doubt concerning respondent’s knowledge of theviolative condition. According to Parker’s testimony on or aboutDecember 24, 1984,[[3\/]] he overheard a radio conversation between thejob foreman (Tim Verdon) and the project superintendent (Dan Solidi)wherein the foreman requested a welder be sent to the jobsite for thepurpose of installing guardrails on the cofferdams. This request refusedby the superintendent (Tr. 50-51), and no action was taken by respondentto install guardrails until after the accident occurred.At the hearing respondent offered no evidence to contradict the factsjust outlined. Instead, respondent relied upon the testimony of itssafety director, Mr. Martin R. Kay, to establish a defense based on Eve,Inc., 78 OSAHRC 85\/F14, 6 BNA OSHC 2190, 1978 CCH OSHD ? 23,134 (No. 77-3292, 1978).[[4\/]] In Eve, supra, the employer was cited for willfulviolation of the trenching standard. The evidence showed that theemployer’s job superintendent, together with five other employees, wereworking in a trench which was not shored or otherwise supported asrequired by the standard. The employer contended the superintendent’sknowledge should not be imputed to the employer since the superintendentwas highly experienced and since the employer had a written safetyprogram forbidding employees to work in trenches that were not shored orsupported. The employer also showed the responsible superintendent wasdisciplined for his failure to follow this work rule. The AdministrativeLaw Judge concluded the employer had demonstrated a \”safetyconsciousness\” which merited a reduction of the charges from \”willful\”to \”serious\”.Respondent argues that Barry Washburn, the site foreman, on the day ofthe accident, was an experienced foreman well trained in safety throughexposure to respondent’s extensive safety training program (Tr. 100-101)and was aware of the company’s standard practice requiring theinstallation of guardrails on cofferdams (Tr. 20-21). Respondentcontends it was Washburn’s responsibility to insure the guardrails wereup before ordering workmen onto the cofferdams and that his omission inthis regard on the day of the accident should not be imputed torespondent since Washburn acted in defiance of respondent’s standardpractice. In essence, this raises the defense of \”employee misconduct,\”a defense which respondent raised in its answer to the Secretary’scomplaint but then abandoned at the hearing (Tr. 124-125).[[5\/]]The Secretary argues with persuasion that respondent’s actions orinaction in this case require a willful characterization. The Secretarystresses that employees were suffered and permitted to work on, in, andaround the unguarded cofferdams over a period of two weeks, during whichperiod they were in plain view of the site foremen who were fully awareof employee exposure to this hazard. When the need for guardrails wasmade known to respondent’s project superintendent at a higher corporatelevel, the request was summarily denied and the practice continuedunabated until a serious accident resulted. The Secretary argues thatthis conduct demonstrates \”intentional disregard of, or plainindifference to\” the Act’s requirements and cites Heimerman Masonry,Inc., 83 OSAHRC 45\/D14, 11 BNA OSHC 1717, 1983-84 CCH OSHD ? 26,708(No. 82-1090, 1983) and Havens Steel Company v. OSHRC, 738 F.2d 397(10th Cir. 1984).[[6\/]] The characterization of this charge as willfulis fully sustained by the record.Respondent is further charged with a serious violation of 29 C.F.R. ?1926.605(b)(2)[[7\/]] for failure to provide a safe ramp or walkway (alsoreferred to in the record as a gangplank or pickboard) between the bargeand work platform at cofferdams 15 S-N as depicted in Exhibit C-1 andC-3. The Secretary interprets this standard to require guardrails onramps or gangplanks (Tr. 69-70). At the hearing respondent’s safetydirector, as well as its attorney, agreed with this position (Tr. 117).However, respondent argues in its brief that the standard \”requireseither a ramp provided with ‘side boards’ or a ‘safe walkway’\”(Respondent’s Brief, p. 9). Respondent maintains the ramp in questionprovided a \”safe walkway\” even though it lacked guardrails and containedsome loose planking. It relies upon the testimony of its safety director that the ramp was safe in his opinion (Tr. 115-116). TheSecretary addressed this issue through the testimony of ComplianceOfficer Closuit who disclosed that certain slats on the ramp were brokenor loose and that be considered the ramp to be \”squirrelly\” (Tr. 69-70).The absence of sideboards or guardrails on the ramp in question, whencoupled with the undisputed fact that the ramp had loose planking, issufficient to conclude it did not afford a safe walkway and that thestandard has been breached as maintained by the Secretary.The Secretary has also cited respondent for a serious violation of 29C.F.R. ? 1926.605(d)(3),[[8\/]] the life vest standard. It is clear inthe record that respondent furnished each employee with an approved lifevest and required employees to wear these vests while being transportedto and from the work site (Tr. 58, 119). It is equally clear in thetestimony of David Parker, the only witness called who was familiar withwork practices during the period preceding the accident, that employeesdid not wear life vests while working or walking on the unguarded bargesuntil after the accident occurred (Tr. 57-58). Accordingly, this itemwill be affirmed.The Secretary proposes penalties in this case in the total amount of$6,900. In reaching the proposed amount, the compliance officer appliedthe usual formula established to provide uniformity in the assessment ofpenalties (Tr. 79-88). Under the circumstances of this case, theproposed penalties are considered reasonable._FINDINGS OF FACT_1. The Respondent, Paschen Contractors, Inc., is a constructioncontractor engaged to install center spans for the new Sunshine SkywayBridge over Tampa Bay. Respondent has employees who handle or otherwisework on goods that have been moved in commerce.2. During the period from December 13 to 28, 1984, respondent allowedemployees to work on, around, and inside the cofferdams at Pier 15 S-Nwithout providing guardrails around the rims. This practice subjectedemployees to potential falls of 25 feet and the possibility of seriousor fatal injuries. During the aforesaid period respondent and itssupervisory employees had knowledge of employees’ exposure to thishazard and were aware of the requirements of 29 C.F.R. ? 1926.802(c) butdid not take effective steps to insure the protection of theseemployees. The respondent’s failure to act constituted an intentionaldisregard of, or plain indifference to, the Act’s requirements.3. The ramp in use by employees of respondent between the barge and workplatform at cofferdams 15 S-N was not provided with guardrails. Thisramp also contained loose planking. Under these circumstances the rampdid not provide a safe walkway and subjected employees to the risk ofdrowning.4. During the period prior to December 28, 1984, the respondent did notinsure that employees working or walking on unguarded barges wore lifevests. Failure to require the wearing of life vests exposed employees tothe risk of drowning._CONCLUSIONS OF LAW_1. The respondent is an employer engaged in an industry affectingcommerce and is subject to the jurisdiction of the Occupational Safetyand Health Review Commission.2. During the period December 13 through 28, 1984, respondent willfullyviolated the provisions of 29 C.F.R. ? 1926.802(c) by its failure toprovide guardrails around the rims of cofferdams at Pier 15 S- N.3. During the aforesaid period respondent seriously violated theprovision of 29 C.F.R. ? 1926.605(b)(2) by its failure to provide a safewalkway from the barge to the work platform at Pier 15 S-N.4. During the aforesaid period respondent seriously violated 29 C.F.R. ?1926.605(d)(3) by permitting employees to work or walk on the unguardeddecks of barges without wearing approved life vests._ORDER_1. Serious Citation No. 1, item 1, is affirmed with a penalty of $400assessed.2. Serious Citation No. 1, item 2, is affirmed with a penalty of $500assessed.3. Willful Citation No. 2, item 1, is affirmed with a penalty of $6,000assessed.EDWIN G. SALYERSJudgeDate: November 5, 1985FOOTNOTES:[[1\/]]The standard at 29 C.F.R. ? 1926.802(c) provides:(c) Cofferdam walkways, bridges, or ramps with at least two means ofrapid exit shall be provided with guardrails a specified in Subpart M ofthis part.[[2\/]]Respondent’s counsel attempted to discredit this former employeeby showing discrepancies in his testimony concerning the date he took aphotograph (Ex. C-2; Tr. 111- 112) and by disclosing that he wasterminated for excessive absences (Tr. 115). However, the demeanor ofthis witness convincing, and his testimony on the crucial issues isconsidered creditable.[[3\/]]Parker testified, \”It was h\\the day before we were supposed to gohome for Christmas vacation\” and was either \”the 23rd or 24th ofDecember\” (Tr. 50). Since Christmas was on Tuesday, it is assumed theday of the conversation was Monday, December 24, 1984. This assumptionis supported by the employee’s time sheet (Ex. R-2).[[4\/]]It should be noted Eve case was not reviewed by the Commissionand, therefore, is without precedential value.[[5\/]]In a posthearing motion, the Secretary moves to strikerespondent’s discussion of this issue. In view of the decision reached,the motion is now moot.[[6\/]]Both Heimerman (an unreviewed ALJ decision) and Havens areanalogous to the case at bar. In each case the employer had failed toinstall guardrails despite the knowledge of the foremen that thisprotection was required by law and company policy. This failure to actwas held to constitute \”plain indifference\” and was sufficient tosupport a willful charge.[[7\/]]The standard at 29 C.F.R. ? 1926.605(b)(2) states:(2) Unless employees can step safely to or from the wharf, float, barge,or river towboat, either a ramp, meeting the requirements ofsubparagraph (1) of this paragraph, or a safe walkway, shall be provided.[[8\/]]The standard at 29 C.F.R. ? 1926.605(d)(3) provides:Employees walking or working on the unguarded decks of barges shall beprotected with U.S. Coast Guard-approved work vests or buoyant vests.”