“Docket No. 85-0384 SECRETARY OF LABOR Complainant. v.PASCHEN CONTRACTORS INC., Respondent.OSHRC DOCKET NO. 85-0384ORDER The Commission approves the parties’ stipulation and settlement agreement.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary \u00a0Dated: December 19, 1986WILLIAM R. BROCK, SECRETARY OF LABOR,Complainant,v.PASCHEN CONTRACTORS, INC., Respondent.OSHRC DOCKET No. 85-384STIPULATION AND SETTLEMENT AGREEMENT IThe parties have reached agreement on a full and complete settlement of the instant matterwhich to presently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter \”theCommission\”) has jurisdiction of this matter pursuant to section 10(c) of theOccupational 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 its principal place ofbusiness located in St. Petersburg, Florida.It is engaged in the business of construction work and during the course of its businessits employees perform\u00a0 various tasks in the nature of construction and related work.During the course of its business, respondent uses materials and equipment which itreceives from places located outside St. Petersburg, Florida. Respondent, as a result ofthe aforesaid activities, is an employer engaged in a business affecting commerce asdefined by section 3(3) and 3(5) of the Act, and has employees as defined by section 3(6)of the Act, and is subject to the requirements of the Act.(c) As a result of an inspection conducted on January 2, 1985, at respondent’s work placeat highway 19, Skyway Bridge, St. Petersburg, Florida, a citation for one willfulviolation and a citation for two serious violations along with a Notification of ProposedPenalty assessing a total penalty of $6,900.00 was issued to respondent on March 22, 1985pursuant to section 9(a) of the Act. The first citation cited respondent with violation ofOSHA regulation 29 CFR 1926.802(c), which provides that \”[c]offerdam walkways,bridges, or ramps…shall be provided with guardrails.\” The citation alleged that onDecember 28, 1984 employees \”stepping to and from, and walking along the topperiphery\” of cofferdam 15-SN at the Skyway construction site were exposed to fallsinto the cofferdam.The other citation alleged two violations, both serious. The citation cited respondentwith a serious violation of 29 CFR 1926.605(b)(2), which provides that \”[u]nlessemployees can step safely to or from the…barge,…either a ramp, meeting therequirements 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 between bargesshall be of adequate strength, provided with sideboards, well maintained, and properlysecured,\” The citation alleged that the \”gangplank between barge and workplatforms\” at cofferdam 15-SN \”was not well maintained nor provided withguardrails, in that slats on the surface were loose and broken and both sides were open,thus exposing employees to possible falls.\”The citation further cited respondent with a serious violation of 29 CFR 1926.605(d)(3),which provides that \”[e]mployees walking or working on the unguarded decks of bargesshall be protected with U.S. Coast Guard-approved work vests or buoyant vests.\” Thecitation alleged that \”[e]mployees walking\/working on the unguarded deck\” of theworking barge called \”digging rig\” \”were not wearing life jackets, thusbeing exposed to possible drowning.\”(d) Respondent submitted a Notice of Contest informing complainant of its intention tocontest the alleged violations and the Proposed Penalty. Thereafter, the parties dulyfiled a complaint and an answer.(e) On July 18, 1985, Commission Administrative Law Judge Edwin G. Salyers held a hearingon respondent’s notice of contest. On October 16, 1985, Judge Salyers issued his Decisionand Order in which he affirm the willful item alleging violation of 29 CFR 1926.802(c) andaffirmed the serious 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, respondentfiled a timely Petition for Review to the Commission and on December 12, 1985,Commissioner Rader granted review on the following issues:1) Whether the administrative law judge erred in finding the violation of 29 CFR1926.802(c) willful in nature as alleged,2) Whether the judge erred in finding respondent in violation of 29 CFR 1926.605(b)(2) and1926.605(d)(3).IIINow, the Secretary of Labor and Paschan Contractors, Inc., in order to conclude thismatter without the necessity of further litigation or review, stipulate and agree asfollows:IVRespondent hereby agrees to withdraw its Petition for Review to the affirmance of theCitation for violations of 29 CFR 1926.802(c), 1926.605(b)(2) and 1926.605(d)(3) andsubmits that the violations have been abated and shall remain abated.VThe Secretary hereby agrees to reduce the classification of the violation of 29 CFR1926.802(c) from willful to serious and to reduce the penalty to $1,000.00; the Secretaryfurther agrees to reduce the classification of the violation of 29 CFR 1926.605(d)(3) fromserious to other-than-serious and to reduce the penalty to $-0-.VIBy entering into this stipulated settlement of these proceedings and the undertaking andperformance of any duty required by this stipulated settlement or the taking of any stepspursuant thereto, respondent does not admit that it has violated the Act or any standardsor regulations issued thereunder nor shall the act of entering into this stipulatedsettlement or such performance or the taking of such steps constitute any evidence againstor admission by respondent or form the basis of any assertion of collateral estoppel, resjudicata or other preclusion against respondent except in proceedings brought under theAct by the Secretary.VIIRespondent and Complainant agree that each party shall bear its own costs.VIIIRespondent agrees to post this Stipulation and Settlement Agreement in accordance withCommission Rule 7.WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approvedby 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 complainant George Barford, Esquire, Tampa, Florida, on behalf of respondentDECISION AND ORDERSALYERS, Judge: The respondent, Paschen Contractors, Inc., is engaged in the constructionof center spans for the new Sunshine Skyway Bridge over Tampa Bay. On December 28, 1984,one of respondent’s employees fell from the rim of a cofferdam while working at theproject and was seriously injured. An ensuing inspection conducted by agents of theSecretary of Labor resulted in the issuance of citations charging respondent with willfuland serious violations of the Occupational Safety and Health Act (29 U.S.C. ? 651, etseq.). The charges were timely contested by respondent and a hearing was conducted in St.Petersburg, Florida, on July 18, 1985. Both parties have filed briefs, and the case is nowready for decision.The Secretary charges respondent with a willful violation of the cofferdam standard foundat 29 C.F.R. ? 1926.802(c)[[1\/]] for its failure to provide guardrails around the rims ofcofferdams designated as 15 S-N. During the month of December 1984, certain employees ofrespondent were engaged in the construction of support piers 15 South and North (hereafter15 S-N) for the Skyway Bridge. These piers were to stand in approximately 25 feet ofwater, and their construction required the use of cofferdams which are hollow steelcylinders attached to concrete footings on the bay floor and pumped dry to provide asuitable workplace. The cofferdams in general use by respondent were approximately 20 feethigh and 12 to 15 feet in diameter. Due to the depth of the water, the cofferdams used atthe 15 S-N location required five-foot extensions which were added on December 13, 1984,at the time these cofferdams were installed. Although respondent usually rigged guardrailsaround the rim of each cofferdam, it did not do so with respect to cofferdams 15 S-N.Respondent’s employees intermittently worked on, around, and inside these cofferdamsduring the two-week period from the time the cofferdams were installed until the date ofthe accident on December 28, 1984. During this period employees regularly used the narrowrim at the top of the cofferdams to gain access to and from work sites exposing theseemployees to falls of 25 feet.Respondent admits the basic elements of the violation. At the hearing and in its brief,respondent conceded the cited standard required guardrail protection around the rims ofthe cofferdams, that this requirement was known to respondent’s supervisory personnel, andthat this protection was not provided at the cofferdams in question (Respondent’s Brief,p.3; Tr. 25-26). Respondent does not specifically concede its supervisors were aware ofemployees’ exposure to this hazard and contends this violation should not be characterizedas \”willful\”.The term \”willful\” is not defined in the Act but has been considered andinterpreted by the Commission to mean \”an intentional disregard of, or plainindifference to, the Act’s requirement.\” Kus-Tum Builders, Inc., 81 OSAHRC 97\/B2, 10BNA OSHC 1128, 1981 CCH OSHD ? 25,738, (76-2644, 1981), at p. 32, 105. An omission orfailure to act is willfully done if done voluntarily and intentionally. Kent NowlinConstruction v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1978). No showing of \”badpurpose\” is required. Georgia Electric Co. v. OSHRC, 595 F.2d 309 (5th Cir.1979).At trial the Secretary offered the testimony of Brian G. Dutilly, an inspector employed bySkyside, a company charged with responsibility by the state of Florida to oversee thebridge construction to insure quality control and adherence to Department ofTransportation requirements (Tr. 34). Mr. Dutilly made periodic inspections of thisparticular work site and verified the fact that guardrails were not in place on cofferdams15 S-N during the period in question (Tr. 37). It was his impression he had called thismatter to the attention of respondent’s supervisory personnel at some point (Tr. 39).However, his testimony lacked specificity and was too nebulous to support a conclusionthat respondent’s supervisors had actual knowledge of the situation. The Secretary alsoproduced as a witness David W. Parker[[2\/]] who had worked for respondent since May 1984and was on the jobsite in question prior to and on the day of the accident. This witnessnot only verified the two foremen on the jobsite (Tim Verdon and Barry Washburn) observedemployees walking the rim of the cofferdam without guardrail protection (Tr. 49) butfurther related an incident which removes any doubt concerning respondent’s knowledge ofthe violative condition. According to Parker’s testimony on or about December 24,1984,[[3\/]] he overheard a radio conversation between the job foreman (Tim Verdon) and theproject superintendent (Dan Solidi) wherein the foreman requested a welder be sent to thejobsite for the purpose of installing guardrails on the cofferdams. This request refusedby the superintendent (Tr. 50-51), and no action was taken by respondent to installguardrails until after the accident occurred.At the hearing respondent offered no evidence to contradict the facts just outlined.Instead, respondent relied upon the testimony of its safety director, Mr. Martin R. Kay,to establish a defense based on Eve, Inc., 78 OSAHRC 85\/F14, 6 BNA OSHC 2190, 1978 CCHOSHD ? 23,134 (No. 77- 3292, 1978).[[4\/]] In Eve, supra, the employer was cited forwillful violation of the trenching standard. The evidence showed that the employer’s jobsuperintendent, together with five other employees, were working in a trench which was notshored or otherwise supported as required by the standard. The employer contended thesuperintendent’s knowledge should not be imputed to the employer since the superintendentwas highly experienced and since the employer had a written safety program forbiddingemployees to work in trenches that were not shored or supported. The employer also showedthe responsible superintendent was disciplined for his failure to follow this work rule.The Administrative Law 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 of the accident, wasan experienced foreman well trained in safety through exposure to respondent’s extensivesafety training program (Tr. 100-101) and was aware of the company’s standard practicerequiring the installation of guardrails on cofferdams (Tr. 20-21). Respondent contends itwas Washburn’s responsibility to insure the guardrails were up before ordering workmenonto the cofferdams and that his omission in this regard on the day of the accident shouldnot be imputed to respondent since Washburn acted in defiance of respondent’s standardpractice. In essence, this raises the defense of \”employee misconduct,\” adefense which respondent raised in its answer to the Secretary’s complaint but thenabandoned at the hearing (Tr. 124-125).[[5\/]]The Secretary argues with persuasion that respondent’s actions or inaction in this caserequire a willful characterization. The Secretary stresses that employees were sufferedand permitted to work on, in, and around the unguarded cofferdams over a period of twoweeks, during which period they were in plain view of the site foremen who were fullyaware of employee exposure to this hazard. When the need for guardrails was made known torespondent’s project superintendent at a higher corporate level, the request was summarilydenied and the practice continued unabated until a serious accident resulted. TheSecretary argues that this conduct demonstrates \”intentional disregard of, or plainindifference to\” the Act’s requirements and cites Heimerman Masonry, Inc., 83 OSAHRC45\/D14, 11 BNA OSHC 1717, 1983-84 CCH\u00a0 OSHD ? 26,708 (No. 82-1090, 1983) and HavensSteel Company v. OSHRC, 738 F.2d 397 (10th Cir. 1984).[[6\/]] The characterization of thischarge as willful is 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 (also referred to inthe record as a gangplank or pickboard) between the barge and work platform at cofferdams15 S-N as depicted in Exhibit C-1 and C-3. The Secretary interprets this standard torequire guardrails on ramps 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 \”requires either a ramp providedwith ‘side boards’ or a ‘safe walkway’\” (Respondent’s Brief, p. 9). Respondentmaintains the ramp in question provided a \”safe walkway\” even though it lackedguardrails and contained some loose planking. It relies upon the testimony of its safety\u00a0 director that the ramp was safe in his opinion (Tr. 115-116). The Secretaryaddressed this issue through the testimony of Compliance Officer Closuit who disclosedthat certain slats on the ramp were broken or loose and that be considered the ramp to be\”squirrelly\” (Tr. 69-70). The absence of sideboards or guardrails on the ramp inquestion, when coupled with the undisputed fact that the ramp had loose planking, issufficient to conclude it did not afford a safe walkway and that the standard has beenbreached as maintained by the Secretary.The Secretary has also cited respondent for a serious violation of 29 C.F.R. ?1926.605(d)(3),[[8\/]] the life vest standard. It is clear in the record that respondentfurnished each employee with an approved life vest and required employees to wear thesevests while being transported to and from the work site (Tr. 58, 119). It is equally clearin the testimony of David Parker, the only witness called who was familiar with workpractices during the period preceding the accident, that employees did not wear life vestswhile working or walking on the unguarded barges until after the accident occurred (Tr.57-58). Accordingly, this item will be affirmed.The Secretary proposes penalties in this case in the total amount of $6,900. In reachingthe proposed amount, the compliance officer applied the usual formula established toprovide uniformity in the assessment of penalties (Tr. 79-88). Under the circumstances ofthis case, the proposed penalties are considered reasonable.FINDINGS OF FACT1. The Respondent, Paschen Contractors, Inc., is a construction contractor engaged toinstall center spans for the new Sunshine Skyway Bridge over Tampa Bay. Respondent hasemployees who handle or otherwise work on goods that have been moved in commerce.2. During the period from December 13 to 28, 1984, respondent allowed employees to workon, around, and inside the cofferdams at Pier 15 S-N without providing guardrails aroundthe rims. This practice subjected employees to potential falls of 25 feet and thepossibility of serious or fatal injuries. During the aforesaid period respondent and itssupervisory employees had knowledge of employees’ exposure to this hazard and were awareof the requirements of 29 C.F.R. ? 1926.802(c) but did not take effective steps to insurethe protection of these employees. The respondent’s failure to act constituted anintentional disregard of, or plain indifference to, the Act’s requirements.3. The ramp in use by employees of respondent between the barge and work platform atcofferdams 15 S-N was not provided with guardrails. This ramp also contained looseplanking. Under these circumstances the ramp did not provide a safe walkway and subjectedemployees to the risk of drowning.4. During the period prior to December 28, 1984, the respondent did not insure thatemployees working or walking on unguarded barges wore life vests. Failure to require thewearing of life vests exposed employees to the risk of drowning.CONCLUSIONS OF LAW1. The respondent is an employer engaged in an industry affecting commerce and is subjectto the jurisdiction of the Occupational Safety and Health Review Commission.2. During the period December 13 through 28, 1984, respondent willfully violated theprovisions of 29 C.F.R. ? 1926.802(c) by its failure to provide guardrails around therims of cofferdams at Pier 15 S- N.3. During the aforesaid period respondent seriously violated the provision of 29 C.F.R. ?1926.605(b)(2) by its failure to provide a safe walkway from the barge to the workplatform 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 unguarded decks of barges without wearingapproved life vests.ORDER1. Serious Citation No. 1, item 1, is affirmed with a penalty of $400 assessed.2. Serious Citation No. 1, item 2, is affirmed with a penalty of $500 assessed.3. Willful Citation No. 2, item 1, is affirmed with a penalty of $6,000 assessed.EDWIN G. SALYERS JudgeDate: 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 of rapid exit shall beprovided with guardrails a specified in Subpart M of this part.[[2\/]]Respondent’s counsel attempted to discredit this former employee by showingdiscrepancies in his testimony concerning the date he took a photograph (Ex. C-2; Tr. 111-112) and by disclosing that he was terminated for excessive absences (Tr. 115). However,the demeanor of this witness convincing, and his testimony on the crucial issues isconsidered creditable.[[3\/]]Parker testified, \”It was h\\the day before we were supposed to go home forChristmas vacation\” and was either \”the 23rd or 24th of December\” (Tr. 50).Since Christmas was on Tuesday, it is assumed the day of the conversation was Monday,December 24, 1984. This assumption is supported by the employee’s time sheet (Ex. R-2).[[4\/]]It should be noted Eve case was not reviewed by the Commission and, therefore, iswithout precedential value.[[5\/]]In a posthearing motion, the Secretary moves to strike respondent’s discussion ofthis issue. In view of the decision reached, the motion is now moot.[[6\/]]Both Heimerman (an unreviewed ALJ decision) and Havens are analogous to the case atbar. In each case the employer had failed to install guardrails despite the knowledge ofthe foremen that this protection was required by law and company policy. This failure toact was held to constitute \”plain indifference\” and was sufficient to support awillful 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 of subparagraph (1) of this paragraph, or a safewalkway, 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 be protected with U.S.Coast Guard-approved work vests or buoyant vests.”