“SECRETARY OF LABOR,Complainant,v.REGINA CONSTRUCTION COMPANY,RESPONDENT.OSHRC Docket No. 87-1309_DECISION_Before: Foulke, Chairman; and WISEMAN, Commissioner.BY THE COMMISSION:The issue in this case is whether former Commission Administrative LawJudge Paul A. Tenney erred in concluding that Regina ConstructionCompany (\”Regina\”) had knowledge that its employee was exposed to arecognized fall hazard, in violation of 29 U.S.C. ? 654(a)(1), section5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”).[[1\/]]I. _Background_Regina is a concrete construction company with its principal office inAlexandria, Virginia. On June 26, 1987, a compliance officer from theOccupational Safety and Health Administration (\”OSHA\”) inspected aconstruction site in Washington, D.C., where Regina was a subcontractor.During the inspection, the compliance officer observed and photographedMark Coleman, an employee of Regina, performing concrete finishing work,or \”rubbing,\” on a wall of a shaft opening while standing next to theedge of an unguarded, open-sided floor, which was 24 feet above theground. Coleman was not using a safety belt or other personal protectiveequipment. He was working beyond a railing, upon which there was a signstating in large letters: \”Danger, Keep Out.\”As a result of the inspection, the Secretary alleged in Citation 1 Item1, as amended in the complaint, that Regina had committed a violation ofsection 5(a)(1) of the Act,[[2\/]] by permitting its employee, who wasworking without any fall protection, to be exposed to the recognizedhazard of falling 24 feet from an unguarded open-sided floor. Thecomplaint asserted that exposure to the hazard could have beeneliminated or materially reduced by requiring the employee to use asafety belt and lifeline. A penalty of $400 was proposed.In his decision, the judge correctly stated that in order to establish aviolation of section 5(a)(1), the Secretary must prove that: (1) acondition or activity in the workplace presented a hazard to anemployee; (2) the hazard was recognized; (3) the hazard was likely tocause death or serious physical harm; and (4) a feasible means existedto eliminate or materially reduce the hazard. _United States SteelCorp.,_ 12 BNA OSHC 1692, 1697-98, 1986-87 CCH OSHD ? 27,517, p. 35,669(No. 79-1998, 1986) Furthermore, the judge correctly noted that theSecretary must additionally show that Regina knew or, with the exerciseof reasonable diligence, could have known of the violative condition._United States Steel Corp._, 12 BNA OSHC at 1699, 1986-87 CCH OSHD at p.35,671 (citing _Getty Oil Co. v. OSHRC_, 530 F.2d 1143, 1145 (5th Cir.1976)). The Secretary must prove each element of her case by apreponderance of the evidence. _All Purpose Crane, Inc._, 13 BNA OSHC1236, 1238, 1986-87 CCH OSHD ? 27,877, p. 36,549 (No. 82-284, 1987);Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578, pp. 31,899-900 (No. 78-6247, 1981), _aff’d in pertinentpart_, 681 F.2d 69 (1st Cir. 1982).In his decision, the judge determined that the Secretary had met herburden of proof by a preponderance of the evidence with regard to eachof those elements. He concluded that Regina had knowledge of theviolative condition through its foreman. The judge found \”unpersuasive\”Regina’s argument that it lacked knowledge of Coleman’s exposure becauseit resulted from an isolated instance of employee misconduct and wascontrary to the foreman’s instructions. He assessed a penalty of $250,based on Regina’s good faith and \”substantial safety program.\”At issue on review is whether the judge erred in finding that Regina hadknowledge of the violative condition and in rejecting Regina’scontention that Coleman’s conduct was unpreventable.[[3\/]]II. _Employer Knowledge_As noted above, to establish a violation of section 5(a)(1), theSecretary must show that the cited employer had knowledge of theviolative condition. _United States Steel Corp._, 12 BNA OSHC at 1699,1986-87 CCH OSHD at p. 35,671 (citing _Getty Oil Co. v. OSHRC_, 530 F.2dat 1145). In establishing this element, the actual or constructiveknowledge of an employer’s foreman can be imputed to the employer. _See__A.P. O’Horo Co._, 14 BNA OSHC 2004, 2007, 1991 CCH OSHD ? 29,223, p.39,128 (No. 85-369, 1991).The Secretary contends that she established a prima facie showing ofRegina’s knowledge of the hazardous condition by introducing statementsmade by Coleman, as testified to by the compliance officer, that hisforeman had actual knowledge of his situation. Regina argues that thosestatements are hearsay and inadmissible, and therefore the Secretaryfailed to make the requisite _prima_ _facie_ showing of knowledge.Regina further asserts that, even if the Secretary did make such ashowing, the testimony of Warren DiLandro, Regina’s constructionmanager, who was its general superintendent for the project, issufficient to rebut that showing.A. _Compliance Officer’s Testimony_The compliance officer, the Secretary’s only witness, testified that,after he observed Coleman during the inspection, he asked Coleman \”ifhis foreman had been there with him and [Coleman] said [his foreman] hadjust left, that he had brought him up and given him the workassignment.\” The compliance officer testified that, during thisconversation, which lasted about a minute, Coleman told him that \”he hadbeen there for awhile doing the work.\” Coleman’s statement to thecompliance officer is consistent with the compliance officer’sobservation that the area where Coleman was working was still damp,which demonstrated to him that Coleman \”had been there for aconsiderable period of time.\”B. _General Superintendent’s Testimony_Warren DiLandro, Regina’s general superintendent for the project,accompanied the compliance officer during the inspection. DiLandro wasnot asked, and there is no evidence in the record that indicates,whether DiLandro heard the conversation that the compliance officer hadwith Coleman. There is evidence that DiLandro saw Coleman during theinspection, for it was at the compliance officer’s request that heidentified Coleman as a Regina employee and gave his name to thecompliance officer. According to DiLandro, Coleman \”was in the righttower but the wrong place\” because where he was working no rubbing wasrequired, as those walls were to be covered with brick. DiLandroexplained that he had instructed Coleman’s foreman, who is named WilliamNesbit, to have his concrete finishing crew \”use the swing staging that[was] set up in the east tower stairwell and rub\” walls other than whereColeman was working When asked \”did you verify with the foreman that Mr.Coleman was not authorized to be in that area,\” DiLandro responded inthe affirmative. He responded in the negative when asked if any Reginaemployees were \”working in that particular area on that particular day.\”C. _Judge’s Decision_In his decision, the judge stated that \”Mr. Coleman was performing theconcrete finishing work in question in an area that was authorized byMr. Nesbit, the foreman.\” He noted that \”[t]here was conflictingtestimony on this.\” Rejecting Regina’s argument that Coleman’s statementto the compliance officer was hearsay, the judge concluded thatthe statement concerned the scope of hisemployment, and is therefore admissible andreliable. It qualifies as an admission. FRERule 801 (d)(2)(D).He determined that \”[t]he foreman had just seen and spoken to theexposed employee and saw, or should have seen, that he was exposed tothe fall hazard,\” and he imputed Nesbit’s knowledge to Regina.D. _Admissibility of Testimony as to Coleman’s Statements_Rule 71 of the Commission’s Rules of Procedure, 29 C.F.R. ? 2200.71,provides that in Commission proceedings \”[t]he Federal Rules of Evidenceare applicable.\” In concluding that Coleman’s statements to thecompliance officer were admissible, the judge relied on Rule801(d)(2)(D) of the Federal Rules of Evidence, which states:(d) Statements which are not hearsay.–Astatement is not hearsay if–* * *(2) Admission by party-opponent. –The state-ment is offered against a party and is . . .(D) a statement by his agent or servantconcerning a matter within the scope of hisagency or employment, made during theexistence of the relationship. . . .At the hearing Regina timely objected to the admission into evidence ofthe compliance officer’s testimony regarding his conversation withColeman. Regina acknowledges that the judge admitted the testimonyconcerning Coleman’s statements because the statements \”concernedmatters within the scope of the employee’s agency.\” However, Reginacontends that the statements are hearsay, and \”[u]nder Rule 802, hearsayis not admissible except as provided in certain limited exceptions. TheSecretary failed to show that any such exception existed in this caseand, indeed, [one] did not.\”The Secretary supports the judge’s decision that, as testified to by thecompliance officer, Coleman’s statements about what Nesbit told him werenot hearsay and were admissible under Rule 801(d)(2)(D), citing _AstraPharmaceutical Products, Inc. v. OSHRC_, 681 F.2d 69, 73 n.8 (1st Cir.1982) (out-of-court statements of employees not hearsay but ratheradmissions of party opponent under 801(d)(2)(D)); _StanBest, Inc._, 11BNA OSHC 1222, 1227, 1983-84 CCH OSHD ? 26,455, p. 33,621 (No. 76-4355,1983)(same).Both Coleman and his foreman Nesbit were employees of Regina at the timethe statements at issue were made, and the statements concerned theirwork activities, which were within the scope of their employment.[[4\/]]Based on the plain language of Rule 801(d)(2)(D), the statements areadmissions, which are not hearsay. Therefore, their statements areadmissible.Regina argues that foreman Nesbit’s instructions to Coleman as describedby Coleman to the compliance officer are \”double hearsay.\” The judgerejected that claim, noting: \”See also FRE Rule 805 (the otherwisedouble hearsay of Nesbit would also qualify as an admission).\” The ruleto which he refers is Rule 805 of the Federal Rules of Evidence, whichprovides:Hearsay included within hearsay is notexcluded under the hearsay rule if each partof the combined statements conforms with anexception to the hearsay rule provided inthese rules.While it is arguable that Rule 805 does not apply where, as here, thestatements at issue are admissions under Rule 801(d)(2)(D), a number ofcourts have considered admissions to be \”within the spirit and purposeof the rule.\” _McCormick on Evidence_ ? 324.3 (E. Cleary 3d ed. 1984).Commentators have noted that the language in Rule 805 requiring thateach part \”conforms with an exception to the hearsay rule\”[[5\/]] hasbeen read by courts to include\” [s]tatements which are not hearsay\”under Rule 801(d), such as admissions by a party-opponent. 4 J.Weinstein & M. Berger, _Weinstein’s Evidence_ ? 805 [01] (1990) ; 4 D.Louisell & C. Mueller, _Federal Evidence_ ? 496 (1980 & Supp. 1990)._See_, _e.g._, Y_ohay v. City of Alexandria Employees Credit Union,Inc._, 827 F.2d 967, 970 (4th Cir. 1987) ; _United States, v. PortsmouthPaving Corp_., 694 F. 2d 312, 321-322 (4th Cir. 1982).As we found above, each part of the combined statements at issue here isnot hearsay and therefore not excluded under the hearsay rule accordingto Rule 805. Both Nesbit’s \”admission\” to Coleman assigning him to workin the location, and Coleman’s \”admission\” to the compliance officer,which contains Nesbit’s \”admission,\” are not hearsay under Rule801(d)(2)(D).We therefore conclude that, based on the considerations above, thecompliance officer’s testimony concerning statements made to him byColeman during the inspection is admissible.E. _Reliability of Coleman’s Statements to the Compliance Officer _In his decision, the judge appeared to equate admissibility withreliability–\”the statement concerned the scope of his employment, andis therefore admissible and reliable.\” Regina also appears to combinethe two concepts in its arguments. As the Commission has noted,\”[w]hether evidence should be classified as non-hearsay for the purposeof determining its admissibility bears little relation to its value tosupport the Secretary’s case.\” _Morrison Knudsen, Inc._, 13 BNA OSHC1121, 1123, 1986-87 CCH OSHD ? 27,869, p. 36,540 (No. 80-345, 1987).Certain exceptions to the hearsay rule (see note 5 _supra_) existbecause the statements are considered to be inherently reliable. This isnot true of admissions. As the Advisory Committee on Proposed FederalRules of Evidence pointed out:Admissions by a party-opponent are excludedfrom the category of hearsay on the theorythat their admissibility in evidence is theresult of the adversary system rather thansatisfaction of the conditions of the hearsayrule….No guarantee of trustworthinessis required in the case of an admission.Fed. R. Evid. 801(d)(2) advisory committee’s note.The judge did not specifically discuss the reliability of the declarantColeman, but instead addressed only the reliability of the complianceofficer, whose memory he characterized as \”accurate in its essentialparticulars.\” While the compliance officer’s ability to correctlyappreciate the employee’s words and accurately communicate them to thejudge is relevant to the probative value to be assigned the statements,the more significant considerations concern the reliability of thedeclarant–such as, whether the declarant recognized the import of hisstatement, and whether the declarant had a propensity for veracity. _SeeMorrison-Knudsen, Inc._, 13 BNA OSHC at 1123-24, 1986-87 CCH OSHD at p.36,540.Although admissions under Rule 801(d)(2)(D) are not inherently reliable,there are several factors that make them likely to be trustworthy,including: (1) the declarant does not have time to realize his ownself-interest or feel pressure from the employer against whom thestatement is made; (2) the statement involves a matter of thedeclarant’s work about which it can be assumed the declarant iswell-informed and not likely to speak carelessly; (3) the employeragainst whom the statement is made is expected to have access toevidence which explains or rebuts the matter asserted. 4 D. Louisell &C. Mueller, _Federal Evidence_ ? 426 (1980 & Supp. 1990).Coleman stated that he was assigned by his foreman to work in thatlocation. That is consistent with his presence in the area. As theSecretary points out, it is unlikely and illogical that an employeewould leave his crew, go to a different location, disregard a safetyrailing and warning sign,[[6\/]] and perform concrete finishing work,unless someone had instructed him to do that. Because Coleman had nosupervisory role and therefore did not set his own work assignments,this case is distinguishable from such cases as _Hogan Mechanical,Inc_., 6 BNA OSHC 1221, 1223, 1977-78 CCH OSHD ? 22,429, p. 27,055 (No.15438, 1977), in which a working foreman told his boss that he would beworking at one site and then took it upon himself to proceed to anotherjobsite, where an OSHA inspection was conducted.To cast doubt on Coleman’s reliability, DiLandro testified, withoutobjection, that foreman Nesbit had told him that \”this is the second orthird time that Mr. Coleman hasn’t followed instructions. . . .\”However, in light of the factors mentioned above, we conclude thatColeman’s statements that he was assigned to work there are reliable.Having made this determination, the next question is whether they aremore reliable than conflicting statements in evidence.F._Weighing the Conflicting Evidence_As noted above, DiLandro’s testimony on direct examination that he\”verified\” with foreman Nesbit that he had not authorized Coleman to bein that area[[7\/]] was introduced to rebut Coleman’s statement that hehad been assigned by his foreman to work there.The issue therefore comes down to the relative credibility of twoout-of-court declarants, Coleman and Nesbit. The Commission stated in_Continental Electric Co._, 13 BNA OSHC 2153, 2155 n. 6, 1989 CCH OSHD ?28,493, p. 37,756 n.6 (No. 83-921, 1989), \”[a]s an out of courtdeclaration, the employee’s statement [to the Secretary’s industrialhygienist] inherently has less probative value than would the employee’sown testimony and is not necessarily entitled to dispositive weight.\”That is because the judge has no opportunity to assess the credibilityof the declarant and the opposing party has no chance to cross-examine._Morrison-Knudsen, Inc._, 13 BNA OSHC at 1123-24, 1986-87 CCH OSHD at p.36,540. While the judge here found the compliance officer to be acredible witness (but was silent as to DiLandro), he could not make acredibility determination between the two out-of-court declarants,Coleman and Nesbit.Each party argues that adverse inferences should be drawn against theother party for failing to produce or explain the absence of Coleman orNesbit at the hearing. Regina argues that it would be unfair for aviolation to be upheld on the basis of out-of-court statements where theSecretary made no showing that Coleman was not able to attend thehearing to testify. That does not affect the admissibility of thestatements because \”Rule 801(d)(2) . . . reflects a common sense viewthat statements of a principal actor should generally be received ratherthan excluded from evidentiary consideration. Because of their value,such statements are receivable whether or not the declarant is availableor appears as a witness.\” 4 J. Weinstein & M. Berger, _WeinsteinEvidence_, ? 801(d)(2)[01] (1990).Regina itself could have called Coleman as a witness (for it was in asgood a position as the Secretary to do so) to rebut the complianceofficer’s testimony, but it did not. More significantly, as noted by theSecretary, Regina could have call on foreman Nesbit to rebut thecompliance officer’s testimony. However, Regina did not, despite thefact that its witness list, filed less than a week before the hearing,had \”William Nesbit, employee\” as its second entry. Instead, in anattempt to refute the compliance officer’s testimony, Regina presentedonly DiLandro’s testimony about Nesbit’s out-of-court statement to him.We therefore find that Regina had an opportunity to test the reliabilityof Coleman’s statements, but failed to do so. Nesbit’s \”verifying\”statement to DiLandro is self-serving and lacks the assurances ofreliability present in Coleman’s comments.It is unfortunate that neither Coleman nor Nesbit was called as awitness. Nevertheless, although Coleman’s statements to the complianceofficer are inherently less probative than the employee’s own testimonywould have been, that evidence does rise to the level of establishingRegina’s knowledge by a preponderance of the evidence when weighedagainst Regina’s rebuttal evidence. Although she has met her burden ofproof, the evidence presented by the Secretary here is \”obviously at theouter limits of sufficiency.\”_Astra Pharmaceutical Products, Inc. v.OSHRC_, 681 F.2d at 73 n. 9.Therefore, we conclude that, based on Coleman’s statements as testifiedto by the compliance officer, whose memory the Judge credited, theSecretary has established by a preponderance of the evidence thatRegina, through its foreman Nesbit, knew of the violative condition.[[8\/]]G. _Regina’s Rebuttal Evidence_In a section 5(a)(1) case, an employer can rebut the Secretary’s showingof knowledge and feasible means to eliminate the hazard, [[9\/]] byestablishing that the employee’s conduct was unpreventable because theemployer took all necessary precautions to prevent the occurrence of thecited condition[[10\/]] _E.g_., _General Dynamics Corp.v. OSHRC_, 599F.2d 453, 458 (1st Cir. 1979); _Western Massachusetts Electric Co._, 9BNA OSHC 1940, 1945, 1981 CCH OSHD ? 25,470, p. 31,766 (No. 76-1174,1981) . Where, as here, the employer defends against a section 5(a)(1)charge by asserting that it had an established work rule designed toprevent the violation, the employer must first show that the rule wasadequate to prevent the violation and was sufficiently communicated toits employees. _Brown & Root, Inc._, 8 BNA OSHC 2140, 2144, 1980 CCHOSHD ? 24,853, p. 30,656 (No. 76-1296, 1980); see _Western MassachusettsElectric Co._, 9 BNA OSHC at 1945, 1981 CCH OSHD at p. 31,766. Theemployer must also establish that it took steps to discover violationsof the work rule and that it effectively enforced the rule in the eventof infractions. Id.Regina argues on review that the judge erred in concluding that it didnot successfully rebut the Secretary’s showing of knowledge,[[11\/]] forit had established each of the elements noted above. Concerning Regina’ssafety program in general, the evidence shows that Regina: gives eachnew employee a copy of Regina’s written safety rules (written in Englishand Spanish), and allows the employee time to review the document andsign it; holds weekly safety meetings; and has a written disciplinaryprogram that includes warnings and notices to employees who violatesafety rules, with the potential for termination of employment. However,these aspects of Regina’s general safety program do not concern theother, more specific, factors that must be established to prove that thecondition was unpreventable.An employer’s key to rebutting the Secretary’s proof of knowledge in asection 5(a)(1) case is to present proof of an adequate work rule. Atthe hearing, Regina introduced into evidence a copy of its writtensafety program, which contains the following work rule, upon which itparticularly relies for its rebuttal: \”[s]afety belts will be worn’without exception’ when working in high places not protected by guardrails.\”Other Regina safety rules, however, such as its rules on ladders andexcavations, include particular measurements in feet. We takeadministrative notice that other employers have addressed the samehazard in their work rules in a much more specific manner. See e.g.,Pace Construction Corp.,14 BNA OSHC 2216, 2217 n.5, 1991 CCH OSHD ?___(No. 86-785, 1991) (rule requiring safety belt where no other protectionwhen exposed to fall of 4 feet or more). Moreover, in other section5(a)(1) cases, the Commission has found work rules to be inadequate forsimilar reasons. _See Little Beaver Creek Ranches, Inc._, 10 BNA OSHC1806 1810-11, 1982 CCH OSHD ? 26,125, p. 32,879 (No. 77-2096, 1982)(employees not told how far to keep pipe away from power lines); _Brown& Root, Inc._, 8 BNA OSHC at 2144, 1980 CCH OSHD at p. 30,656(instructions to employees not to work under overhead operations \”toogeneral to be an effective work rule\”). Regina’s work rule does notdefined \”high places,\” nor is that term defined or explained elsewherein its safety rules. Therefore, based on all the factors above, weconclude that the work rule upon which Regina relies for its rebuttal isinadequate.[[12\/]]Even if we assume that Regina’s work rule was adequate, there is noevidence that Regina took action to discover violations of it. Indeed,it was the failure of Regina’s, foreman to discover the hazardouscondition that Coleman was exposed to that formed the basis for thejudge’s rejection of the Regina’s rebuttal evidence. See note 11 _supra_.Regina contends that its \”records show that the employee was providedwith a safety belt . . . .\” However, the evidence established thatseveral safety belts had been signed out to Coleman’s foreman, but noneto Coleman himself. Yet, of greater significance than how the belts weresigned out is foreman Nesbit’s failure to ensure that Coleman waswearing a safety belt. As established by Coleman’s statement to thecompliance officer, the foreman had brought him to the location at issueand assigned him to work there. Therefore, the foreman should haveobserved that Coleman was not wearing a safety belt, and he should haveordered Coleman to put on a safety belt.Based on all the factors discussed above, we conclude that Regina’ssafety program was inadequate, and that Regina did not rebut theSecretary’s proof of knowledge and feasible means to eliminate thehazard by establishing that the violative condition was unpreventable.Accordingly, there being no other section 5(a)(1) elements in dispute,we affirm the judge and conclude that Regina had knowledge that itsemployee was exposed to a recognized fall hazard, and chat it violatedsection 5(a)(1) of the Act.III. _Penalty_Under section 17(j) of the Act, 29 U.S.C. ? 666(j), the factors for theCommission to consider in assessing a penalty are:the size of the employer; the gravity of the violation; the good faithof the employer; and the history of previous violations.The judge found that the $400 penalty proposed by the Secretary wasinappropriate because of \”Regina’s good faith as indicated by thestipulations and its substantial safety program,\” such as its handout ofsafety rules issued to new employees and its weekly safety meetings. Heassessed a penalty of $250. The Secretary does not take issue with thatassessment.Based on the penalty factors in section 17(j) of the Act, 29 U.S.C. ?666(j), we agree with the judge that a penalty of $250 is appropriate,and we assess that amount for the violation of section 5(a)(1)Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: May 15, 1991————————————————————————ANN MCLAUGHLIN, SECRETARY OFLABORU. S. DEPARTMENT OF LABORComplainantv.REGINA CONSTRUCTION CORPORATIONRespondentDocket No. 87-1309APPEARANCES:MICHAEL ROSENTHAL, ESQUIREU.S. Department of LaborOffice of the SolicitorFor the ComplainantLOUIS FIREISON, ESQUIREFor the Respondent_DECISION AND ORDER_TENNEY, JUDGEI. _PROCEDURAL HISTORY_This case arises from an inspection of a construction project for anaddition to the Washington Hospital Center in Washington, D.C. ReginaConstruction Co. (\”Regina\”) was the concrete placement subcontractor. Asa result of the inspection, Regina was issued two citations for allegedviolations of the Occupational Safety and Health Act,29 U.S.C. 651-678 (\”the Act\”).The first citation was for alleged \”serious\” violations. Still at issueunder that citation are alleged violations of: (1) section 5(a)(1) ofthe Act, based an falling hazards to an employee performing concretefinishing work; (2) 29 C.F.R. 1926.450(a)(1), based on alleged fallinghazards to employees who did not use a ladder for access to the top oftwo columns where concrete was to be placed; and (3) 29 C.F.R.1926.651(g), based on alleged failure to protect employees by excavatinga soil back to the \”angle of repose.\” The second citation alleges another than \”serious\” violation of 29 C.F.R. 1926.152(d)(2), because nofire extinguisher was located within a prescribed distance from a dieselstorage tank.Regina filed a timely notice of contest to both citations and theproposed penalties. Both parties filed formal pleadings. A hearing washeld on February 2, 1988, in Washington, D.C. Both parties were given afull opportunity to present witnesses and evidence, and to cross-examinethe other party’s witnesses.II. _DECISION__Citation 1, Item 1: Section 5(a)(1) of the Act_1. Regina Construction Corporation is a corporation with a principalplace of business located in Alexandria, Virginia. It employs about 61employees. About 39 employees were at its workplace at the WashingtonHospital Center. It is an employer engaged in a business affectingcommerce within the meaning of section 3(5) of the Act, 29 U.S.C.642(5). (Pleadings)2. Regina’s Washington Hospital Center workplace was inspected by OSHAcompliance officer John Wiseman (\”the inspector\”) on June 26 and 29,1988. Testimony of Mr. Wiseman, (Tr. 11, 69); Ex. C-2, 4, 6, and 8.3. Mark Coleman was employed by Regina in the morning of June 20, 1987,and was doing concrete finishing work (\”rubbing\”) on a wall of a shaftopening in the workplace while standing near the edge of a floor, about24 feet above ground. Testimony of Mr. Wiseman (Tr. 12, 16); Ex. C-1.4. Coleman was working beyond a safety railing which had a large,clearly visible sign attached that stated, \”Danger, Keep Out.\” Colemanwas not using a safety belt or other personal protective equipment. Hewas exposed to a fall hazard of 24 feet. Testimony of Mr. Wiseman (Tr.16-17, 31, 35) ; Ex. C-1.5. Regina recognized the hazard to an employee working in a high place,was exposed to 24 feet, and that in the absence of guardrails safetybelts were to be worn. Ex.R-1, General Safety Rule 2)6. A fall by an employee of 24 feet would likely cause serious physicalharm. There was a risk of broken bones or even death. Testimony of Mr.Wiseman (Tr. 17- 18)7. Mr. Coleman was performing the concrete finishing work in question inan area that was authorized by Mr. Nesbit, the foreman. There wasconflicting testimony on this. Mr. Wiseman, the compliance officer,testified that Mr. Coleman had told him that his foreman, Mr. Nesbit,had just left, after bringing him to the location and giving him hiswork assignment. He also testified that in the course of the inspectionhe and Mr. DiLandro, Regina’s superintendent, passed Nesbit on the wayto the shaft opening where Coleman was working and that Nesbit was justleaving the general vicinity of the shaft opening. Knowledge by Nesbitwas inferred from these facts. Testimony of Mr. Wiseman (Tr. 19, 20) Onthe other hand, Mr. DiLandro testified that he verified with Nesbit thatColeman was not authorized to be in the area and had been dismissed forthat reason; he further testified that he instructed Nesbit to have theconcrete finishing (rubbing) crew rub out the walls, but that no rubbingwas required in the area where Coleman was working because the wallsthere were to be covered with brick. No other employees of Regina wereworking in this area. Testimony of Mr. DiLandro (Tr. 117, 118)Regina complains that the Coleman statement is hearsay. However, thestatement concerned the scope of his employment, and is thereforeadmissible and reliable. It qualifies as an admission. FRE Rule801(d)(2)(D). See also FRE Rule 805 (the otherwise double hearsay ofNesbit would also qualify as an admission). Moreover, the Colemanstatement is corroborated in some measure by the physical presence ofNesbit in the area in question, Regina, however, seeks to undercut thecompliance officer’s identification of the foreman by noting that Mr.Wiseman’s testimony that the foreman was a white man conflicted withthat of Mr. DiLandro that the foreman was black. (Tr. 25, 116) I amconvinced, however, that the memory of Mr. Wiseman was accurate in itsessential particulars.8. Mr. Coleman was not wearing a safety belt. See Paragraph No. 4. It isalso unclear whether he was issued one. There is testimony that one wasissued for Coleman. Testimony of Mr. DiLandro (Tr. 113, 114) But thesame testimony indicates that it is actually the foreman who signs forsafety belts and picks them up. It also noted Regina does not practicework with safety belts because they tend to be \”inefficient\”, and Reginatries to put employees in position where they are unencumbered.Testimony of Mr. Gates (Tr. 108, 109)9. Regina through Nesbit knew, or should have known that Coleman was notwearing a safety belt.10. The proposed penalty of $400 was calculated in accordance with OSHAguidelines, but the proposed penalty was reduced by 20 percent in orderto select an adjustment in the \”good faith\” factor resulting from thewithdrawal of Citation 1, item 2(a). Stipulations (Tr. 20, 42)11. Feasible means existed of abating the recognized fall hazard. Theforeman, who knew of Coleman’s hazardous situation, could have orderedhim to leave the area or to use a safety belt and lifeline. (Ex. R-1,Rule 2); testimony of Mr. DiLandro (Tr. 22, 113-114)12. The $400 penalty that is proposed by the Secretary is inappropriatein light of Regina’s good faith as indicated by the stipulations and itssubstantial safety program. For example, the evidence indicates thateach employee was given a copy of Regina’s safety rules upon beinghired, was given enough time to review properly the document and wasrequired to sign it. The employee’s understanding of the safety ruleswas checked. Weekly safety meetings were held. (Tr. 100-103) Safetybelts and lifelines were available to the employees and they wereclearly on notice to use them if working in high places withoutguardrails. A penalty of $250 if appropriate in light of the gravity ofthe violation, Regina’s size, the lack of previous violations shown, andits degree of good faith.13. There is a threshold issue involving the Secretary’s amendment ofcitation 1, item 1, in the Complaint to allege a violation of section5(a)(1) of the Act instead of 29 C.F.R. 1926.28(a). Regina objected tothe amendment in its Answer on the grounds that an amendment in theComplaint would be untimely, that Regina had not received a citationalleging a section 5 (a) (1) violation, and thus that it would sufferincurable harm. The matter is not pressed in Regina’s brief, but thebrief argues on the premise that 29 C.F.R. 1926.28 (a) is alleged Anamendment of the original citation in the complaint is expresslypermitted under the Commission’s Rules of Procedure. 29 C.F.R. 2200.35(f). See also _National Realty and Construction Co. v. OSHRC_, 489 F.2d1257 (D.C.Cir. 1973) (liberal amendment of original charge is permitted).14. Section 5(a)(1) of the Act is applicable here rather than 1926.28(a). No other construction standard indicates the need for personalprotective equipment regarding the falling hazard here (24 feet). _L.E.Myers Co., High Voltage Systems Div._, 12 OSHRC 1609, 1611-14 (Rev. Com.82-1137, 1986), _rev’d on other grounds_, 818 F.2d 1270 (6th Cir. ),_cert. denied_, 108 S.Ct. 479 (1987). See also _United Auto Workers v.General Dynamics, Land Systems Division_, 815 F.2d 1570 (D.C. Cir.1987); _cert. den_. (U.S. S.Ct. No. 87-260) (correlative duty to complywith section 5(a)(1) of the Act when a standard applies).Section 5(a)(1) provides:Each employer. . . shall furnish to each ofhis employees employment and a place of employ-ment which are free from recognized hazards thatare causing or are likely to cause death orserious physical harm to his employees.In order to prove a section 5(a)(1) violation, the Secretary must showthat a condition or activity in the employer’s workplace presented ahazard to employees, that the employer or its industry recognized thathazard, that the hazard is likely to cause death or serious physicalharm and that feasible means existed to eliminate or materially reducethe hazard. _United States Steel Corp._, 12 BNA OSHC 1692, 1697-98 (Rev.Com. 79-1998, 1986) The Secretary proved all elements.15. In order to show a recognized hazard, the Secretary must prove thatthere was a preventable condition in the workplace over which theemployer reasonably can be expected to exercise control. _E.g_., _PelronCorp._, 12 BNA OSHC 1833, 1835 (Rev. Com. 82-388, 1986). Reginarecognized such a hazard– the hazard of an employee working inproximity to a 24-foot fall hazard without fall protection–as shown byits safety rule quoted above (Paragraph No. 5). The Secretary also mustshow that Regina knew, or could with the exercise of reasonablediligence have known, of the existence of the violative conditions inits workplace. _See_, _e.g._, _Getty Oil Co. v. OSHRC_, 530 F.2d 1143,1145 (5th Cir. 1976). The actual and constructive knowledge of a foremanmay be imputed to his employer. _Dun-Par Engineered Form Co._, 12 OSHC1962, 1965-66 (Rev. Com. 82-928, 1986). The foreman’s knowledge has beenimputed here. Paragraphs Nos. 7, 8, and 9.16. Regina argues that it lacked knowledge of Coleman’s exposure becauseit resulted from an isolated instance of employee misconduct that wascontrary to the foreman’s instructions. The argument is unpersuasive.The foreman had just seen and spoken to the exposed employee and saw, orshould have seen, that he was exposed to the fall hazard. Paragraph No. 717. Finally, it should be noted that to prove the existence of feasiblemeans of reducing or eliminating the hazards, the Secretary must: (1)establish the type of conduct necessary to avoid citation under similarcircumstances and (2) demonstrate the feasibility and likely utility ofsuch conduct. _E.g._, _United States Steel Corp._, supra, 12 BNA OSHC at1700. Here, the necessary employer conduct would be for Nesbit to haveabated the hazards by ordering CoIeman out of the hazardous area, orordering him to use a safety belt and lifeline. The feasibility andlikely utility of that step is indicated by the fact that SuperintendentDiLandro did order Coleman to put on that equipment.18. The Secretary has proved all the elements of a section 5(a)(1)violation; this item is affirmed. A penalty of $250 has been foundappropriate._Citation 1, Item 2b–1926.450(a)(1)_19. Regina was pouring concrete columns about 11 to 14 feet high. Theforms were wood planks, and they were braced together with horizontalmetal braces (\”column clamps\”). Testimony of Mr. Wiseman (Tr. 44-46, 125-26)20. Two employees climbed the metal bracing of the form work to \”the topportion\” of a column that was about 14 feet high. They stood on bracingnear the top to place concrete, and wore safety belts and lifelines indoing so. Testimony of Mr. Wiseman (Tr. 46-48, 128-30); that of Mr.DiLandro (Tr. 128-130)21. The metal braces provided safe access for the employees to theirwork. The braces were three-inches wide and there were three-by-fourinch back boards between them and the form work, so that the employeeshad about six and a quarter inches of toe clearance in front of the woodforms. Testimony of Mr. DiLandro (Tr. 126-27) The braces were \”solidconstruction.\”22. Regina’s employees used means of access that were as safe asladders. The inspector noted potential hazards associated with climbingup the braces and working from them, in that the braces \”normally\” arenot evenly spaced, as are ladder rungs; that they are slippery anddifficult to hold on to while working; and that they do not have thesame toe clearance that ladders provide. (Tr. 46-47; 65-66) However,Superintendent DiLandro testified that ladders also would createhazards. The ladders that the inspector discussed would face the formwork and lean against it at an angle. (Tr. 47-48) DiLandro testifiedthat in fastening the braces, which is a two-man operation, theemployees \”would literally knock each other off the ladder.\” (Tr. 126)DiLandro testified at one point that it would not be dangerous to useladders on the columns, but the hazard of employees knocking each otheroff the columns, which was not disputed, made the use of ladders nosafer than the employee’s methods.23. No one ever fell from one of the clamps on a column – Testimony ofMr. DiLandro (Tr. 134), and there was no evidence of anyone falling froma column in the construction industry under these circumstances.24. The Secretary alleged that Regina violated the named standard inthat a ladder was not used to give safe access to the top of two columnswhere concrete was being placed, and permanent or temporary stairways orsuitable ramps or runways were not provided. Complaint, Par. IX.The allegation tracks closely the cited standard which reads as follows:1926.450 _Ladders_.(a) _General requirements_. (1) Except where either permanent ortemporary stairways or suitable ramps or runways are provided, laddersdescribed in this subpart shall be used to give safe access to allelevations.To the extent that safe access to the columns may be considered anissue, there is a violation of the standard’s terms. But as suggested byRegina, it is _de minimis_ in nature. No abatement order is enteredsince there would be no improvement of safety, and no penalty isassessed. Cf. _Ocean Electric_, 1985 CCH OSHD Par. 27,439 (adm. law judge).25. What mainly was in issue was not the access to the top of thecolumns, but the _use_ of the braces of the forms as an adequate workplatform. (Tr. 45, 129) As to this, there is no persuasive evidence thatthe options of a ladder or a scaffold, which were mentioned (Tr. 45),were superior in safety than than the safety belts and lanyards usedRegina, nor was there argument on the possible application of anydifferent standard dealing with the adequacy of the work platform._Citation 1 Item 3: section 1926.651(g)_26. Regina was charged with a violation of 29 C.F.R. 1926.651(g) in thatthe bank of an excavation for \”footers\” about seven-feet high had notbeen excavated to the \”angle of repose\”.Section 1926.651 in pertinent part reads as follows:1926.651 _Specific excavation requirements_* * * * *(g) All slopes shall be excavated to at least the angle of repose exceptfor areas where solid rock allows for line drilling or presplitting.The term \”angle of repose\” is defined in section 1926.653(b) as follows:The greatest angle above the horizontal place at which material will liewithout sliding.27. Two Regina employees were working near the bottom of the wall of anexcavation cleaning mud from a footer. The wall varied in height fromabout five to seven feet, and was about vertical along the 30-foot areawhere they worked. Testimony of Mr. Wiseman (Tr. 67- 71) that of Mr.DiLandro (Tr. 144); Ex. C-5 and 6. A \”footer\” is a concrete base for astructure (Tr. 85) There was no shoring on the bank. Testimony of Mr.Wiseman (Tr. 75)28. The excavation had been opened by Metrix, and turned over to Reginaon April 6, 1987. At the time of the inspection it had been open aminimum of three months. There was no erosion of the soil within thistime. Testimony of Mr. DiLandro (Tr. 137) See also that of Mr. Wiseman(Tr. 83)29. Since the soil lay without sliding or erosion for three months, itis found to be at \”repose\” within the meaning of the regulatorydefinition. See Paragraph No. 26.30. The composition of the soil was rock. Testimony of Mr. DiLandro (Tr.139) Soil borings were conducted daily on the job. The soil reportsindicated that at that elevation there was a rocky, shaley rockformation. Testimony of Mr. DiLandro (Tr. 138-139) The testimony of thecompliance officer was to the contrary. But he took no soil samples. Hedid note that there were some pipes going through the area whichsuggested previously excavated soil. Testimony of Mr. Wiseman (Tr. 86)However, the compliance officer conceded that there was no indication oferosion, even though the excavation had been open for several weeks.(Tr.88) The testimony of Mr. DiLandro, is credited on the composition of thesoil.31. Since the soil was at repose, there was no violation of section1926.651(g). Moreover, since the soil was rock or shale, the angle ofrepose is in any event ninety percent or vertical. See Table P-1,section 1926.652._Citation 2, Item 1: 1926.152(d)(2)_32. There was a large diesel storage tank outside (next to the ramp atground level) at the site. Testimony of Mr. Wiseman (Tr. 91); Ex. C-833. Diesel fuel is a flammable liquid (official notice)34. There was no portable fire extinguisher within 75 feet of the tank.Testimony of Mr. Wiseman (Tr. 91)35. Regina employees had access to the resulting hazard because therewere Regina employees in the area continuously. The tank was next to thearea where most of those employees would come in and out of theexcavation. Testimony of Mr. Wiseman (Tr. 91)36. Regina knew of the absence of a portable fire extinguisher. One hadbeen put in the area, but it was taken away to be recharged. Testimonyof Mr. DiLandro (Tr. 151)37. The fire hazard was not \”serious\” because, if there were a fire, theemployees could quickly evacuate the area, and there was also a bermaround the area.38. The cited 1926.152(d)(2) provides:At least one portable fire extinguisher havinga rating of not less than 20-B units shall belocated not less than 25 feet, nor more than75 feet, from any flammable liquid storagearea located outside.Regina had no portable fire extinguisher within 75 feet of the flammableliquid storage area, which was located outside. The dispute between theparties was whether Regina’s other fire protection equipment eliminatedthe fire hazard or rendered it _de minimis_. Mr. DiLandro testified thatthere was a fire hydrant about 50 feet from the fuel tank, and afrost-free hand hydrant about 50 feet in the opposite direction. He alsotestified that the tank was surrounded by a berm, so that any leakingdiesel fuel could not leave its confinement, and that the soil nearbywas sandy and could be shoveled to stop a fire. (Tr. 152) He alsotestified that the hydrant could be fitted with a fog mist device andthat with it, the heat and oxygen of a burning liquid fire could beeliminated so that the fire could be put out. However, the fog mistdevice was not attached to the hydrant, although Mr. DiLandro believed afire apparatus vehicle would have the necessary equipment. (Tr. 153-154)Thus, Regina did not establish that its fire hydrants would make aportable fire extinguisher superfluous, i.e., that the hydrants would beas effective as a portable fire extinguisher with regard to all fireemergencies covered by the standard.39. The citation item is affirmed as a violation that is not \”serious\”,but no penalty is assessed.SO ORDERED.PAUL A. TENNEYJudge, OSHRCDATED:May 25, 1988Washington, D.C.————————————————————————FOOTNOTES:[[1\/]] That provision requires an employer to \”furnish to each of hisemployees employment and a place of employment which are free fromrecognized hazards that are causing or are likely to cause death orserious physical harm to his employees.\”[[2\/]] Item 1 originally alleged a violation of section 1926.28(a),which requires the use of personal protective equipment where there is\”exposure to hazardous conditions\” and a standard in 29 C.F.R. Part 1926indicates the need for using such equipment to reduce the hazards to theemployees. L.E. Myers Co., 12 BNA OSHC 1609, 1614, 1986-87 CCH OSHD ?27,476, p. 35,604 (No. 82-1137, 1986), rev’d on other grounds, 818 F.2d1270 (6th Cir. 1987), cert. denied, 484 U.S. 989, 108 S.Ct. 479 (1987).Because Part 1926 only requires protective measures for heights of morethan 25 feet above the ground (see 29 C.F.R. ? 1926.105(a)), section1926.28(a) does not apply to the 24-foot fall distance here. Id.In the complaint, the Secretary amended the item to allege a violationof section 5(a)(1). The judge concluded that the amendment was properpursuant to Rule 35(f) of the Commission’s Rules of Procedure, 29 C.F.R.? 2200.35(f), which permits the Secretary to amend a contested citationonce, as a matter of course, in the complaint, under circumstances suchas these.[[3\/]] Review was directed on whether the judge erred in finding thatRegina violated section 5(a)(1) and had knowledge of the violativecondition. However, Regina raises on review only the issues of whetherthe Secretary proved its knowledge and, if so, whether Reginasuccessfully rebutted the Secretary’s showing of knowledge and of afeasible means to eliminate the hazard.[[4\/]] \”[W]ithin the scope of employment\” has been expanded by thecourts to include matters \”related to\” those within the scope ofemployment. E.g., Koninklijke Luchtvaart Maatschappij N.V. KLM RoyalDutch Airlines v. Tuller, 292 F.2d 775, 784 (D.C. Cir. 1961), cert.denied, 368 U.S. 921, 82 S.Ct. 243 (1961) (Model Code predecessor ofRule applied). See Fed. R. Evid. 801(d)(2)(D) advisory committee’s note.[[5\/]] Exceptions to the hearsay rule are contained in Rule 803 of theFederal Rules of Evidence, \”Hearsay Exceptions; Availability ofDeclarant Immaterial,\” and Rule 804, \”Hearsay Exceptions; DeclarantUnavailable.\”[[6\/]] So far as DiLandro knew, Coleman understood English. Therefore,Coleman should have been able to read the \”Danger, Keep Out\” sign.[[7\/]] That out-of-court \”verifying\” statement by Nesbit to DiLandrowould have been inadmissible hearsay had the Secretary’s counselobjected to it, for an admission by a party is non-hearsay only ifoffered by an adverse party. But, because the Secretary’s counsel didnot object to it, the Commission can consider the evidence. Unless it isobjected to at the hearing, hearsay evidence is admissible. See Rule103(a) of the Federal Rules of Evidence.[[8\/]] Because we base our finding of employer knowledge on the evidencediscussed above, we need not address the judge’s consideration of thatpart of the compliance officer’s testimony that concerned a possibleobservation of foreman Nesbit and the evidence presented by Regina torebut that testimony.[[9\/]] In his decision, the judge found that the Secretary proved thatfeasible means existed to eliminate the recognized fall hazard, becauseshe established that ”[t]he foreman [Nesbit], who knew of Coleman’shazardous situation, could have ordered him to leave the area or to usea safety belt and lifeline.\”[[10\/]] Although the employer’s duty to prevent hazardous conduct andthe requisite elements of an effective safety program are the same incases arising under section 5 (a) (1) of the Act and section 5(a)(2) ofthe Act (requiring compliance with OSHA standards and regulations),those types of cases differ with regard to who has the burden of proofas to preventability. See Western Massachusetts Electric Co., 9 BNA OSHC1940, 1944-45, 1981 CCH OSHD ? 25,470, p. 31,765-66 (No. 76-1174, 1981).Under section 5(a)(1) of the Act, as is the case here, the burden is onthe Secretary to prove that there was a hazardous condition in theworkplace that was preventable, or could have been eliminated byfeasible means. Id. Under section 5(a)(2) of the Act, the burden is onthe employer to plead and prove as an affirmative defense that it couldnot have prevented the employee’s misconduct. Id.[[11\/]] The judge found \”unpersuasive\” Regina’s argument that it lackedknowledge because the condition resulted from isolated employeemisconduct. He then noted that \”[t]he foreman had just seen and spokento the exposed employee and saw, or should have seen, that he wasexposed to the fall hazard.\” In his discussion of Regina’s good faithfor penalty purposes, the judge considered some of the factors uponwhich Regina relies here in its attempt to rebut the Secretary’s proofof knowledge and feasible means of eliminating the hazard.[[12\/]] In his decision, the judge did not specifically address theissue of whether the work rule was adequate for the purpose of rebuttingthe Secretary’s proof of knowledge and feasible means of eliminating thehazard. However, in discussing Regina’s good faith for penalty purposes,the judge stated that Regina’s employees \”were clearly on notice to use[safety belts and lifelines] if working in high places withoutguardrails.\” That statement was not intended to address the effort torebut at issue here.”