“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-3105 WANDER IRON WORKS, INC.,??????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 30, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.COTTINE, Commissioner:??????????? TheRespondent, Wander Iron Works, Inc. (?Wander?), was alleged by the Secretary tohave violated the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (?the Act?), while engaged in constructing a ?Sports Complex? in NewJersey. The case was heard by Administrative Law Judge Jerome C. Ditore and hisdecision was directed for Commission review under 29 U.S.C. ? 661(i).[1] At issue is whether thejudge erred in affirming citations alleging serious violations of 29 C.F.R. ?1926.28(a) and 29 C.F.R. ? 1926.451(m)(6), and item 1 of a citation alleging anonserious violation of 29 C.F.R. ? 1926.25(a). The judge assessed a penalty of$200 for each of the serious violations and no penalty for the nonseriousviolation.I??????????? Thecitation for violation of section 1926.451(m)(6)[2] alleged that Wander failedto provide guardrails and toeboards around the ends and open sides of ascaffold. The compliance officer observed Wander?s foreman, Berenger,installing iron work channels from a bracket scaffold that was 15 feet abovethe ground. It is undisputed that there were no guardrails on this scaffold.The scaffold was suspended from a structural steel beam by two triangular metalbrackets. One bracket was approximately 12 inches from each end of thescaffold. The structural steel beam was 3 feet above and horizontal to theinside edge of the seaffold. According to the compliance officer?s testimony,the beam and the brackets provided some fall protection. The compliance officeralso testified that he personally observed Berenger working and that Berengerwas wearing a safety belt that was not tied off. Berenger testified that he didnot have his belt tied off because he was about to descend from the scaffold togo to lunch.??????????? Thejudge affirmed a serious violation of section 1926.451(m)(6). He stated that ?asafety belt line, if used, would have negated the requirement of scaffoldguardrail protection.? However, he found that the evidence established thatBerenger was not tied off when the compliance officer observed him at work, andthus Berenger was without fall protection at that time.[3] He also found that theRespondent knew or should have known of the hazard and characterized theviolation as serious because a 15-foot fall from the unguarded scaffold couldhave resulted in death or serious injury. Although a $500 penalty had beenproposed by the Secretary, the judge assessed a penalty of $200 because onlyone employee was exposed to the hazard and the brackets on the scaffoldafforded some protection from a fall.?Wander contends that the use of safety belts in lieuof guardrails is a permissible alternative method of compliance with the cited standard.The Commission has held that, in order to prove a violation of section 5(a)(2)of the Act, the Secretary must establish that a specific standard applies tothe facts, there was a failure to comply with that standard, and employees ofthe cited employer had access to the hazard.[4] Anning-Johnson Co.,76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ?20,690 (Nos. 3694 &4409, 1976). An employer may substitute an alternative form of protection fromthat required by the standard if it can establish the elements of one of threedefenses: impossibility of compliance or performance, see, e.g., M. J. LeeConstruction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ? 23, 330(No. 15094, 1979); greater hazard, see, e.g., Russ Kaller, Inc. t\/aSurfa-Shield, 76 OSAHRC 130\/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD ? 21,152(No. 11171, 1976); or multi-employer worksite defenses, see, e.g., Anning-JohnsonCo., supra.??????????? Inthis case, the Secretary established that the scaffold did not have guardrailsas required by section 1926.451(m)(6) and an employee was working on thescaffold. Consequently, the Secretary has established noncompliance with therequirements of the cited standard and exposure. Moreover, Wander has neitherasserted nor established any of the elements of the three defenses that wouldexcuse it from using guardrails on the scaffold.[5] In addition, the use ofsafety belts does not constitute ?equivalent protection? as that term is usedin section 1926.451(m)(6).[6]??????????? Wanderalso contends that the Secretary did not prove that it had knowledge of theviolation. Wander?s foreman, Berenger, obviously had knowledge of the violativecondition inasmuch as he was the employee on the unguarded scaffold. TheCommission has held that, although an employer is generally responsible for aviolation either created by its supervisory employees or within their actual orconstructive knowledge, the employer may defend by showing that it took allnecessary precautions to prevent the occurrence of the violation. F.H.Sparks of Maryland, Inc., 78 OSAHRC 13\/C13, 6 BNA OSHC 1356, 1978 CCH OSHD? 22,543 (Nos. 15472 & 15760, 1978). The employer must show that itestablished work rules designed to prevent the violation, adequatelycommunicated these rules to its employees, and effectively enforced the ruleswhen violations were discovered. Asplundh Tree Expert Co., supra note 5.Consequently, Berenger?s knowledge was properly imputed to Wander unless itestablished that his conduct was unpreventable. Wander never alleged or adducedevidence that the failure to erect proper guardrails on the scaffold?the citedhazard?was the result of unpreventable employee conduct. Thus, Wander?sargument that its foreman?s failure to tie off his safety belt wasunpreventable employee conduct is irrelevant to proving the defense ofunpreventable employee conduct concerning the lack of guardrails on thescaffold.??????????? Accordingly,we affirm a violation of section 1926.451(m)(6). We agree with the judge?scharacterization of the violation as serious based on the probability ofserious injury in the event of a 15 foot fall.II??????????? TheSecretary alleged that Wander violated section 1926.28(a)[7] by failing to require itsemployees to wear safety belts when working on a ladder setting iron workchannels. In this instance Roemer, another employee of Wander, was working on aladder 15 feet above the ground. This ladder was immediately adjacent to thescaffold where Berenger was working. Roemer was not wearing a safety belt, andno other fall protection was provided.??????????? JudgeDitore affirmed a serious violation of section 1926.28(a). He found that Wanderknew or should have known of the condition through its foreman. He rejected theRespondent?s contention that this incident was an isolated occurrence becausethere was no evidence that the Respondent enforced its safety policy requiringemployees to use safety belts. He found the violation to be serious based onthe fact that a 15-foot fall to the ground could have resulted in death orserious injury. However, he reduced the penalty to $200 because only oneemployee was exposed to the hazard.??????????? Wandercontends that knowledge of the violation has not been proven because itsemployees were instructed to use safety belts and its experienced foreman waspresent. Wander also contends that an employer is not liable for violationsthat are unforeseeable when they arise in contravention of work rules or withthe knowledge of an experienced foreman. However, Berenger, the Respondent?sforeman, was working on the scaffold adjacent to the ladder where Roemer wasworking at the time the compliance officer observed the violation.Consequently, Berenger obviously knew or could have known that Roemer was noteven wearing a safety belt.[8]The foreman?s knowledge andapparent approval of the employee?s actions are properly imputed to theRespondent unless the Respondent proves that the supervisor with knowledge ofthe violation was himself adequately supervised with regard to safety matters. KansasPower & Light Co., 77 OSAHRC 39\/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD ?21, 696 (No. 11015, 1977). Although Wander asserts that its safety policyrequired employees to use safety belts where a fall hazard exists, the recordestablishes that only generalized instructions were issued. There is no evidenceshowing that the safety policy was enforced and Berenger?s inaction indicates alack of enforcement. See B-G Maintenance Management, Inc., supra note 5.In addition, Wander has not established that its supervisor?s inaction wasitself unpreventable. F.H. Sparks of Maryland, Inc., supra. Thus, Wanderhas failed to establish the defense of ?unpreventability?.??????????? Weagree with the judge?s conclusion that the violation is serious. Serious injuryis likely to result from a 15 foot fall. Accordingly, we affirm a seriousviolation of section 1926.28(a).III??????????? Item1 of citation 3 alleged that a passageway was cluttered with debris, masonryrubble, sheet metal cuttings, and boards in violation of section 1926.25(a).[9] The compliance officerobserved Roemer walking through the passageway to obtain work materials. Theseconditions exposed Roemer to a tripping hazard. Berenger stated Roemer wasattempting to clear up the debris ?so he could get some of the decking.? It isundisputed that another employer was contractually responsible for the removalof the debris, and Wander did not create or control the condition.??????????? Thejudge affirmed a nonserious violation of section 1926.25(a) and assessed nopenalty. The judge found that Roemer not only had access to the passageway, butactually walked through it to obtain work materials. Consequently, he foundthat Roemer was exposed to a tripping hazard. He held that the Respondent knewof the condition through its foreman and should have required the responsiblecontractor to remove the debris before its employees entered the passageway.??????????? Wandercontends that the Secretary did not prove that it had knowledge of theviolative condition. However, the Secretary established that the foreman knewthat the passageway was cluttered with debris. Berenger admitted that ?therewas debris around the floor when we were bringing panelling in.? He stated thatthis debris was within three feet of the location of the panelling. Thisevidence establishes that Berenger had actual knowledge of the violativecondition. Wander did not contend or adduce evidence that the allegednonserious violation of section 1926.25(a) involved unpreventable employeemisconduct. We accordingly impute Berenger?s knowledge to the Respondent.??????????? Wanderalso argues that it should not be found liable for a violation, of section1926.25(a) because it did not create the debris and was not responsible forclearing it. The Commission has held that, if a subcontractor on amulti-employer worksite establishes that it neither created nor controlled thehazardous condition, it may affirmatively defend against an alleged violationby showing either that it lacked notice that the condition was hazardous orthat its exposed employees were protected by realistic measures taken as analternative to literal compliance with the cited standard. See Anning-JohnsonCo., supra; Grossman Steel & Aluminum Corp., 76 OSAHRC 54\/D9, 4BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976).??????????? AlthoughWander established that it did not create the debris and was not contractuallyresponsible for removing it, Wander did not present any evidence that it tooksteps to protect employees against the tripping hazard.[10] Nor did it present anyevidence that it requested the general contractor, who was contractuallyresponsible for maintaining the area, to comply with the standard.[11] Consequently, we rejectWander?s contention that it should not be liable for a violation of section1926.25(a) because it did not create or control the hazardous condition. Weagree with the judge that the Respondent violated section 1926.25(a).IV??????????? Weconclude that the judge properly affirmed each of the three citations at issueand further conclude that the judge?s penalty assessments are appropriate forthe reasons he assigned. Accordingly, the judge?s decision is AFFIRMED. IT ISSO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.Executive SecretaryDATED: APR 30, 1980 BARNAKO, Commissioner, concurring in part anddissenting in part:??????????? Iagree with the majority?s disposition of the citations for violation of 29C.F.R. ?\u00a01926.451(m)(6) and 29 C.F.R. ? 1926.25(a) for the reasons theyassign. I would vacate the citation for violation of 29 C.F.R. ? 1926.28(a) anddissent from the majority?s decision to find Respondent in violation of thatstandard.??????????? Respondentwas cited for a violation of 29 C.F.R. ? 1926.28(a) because the complianceofficer observed an employee of Respondent on a ladder without using a safetybelt. The ladder was leaning against a steel column, and the employee was nearthe top of the ladder, approximately fifteen feet above the floor. According tothe compliance officer, the employee was ?hammering on something,? and ?hishands and a portion of his torso were leaning on the side rails of the ladder,on the left-hand side.? Based on these facts, the compliance officer concludedthat the employee was subject to a falling hazard, and should have used asafety belt tied off to a strap around the column to protect against thehazard.??????????? Inorder to establish a violation of section 1926.28(a) for failure to use asafety belt, the Secretary must prove, among other things, that a reasonableperson familiar with the cited employer?s industry would recognize that anemployee was exposed to a fall hazard. S & H Riggers and Erectors, Inc.,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979)(lead and concurring opinions). In my opinion, the Secretary has not met thatburden here. The Secretary, in essence, is asserting that a ladder isinherently an unsafe working platform and that any employee on a ladder issubject to a falling hazard.[12] However, several of theSecretary?s standards permit utilization of a ladder as a means of fallprotection. For example, 29 C.F.R. ? 1926.105(a) provides:Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical. (emphasis supplied).\u00a0??????????? Similarly,a general industry standard, 29 C.F.R. ? 1910.28(a)(1), permits the use of aladder instead of a scaffold when persons are engaged in work that cannot bedone safely from the ground or from solid construction.[13] Inasmuch as theSecretary?s standards contemplate that ladders may be used as safe workingplatforms, both in construction and in general industry, I would not concludethat an employee working from a ladder without personal protective equipment isper se exposed to a falling hazard. Therefore, in the circumstances of thiscase a person familiar with the construction industry would not recognize thatRespondent?s employee was exposed to a fall hazard. I would therefore vacatethe citation for violation of section 1926.28(a).\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-3105 WANDER IRON WORKS, INC.,??????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 7, 1977Appearances:Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555New York, New York 10036Attorney for complainant by BarnettSilverstein, Esq., of counsel\u00a0Shatzkin, Cooper, Labaton, Rudoff &Bundler, Esqs.235 East 42nd StreetNew York, New York 10017Attorneys for respondent by Douglas A.Cooper, Esq., of counsel?DECISION AND ORDERDITORE, J.:STATEMENT OF THE CASE??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651, et seq., hereinafter called the Act), contestingcitations for serious and nonserious violations of occupational safety andhealth standards, issued by complainant against respondent under the authorityvested in the complainant by section 9(a) of the Act (29 U.S.C. ?\u00a0658(a)).??????????? Thecitations allege that as a result of an inspection on or about May 17, 1976, ofa workplace at East Rutherford, New Jersey, and described as a ?SportsComplex?, the respondent violated section 5(a)(2) of the Act (29 U.S.C. ?654(a)(2)) by failing to comply with occupational safety and health standardspromulgated by the Secretary by publication in the Federal Register andcodified in 29 CFR ?? 1926.28(a), 1926.451(m)(6) and 1926.25(a).?The descriptions of the violations and the standardsas promulgated by the Secretary are as follows:??????????? SeriousCitation No. 1: Description29 CFR 1926.28(a): Employee installingmiscellaneous iron work on plaza level at column 50, reaching around the columnand working beyond the side rails of the ladder, was not wearing a safety beltwhere he was exposed to a falling hazard of more than 15 feet from the ladderto the adjacent ground below.\u00a0??????????? Standard as promulgated? 1926.28 Personal protective equipment.?(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.???????????? Serious Citation No. 2:? Description29 CFR 1926.451(m)(6): Platform on bracketscaffold on plaza level at column 50, which was more than 10 above the ground,did not have standard guard rails or toeboards installed on all open sides andends.???????????? Standard as promulgated? 1926.451 Scaffolding.(a) . . ..(m) Carpenters? bracket scaffolds(1) . . ..(6) Guardrails made of lumber not lessthan 2 x 4 inches (or other material providing equivalent protection),approximately 42 inches high, with a midrail, of 1 x 6 inch lumber (or othermaterial providing equivalent protection), and toeboards shall be installed atall open sides and ends on all scaffolds more than 10 feet above the ground orfloor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall beinstalled in accordance with paragraph (a)(6) of this section.???????????? Nonserious Citation, Item 1 : Description29 CFR 1926.25(a): Debris was not keptcleared from the following areas:In work area at plaza level column 42between D & E the debris on floor created a tripping hazard. There waslumber with protruding nails, rubble, construction material and equipment onthe floor.???????????? Standard as promulgated?1926.25 Housekeeping.(a)During the course of construction, alteration, or repairs, form and scraplumber with protruding nails, and all other debris, shall be kept cleared fromwork areas, passageways, and stairs, in and around buildings or otherstructures.???????????? Pursuantto the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. ?\u00a0659(a)),the respondent was notified by letter dated July 8, 1976, from the areadirector of Hasbrouck Heights, New Jersey, that the Occupational Safety andHealth Administration proposed to assess a $500.00 penalty for each of the twoserious violations and a zero penalty for the nonserious violation. The actionwas heard at New York, New York on November 30, 1976.ISSUES??????????? 1.Whether the alleged violations existed at respondent?s workplace on the datesof inspection.??????????? 2. Ifthe one or more or all of the violations existed, whether respondent?semployees were exposed or had access to the hazards created.??????????? 3. Ifrespondent?s employees were exposed or had access, whether respondent wasresponsible for the violations.??????????? 4. Ifrespondent was responsible, whether the penalties proposed for the seriousviolations were reasonable and proper.STATEMENT OF THE EVIDENCE??????????? FromApril 5, 1976 to May 18, 1976, compliance officer Thomas P. Marrinan inspecteda Sports Complex construction site at East Rutherford, New Jersey. Respondent,Wander Iron Works, Inc., was one of about 36 to 39 subcontractors at thejobsite (T. 7 10, 54).[14]??????????? OnApril 27, 1976, about 11:45 a.m., officer Marrinan observed two of respondent?semployees working at column 50 which was located on the spiral access ramp ofthe football stadium. One employee, Kenneth Berenger, respondent?s foreman, wasworking from a bracket scaffold 15 feet above ground level. The scaffold was 20inches wide, 15 feet long and consisted of two 2 x 10 inch planks held by two triangularmetal brackets, 12 inches in from each end of the planks, suspended from astructural steel beam. The ends and outward side of the scaffold were unguarded(T. 11 16, 40, 70; Exhs. C 1, C 2). The other employer, John Roemer, wasworking, 15 feet above ground, from a ladder which was adjacent to one end ofthe scaffold. Roemer was not wearing a safety belt and was not tied off (T. 1618, 23 24, 40, 78, 81; Exh. C 1).??????????? Aboutfive minutes after officer Marrinan took a picture (Exh. C 1) of Berenger andRoemer at work, Berenger descended from the scaffold at officer Marrinan?srequest. Marrinan told Berenger that the scaffold ends and open side wereunguarded; and that Roemer was not tied off while working from the ladder (T.18, 69). Berenger replied that he could use a safety belt and line, which hewas wearing, for protection in lieu of guardrail protection. He demonstratedthe use of a safety belt and line by returning to the scaffold and wrapping his3-foot safety line around a 6 inch square beam, and attaching it to his safetybelt. When he was tied off he had about one or one and one-half feet ofmobility on the scaffold (T. 19, 41, 75; Exh. C-s). When he was first observedby officer Marrinan (Exh, C 1), Berenger was wearing a safety belt but it wasnot tied off (T. 20, 67, 80; Exh. C 1).??????????? OnMay 4, 1976,[15]on the plaza level of the football stadium at column 48, officer Marrinanobserved respondent?s employee Roemer, moving through a passageway and workarea which was cluttered with debris, masonry rubble, sheet metal cutting andboards (T. 30 31, 35 36; Exhs. C 3, C 4). Officer Marrinan was told by Berengerthat Roemer was cleaning up the debris (T. 73).??????????? OfficerMarrinan believed that Roemer was exposed to a serious falling hazard of 15feet when working on the ladder without the protection of a safety belt andlien; and that Berenger was exposed to a serious 15-foot falling hazard whenworking on the unguarded scaffold. He did not believe because of the nature ofBerenger?s work, that the use of a safety belt and line by Berenger waspractical or feasible (T. 19, 21 26). He recommended an adjusted proposedpenalty of $500.00 for each of the two serious violations, and a zero penaltyfor the tripping hazard created by the debris violation (T. 47 50).??????????? KennethBerenger, respondent?s foreman stated that his safety belt was not tied off at11:45 a.m., when he was observed by officer Marrinan because he was preparingto leave the scaffold for lunch; that prior to leaving the scaffold he hit a 2x 4 wedge with a hammer (Exh. C 1); that he was tied off at all other times;that his safety line was 3 feet long and when secured allowed him about 1 to 11\/2 feet of mobility on the scaffold; and that it was respondent?s policy thatall its employees were to wear and use their safety belts (T. 86 90, 104, 105).??????????? Heidentified Roemer as the individual in Exh. C 4, and claimed Roemer was tryingto clean away some of the debris in order to reach some working material. Hedid not see Roemer but was in voice contact with him. The removal of debris wasnot respondent?s duty but if some of it was not cleaned up they would not beable to get their work done. The debris was not in an area through which theyhad to walk to get to their workplace (T. 90 92, 97 98).OPINION??????????? NonseriousCitation, Item 1??????????? Theevidence establishes that the debris observed by officer Marrinan on May 4,1976, at respondent?s worksite, was of a nature and quantity sufficient tocause a tripping hazard to an employee in the area. It was not respondent?sduty to clear away the debris and there is no evidence that respondent createdthe condition or controlled the area where the debris was located.??????????? Theevidence does establish that respondent?s employee, Roemer, not only had accessto the debris area but walked through it to reach materials for respondent?swork. Under these conditions, respondent?s employee was exposed to a trippinghazard while in the debris area. Respondent, through its foreman, knew of thecondition that existed and should have required the party responsible forremoving the debris to do so before its employee entered the debris area.Respondent is responsible for the violation.??????????? SeriousCitation No. 1?29 CFR ? 1926.28(a)??????????? Theevidence establishes that respondent?s employee, Roemer, on April 27, 1976,while working from a ladder 15 feet above ground level, was not wearing andusing a safety belt and line to protect him from a 15-foot fall hazard. Thehazard was serious in that a fall from the ladder by Roemer could have resultedin death or serious physical harm. Respondent, through its foreman, knew orwith the exercise of reasonable diligence should have known of the seriouscondition that existed. Respondent has a safety policy which requires that itsemployees wear and use safety belts and lines but there is no evidence thatthis rule is enforced. Respondent is responsible for the violation.??????????? Thegravity of the violation was average. One employee was involved at the time ofthe inspection on April 27, 1976, and the incident was not repeated at anysubsequent time during the balance of the compliance officer?s inspection ofthe construction site.??????????? Underall the circumstances including a consideration of the statutory factors ofsection 17(j) of the Act, the proposed penalty of $500.00 is unreasonable andis reduced to $200.00.??????????? SeriousCitation No. 3?29 CFR ? 1926.451(m)(6)??????????? KennethBerenger, respondent?s foreman was observed working from a bracket scaffold whichwas unguarded at its open ends and outward side. Berenger claimed that hissafety belt which he was wearing, was tied off to a safety line; that hissafety belt was untied when he was observed because he was about to descendfrom the scaffold for lunch; and that when he was tied off he had about 12 to18 inches of movement on the scaffold.??????????? OfficerMarrinan stated that when he observed Berenger at work he was not tied off;that he was told by Berenger that a safety belt and line could be used in lieuof scaffold guardrails; and that Berenger demonstrated how the safety belt andline could be used. The use of a safety belt and line, if used, would havenegated the requirement of scaffold guardrail protection.??????????? Thecredible evidence establishes that Berenger was wearing a safety belt which wasnot tied off when he was observed at work by officer Marrinan; that he waswithout fall protection at that time; and that he descended the scaffoldbecause of officer Marrinan?s request to do so. It can also be inferred fromthe nature of the work Berenger was performing from the 15-foot long scaffold,that it was not practical for him to use his safety belt and line. The safetyline, if attached, allowed him freedom of movement of only 12 to 18 inches.??????????? Theviolation is serious in that a 15-foot fall by Berenger from the unguardedscaffold could have resulted in death or serious physical harm. The gravity ofthe violation was average. One employee was involved. The triangular bracketsat the ends of the scaffold offered some protection from falls at theselocations. The violation was neither repeated nor continued during thesubsequent inspection of the construction site by officer Marrinan.??????????? Respondentknew, or with the exercise of reasonable diligence should have known of theserious scaffold condition. Respondent is responsible for the violation. Underall the circumstances including consideration of the statutory factors ofsection 17(j) of the Act, the proposed penalty of $500.00 is unreasonable andis reduced to $200.00.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishes preponderant proof ofthe following specific findings of fact.??????????? 1.Respondent, Wander Iron Works, Inc., admits its business affects commerce.??????????? 2. OnApril 27 and May 4, 1976, respondent was performing work as a subcontractor, ata football stadium of a Sports Complex construction site at East Rutherford,New Jersey.??????????? 3.Respondent had a foreman and one other employee working at the site.??????????? 4. OnMay 4, 1976, respondent?s employee, Roemer, in order to reach workingmaterials, walked and passed through an area adjacent to his worksite whichcontained debris. The debris, i.e., masonry rubble, sheet metal cuttings andboards, was of sufficient quantity to create a tripping hazard.??????????? 5.Respondent knew of the debris condition, through its foreman, and took noaction to protect its employee from the hazard created by the debris.??????????? 6. OnApril 27, 1976, respondent?s employee, Roemer, was working from a ladder 15feet above ground level.??????????? 7.Roemer was not wearing a safety belt and was not tied off while working fromthe ladder. He was exposed to a serious fall hazard of 15 feet which could haveresulted in death or serious physical harm.??????????? 8.Respondent knew, or with the exercise of reasonable diligence should have knownof the falling hazard to which Roemer was exposed.??????????? 9. OnApril 27, 1976, respondent?s foreman, Berenger, was working from a bracketscaffold 15 feet above ground level. The scaffold was 20 inches wide, 15 feetlong and supported at each end by a bracket suspended from a structural beam.??????????? 10.The outward side of the scaffold was not guarded by standard guardrails.??????????? 11.Berenger was wearing a safety belt which was not tied off to a safety linewhile he was working from the scaffold.??????????? 12. A15-foot fall by Berenger from the outward unguarded side of the scaffold couldhave resulted in death or serious physical harm.??????????? 13.Respondent knew or with the exercise of reasonable diligence should have knownof the serious hazardous condition of the scaffold from which Berenger wasworking.??????????? 14.Respondent has a safety policy which requires all of its employees to wear anduse safety belts and lines. There is no evidence that this policy is enforcedby respondent.CONCLUSIONS OF LAW??????????? 1. Respondentis, and at all times material herein was, engaged in a business affectingcommerce within the meaning of section 3(5) of the Act (29 U.S.C. ? 652(5)).??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter and parties to this action.??????????? 3. OnApril 27, 1976, respondent was in serious violation of standards 29 CFR ??\u00a01926.28(a)and 1926.451(m)(6) for its failure to protect its two employees from fallhazards of 15 feet.??????????? 4.Under the circumstance of this case with due consideration of the statutoryfactors of section 17(j) of the Act, the proposed penalties of $500.00 for eachof the two serious violations is reduced to $200.00 each.??????????? 5. OnMay 4, 1976, respondent was in nonserious violation of 29 CFR ? 1926.25(a) forexposing one of its employees to a tripping hazard created by debris. Nopenalty is proposed for this violation and none is assessed.ORDER??????????? Duedeliberation having been had on the whole record, it is hereby??????????? ORDEREDthat the citation (No. 1) for a serious violation of 29 CFR ? 1926.28(a), andthe citation (No. 2) for a serious violation of 29 CFR ? 1926.451(m)(6) areaffirmed, it is further??????????? ORDEREDthat the notification of proposed penalty is amended by reducing the $500.00proposed penalties for each of the serious violations to $200.00 each, and asamended, is affirmed, it is further??????????? ORDEREDthat the citation (No. 1, item 1) for the nonserious violation of 29 CFR ?1926.25(a) is affirmed. No penalty is assessed for this violation.?JEROME C. DITOREJUDGE, OSHRCDated: March 7, 1977?New York, New York?\u00a0\u00a0[1] FormerCommissioner Moran issued a general direction for review in this case. Inresponse, Wander filled a letter with the Commission stating that it would relyupon its post-hearing brief in which it had set forth its position with respectto the alleged violations subsequently affirmed by the judge. The Secretary didnot file a brief.[2] The standardreads in pertinent part:?1926.451 Scaffolding.(m)Carpenters? bracket scaffolds.(6)Guardrails made of lumber, not less than 2 x 4 inches (or other materialproviding equivalent protection), approximately 42 inches high, with a midrail,of 1 x 6 inch lumber (or other material providing equivalent protection), andtoeboards, shall be installed at all open sides and ends on all scaffolds morethan 10 feet above the ground or floor . . .[3] Wander contendsthat there was no fall hazard from the scaffold because Berenger receivedadequate protection from the end brackets and beam to which the scaffold wasattached. However, exhibit C-1 clearly establishes that the brackets and beamsprovided no protection against a fall from the front of the scaffold.Consequently, we reject this contention.[4] The allegedviolation of ? 1926.451(m)(6) was characterized as serious. As a result, theSecretary must prove as part of his burden of proof that the employer knew orwith the exercise of reasonable diligence could have known of the presence ofthe violation. See ? 17(k) of the Act, 29 U.S.C. ? 666(j). In addition, theSecretary must prove that there exists a substantial probability of death orserious injury in the event of an accident. See ? 17(k) of the Act, 29 U.S.C. ?666(j).[5] Even if weaccepted Wander?s contention that safety belts provide equivalent protection toguardrails, we would still find Wander in violation of the standard becauseBerenger was not tied off. Wander contends, based on Berenger?s testimony thatBerenger and another employee who was working from a ladder had been tied offand had untied to descend to the ground to eat lunch. In contrast, thecompliance officer testified that both employees were working without tied offsafety belts when he first observed them and that they descended from theirwork stations at his request. The judge resolved this conflict by enteringcredibility findings based on the compliance officer?s testimony. We note thatexhibit C-1 supports the compliance officer?s testimony that the employees wereworking without tied off safety belts. Consequently, we defer to the judge?scredibility finding. See Asplundh Tree Expert Co., 78 OSAHRC 77\/E12, 6BNA OSHC 1951, 1978 CCH OSHD ? 23,033 (No. 16162, 1978). Again assuming theequivalence of guardrails and safety belts, Wander has not established thedefense of unpreventable employee misconduct because it has not proven that itsworkrule requiring the use of safety belts was enforced. See B-G Management,Inc., 76 OSAHRC 60\/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD ?20, 744 (No.4713, 1976) and discussion, infra.[6] Warnel Corp.,76 OSAHRC 41\/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD ? 20, 576 (No. 4537, 1976),does not require a contrary result. In that case, the employer was cited for analleged violation of 29 C.F.R. ? 1926.500(d)(1). That standard provides that anopen-sided floor or platform shall be guarded with ?a standard railing, or theequivalent.? The Commission held that safety belts are not equivalentprotection to guardrails within the meaning of ?\u00a01926.500(d)(1), andlimited that holding to the interpretation of ?equivalent protection.? In theinstant case, the cited standard, ? 1926.451(m)(6), permits the use of materialproviding equivalent protection to lumber, but permits no substitution for theuse of guardrails. Cf., Dick Corp., 79 OSAHRC ??, 7 BNA OSHC 1951, 1979CCH OSHD ? 24,078 (No. 16193, 1979) [? 1926.451(d)(10) permits use ofguardrails constructed from materials providing equivalent protection tolumber, but does not permit use of means of fall protection other than standardguardrails.][7] The standardprovides as follows:?1926.28 Personal protective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[8] Wanderalso argues that Roemer untied his safety belt because he was descending theladder to go to lunch. We reject this argument on the basis of the judge?scredibility determinations. See note 5 supra.[9] The standardprovides as follows:?1926.25 Housekeeping.(a)During the course of construction, alteration or repairs, form and scrap lumberwith protruding nails, and all other debris, shall be kept cleared from workareas, passageways, and stairs, in and around buildings or other structures.[10] We rejectWander?s contention that no violation should be found because Roemer wasattempting to clean up the debris. The judge found that Roemer was not cleaningthe debris, but was walking through the passageway to obtain materials. Insupport of the judge?s finding, we note that Berenger testified that Roemer wasattempting to obtain materials. Exhibits C-3 and C-4 show Roemer walkingthrough the debris. Consequently, we defer to the judge?s credibility finding.See Asplundh Tree Expert Co., supra note 5.[11] In this case,requesting the general contractor to abate the hazard would have been anappropriate alternative measure because of the low gravity of the violation.See J. H. MacKay Elec. Co. & U.S. Eng?r Co., 78 OSAHRC 77\/B10 n. 6,6 BNA OSHC 1947 n. 6, 1978 CCH OSHD ? 23,026 n. 6 (Nos. 16110 & 16111,1978). Moreover, there is no evidence showing that the responsible contractorwould not have cleaned the area, if requested.[12] The complianceofficer?s opinion that a hazard existed was unsupported by an explanation ofthe nature of the hazard, by any evidence demonstrating that the complianceofficer was familiar with incidents in which persons had fallen from ladders,or by any evidence demonstrating that the employee here was subjected to anyspecial hazard not ordinarily encountered by persons working on ladders.[13] Section1910.28(a)(1) provides:Scaffoldsshall be furnished and erected in accordance with this standard for personsengaged in work that cannot be done safely from the ground or from solidconstruction, except that ladders used for such work shall conform to 1910.25and 1910.26.[14] Reference Key: T.refers to pages of minutes of hearing.[15] The pleadings areconformed to the proof to allege the date for the two serious violations asApril 27, 1976 instead of May 17, 1976, and to allege the date of May 4, 1976for the nonserious debris violation.”