L.M. Sessler Excavating & Wrecking, Inc.

Plain-English summary

A Sessler employee dismantling steel on the eighth floor worked from a ladder beside an open elevator shaft and fell into the shaft after a beam broke loose. He was not wearing a safety belt and died from the fall. The company president had issued belts, required their use, checked the equipment that day, and had seen the employee wearing his belt earlier. The Commission held that the Secretary did not prove when the belt was removed or that the foreman knew or reasonably should have known it was no longer being worn. It therefore affirmed the citation's vacation. Chairman Rowland also found insufficient proof that a belt could feasibly be tied off during the particular operation, while Commissioner Cleary dissented because the foreman's statement indicated knowledge of the employee's recurring nonuse.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a)
• Outcome: Safety-belt citation vacated.
• Key point: The Secretary must prove actual or constructive employer knowledge of the specific noncompliant condition, including when and how a required protective device stopped being used.

Full text (OSHRC public release)

Docket No. 79-2168

SECRETARY OF LABOR,

Complainant,

v.

L.M. SESSLER EXCAVATING & WRECKING, INC.,

Respondent.

OSHRC Docket No. 79-2168

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The Secretary of Labor issued a citation alleging that L.M. Sessler
Excavating & Wrecking, Inc. ("Sessler") violated the construction safety and
health standard at 29 C.F.R. � 1926.28(a) because a Sessler employee was not wearing a
safety belt while exposed to a fall hazard.  The standard states in part that
"[t]he employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous conditions
. . . ." Administrative Law Judge Worcester vacated the citation on the ground that
there was insufficient evidence that the employer knew or with the exercise of reasonable
diligence could have known that the employee was not wearing his belt.  For the
reasons that follow, the judge's decision is affirmed.

A Sessler employee, Mr. Gibson, was working on the eighth floor of a building
that was undergoing dismantling and demolition. Mr. Gibson's duties included cutting steel
beams, which were then removed by a crane.  During the cutting of one beam, Mr.
Gibson stood on a ladder next to an open elevator shaft.  According to a statement
hand-written by the compliance officer and signed by Mr. McCann, the foreman on the eighth
floor, Mr. McCann had been watching Mr. Gibson but was distracted and looked away.
 He then heard the beam "snap loose" and turned to see Mr. Gibson falling
backwards into the shaft.  Mr. Gibson died from the fall.  The president of the
company, Mr. Sessler, testified that when he found Mr. Gibson's body at the bottom of the
shaft, he saw that Mr. Gibson had not been wearing a safety belt.

One of the primary disputes at the hearing was whether Sessler knew or with
the exercise of reasonable diligence could have known that Mr. Gibson had not been wearing
his belt.  Mr. Sessler had issued safety belts to all employees, had ordered Mr.
Gibson to wear his belt, and had warned an employee that he would be laid off if he failed
to wear his belt.  On the day the violation allegedly occurred, Mr. Sessler had
checked on the employees' safety belts and the length of their lifelines.  Mr.
Sessler also testified that on the day of Mr. Gibson's fall he had seen Mr. Gibson wearing
his safety belt and did not know when or why Mr. Gibson had removed it.

The Secretary did not call Mr. Gibson's foreman, Mr. McCann, as a witness,
even though he was available to testify.  Instead, he submitted the foreman's
unsworn, written statement and asked the compliance officer questions about what he had
learned while talking to Mr. McCann.  Neither the foreman's statement nor the
compliance officer's account of his conversation with Mr. McCann

indicates when Mr. Gibson removed his belt, whether Mr. McCann was aware before the
accident that Mr. Gibson was no longer wearing one, whether Mr. McCann was in a position
to see that Mr. Gibson had removed his belt, or whether Mr. McCann had failed to check
whether Mr. Gibson was wearing his belt.  The statement simply noted:  "The
elevator shaft was not covered over and Mr. Gibson wasn't wearing a safety belt."

Judge Worcester vacated the citation on the ground that the evidence of
knowledge on Sessler's part was insufficient.  The judge noted in particular that the
written statement signed by the foreman is silent on whether the foreman knew before the
accident that Mr. Gibson had removed his belt.

On review, the Secretary argues that the judge's approach to and evaluation
of the evidence was erroneous.  He urges that we interpret the foreman's written
statement differently than the judge did and find that the written statement shows that
the foreman knew that Mr. Gibson was not wearing his safety belt.  He also argues
that foreman McCann knew that Mr. Gibson "habitually did not wear a safety belt . . .
and disregarded instructions to wear a belt."  Finally, the Secretary maintains
that the wearing of safety belts would have been feasible.

We concur in Judge Worcester's conclusion that the evidence of knowledge was
insufficient.  Commission precedent requires the Secretary to prove as part of his
case-in-chief that an employer knew or with the exercise of reasonable diligence could
have known of a violative condition.  See Prestressed Systems, Inc ., 81
OSAHRC 43/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD � 25,358, p. 31,500 (No. 16147, 1981).
 As to actual knowledge, there is no evidence that Mr. Sessler, the president of the
company, knew that Mr. Gibson was not wearing his belt.  Nor was Mr. McCann, the
foreman who was working on the eighth floor when the accident occurred, shown to have
known prior to the accident that Mr. Gibson was not wearing his belt.  The Secretary
introduced no evidence to show when the safety belt was removed or even that the foreman
was in a position to see that Mr. Gibson had removed his belt.  As Judge Worcester
noted, the foreman's written statement is silent on that point, and the Secretary never
called the foreman to testify, though he could have done so.  To find actual
knowledge would therefore require us to speculate from the foreman's written statement
which, as the judge noted, leaves much to be desired in the way of clarity and
completeness.

We also find insufficient evidence that Sessler could have known, with the
exercise of reasonable diligence, that Mr. Gibson was not wearing his safety belt.
 Mr. Sessler had issued safety belts to the employees and had warned them that they
would not be permitted to work if they did not wear the belts.  Mr. Sessler had
checked that day that the belts were being worn and that the lanyards were the correct
length, and found that Mr. Gibson was wearing his belt.  The burden was on the
Secretary to establish by a preponderance of the evidence that reasonable diligence was
not exercised.  Inasmuch as there is no evidence of when Mr. Gibson removed his belt
or that Mr. McCann, the foreman, failed to check whether Mr. Gibson was wearing his belt,
the record does not support a finding that the foreman could reasonably have known that
Mr. Gibson had removed his belt.  For the foregoing reasons, we find insufficient
evidence that the employer could have known of Mr. Gibson's behavior through the exercise
of reasonable diligence.

Accordingly, the judge's decision vacating citation 2 is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JUN 19 1984

ROWLAND, Chairman, concurring:

I agree that the citation should be vacated because the record does not show
by a preponderance of the evidence that Sessler knew or with the exercise of reasonable
diligence could have known that Mr. Gibson had removed his belt.

I would vacate the citation for an additional reason, however.  Contrary
to the Secretary's argument, the record does not show the feasibility of safety belts.
 Inasmuch as section 1926.28(a) does not prescribe objective criteria for determining
an employer's duty, the Secretary must show that the use of safety belts was
feasible.  See Prestressed Systems, Inc. , 82 OSAHRC 34/C7, 10 BNA OSHC
1816, 1982 CCH OSHD � 26,124 (No. 76-4278, 1982)(Rowland, Chairman, dissenting), and
cases cited; L.R. Willson & Sons, Inc. v. OSHRC , 698 F.2d 507, 513-4
(D.C. Cir. 1983); Voegele Co. v. OSHRC , 625 F.2d 1075, 1079-80 (3d Cir. 1980); Ray
Evers Welding Co. v. OSHRC , 625 F.2d 726, 733 (6th Cir. 1980); Bristol Steel &
Iron Works v. OSHRC, 601 F.2d 717, 723-4 (4th Cir. 1979).  I note that although
the Secretary stated to the judge that he would prove feasibility, he never introduced
evidence on the point. [[1]]  The Secretary introduced no evidence of where a lanyard
could have been attached while the building's beams were being dismantled, even though the
question of where to attach a lanyard is one of the most common in safety belt cases and
the usefulness of safety belts during the dismantling of steel beams may be open to
doubt.  See Industrial Steel Erectors , 74 OSAHRC 2/E5, 1 BNA
OSHC 1497, 1973-74 CCH OSHD � 17,136 (No. 703, 1974) (greater hazard from steel beams
suddenly springing loose).  I therefore conclude that the citation must be vacated
for lack of evidence that the use of safety belts would have been feasible.[[2]]

CLEARY, Commissioner, dissenting:

The preponderance of all the evidence in this record shows that this employer
failed to require Gibson to use his safety belt.  The citation should therefore be
affirmed.

Chairman Rowland would vacate this citation based on his own view that the
Secretary must prove that safety belts are feasible and that he failed to do so in this
case.  The Commission has several times considered whether this extra burden of proof
need be imposed on the Secretary in every safety belt case brought under section
1926.28(a) and has concluded that it need not.  Instead, the Commission has allocated
to the Secretary--the person most familiar with what equipment would be appropriate to
abate a hazard--the burden of identifying the appropriate form of personal protective
equipment.  The Commission concomitantly allocated to the employer--the person most
familiar with the particular circumstances of the work--the burden of showing that the
identified form of equipment could not have been used under the circumstances.  S&H
Riggers & Erectors Inc ., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD � 23,480
(No. 15855, 1979), rev'd on another ground , 659 F.2d 1273 (5th Cir. 1981).  
This allocation has worked well.  It not only conforms the burdens of proof to the
parties' respective abilities and incentives to produce evidence, but it also forestalls
the possibility that the Secretary will be required to introduce such evidence even when
feasibility is not seriously disputed by the employer.  Yet, in this case, one
Commission member has voted to vacate this citation on that ground even though the
employer never claimed that safety belts were not feasible.  Indeed, such a claim
would be flatly inconsistent with Sessler's assertion that Gibson was required to wear his
belt and foreman McCann's written statement that Gibson would be alive if he had worn his
belt.  I would therefore let Commission precedent control this issue and focus on
what the parties do dispute.

Both Chairman Rowland and Commissioner Buckley find that the judge correctly
concluded that the Secretary had failed to show that Sessler had actual or constructive
knowledge that Gibson was not wearing a safety belt.  I cannot agree.  The
record clearly shows that foreman McCann had actual knowledge that Gibson was not wearing
a belt.  First, the Secretary is correct in maintaining that the foreman's written
statement does prove the point.  In his statement, the foreman described the course
of events that led to Gibson's death.  He then described the physical circumstances
as follows:  "The elevator shaft was not covered over and Gibson wasn't wearing
a safety belt.  Some days he would wear the belt and other days he wouldn't . . .
." The statement's tenor, order of narration, and treatment of Gibson's failure to
wear the belt as a known, background fact--as notorious as the lack of a cover on the
elevator shaft--are inconsistent with any hypothesis that McCann learned of these facts
after Gibson fell.

Second, there is ample evidence that McCann was close enough to tell whether
Gibson was wearing his belt.  Safety belts are distinctive--particularly when tied
off--and one can tell from a distance whether an employee 13 working with one. [[3]] This
Commission has decided any number of cases in which distant observers could tell whether
an employee was working without a safety belt.[[4]]  Here, foreman McCann looked directly
at the employee, watched him work, and coordinated Gibson's dismantling activity with that
of the crane operator.  That McCann was close enough to tell whether Gibson was
wearing his belt is demonstrated by his written statement, which relates that Gibson
"had put chokers around the beam," "hooked it to the crane load,"
"had cut one end of the beam loose," and "moved the ladder over . . . to
cut the other end."  McCann was obviously observing Gibson working, and these
are not the words of a person too far away to tell whether Gibson was wearing a safety
belt.

In any event, there is sufficient evidence that McCann could have known of
the violation with the exercise of reasonable diligence. It may be true that the president
of the company did not fully appreciate Gibson's propensity to not wear a safety belt
until after the accident.  There is, however, ample evidence that the foreman knew of
Gibson's attitude and behavior.  The foreman's own written statement declares that
"[s]ome days [Gibson] would wear the belt and other days he wouldn't.  I told
him [at] different times to wear his belt and sometimes he would put it on and other times
he wouldn't."  Inasmuch as the foreman was working in close proximity to an
employee he knew had disdained the wearing of safety belts and knew that the employee was
working right next to an open elevator shaft, reasonable diligence required him to take a
look to see whether a safety belt was being worn.

Finally, an employer's duty to be reasonably diligent requires more than
occasional checks on employees by the president of a company.  When an employer
decides to protect his employees from fall hazards by relying on the wearing of safety
belts, his supervisory employees must understand that they are to insist upon their use,
by discipline if necessary.  A rule prescribed by upper management but left
unenforced by foreman and lower-level supervisors is in a sense worse than no rule at all.
  It conveys to employees the impression that OSHA standards are not to be taken
seriously and that the supervisors believe that the hazard to which the employee is
exposed does not truly warrant the use of protective equipment.  McCann's written
statement shows that he indulged the deceased employee in his desire to choose the time to
wear his belt.  That is not permitted by the Act.  See C . Kaufman,
Inc. , 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1299, 1977-78 CCH OSHD � 22,481, p.
27,100-27,101 (No. 14249, 1978).

I respectfully dissent.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected] ),
telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The Secretary represented to Judge Worcester that he would do so in
accordance with the view of former Commissioner Barnako that such evidence was necessary.
  The Secretary cited Commissioner Barnako's concurring opinion in Jensen Constr.
Co ., 79 OSAHRC 49/D3, 7 BNA OSHD 1477, 1979 CCH OSHD � 23,664 (No. 76-1538, 1979).

[[2]] The dissenting opinion relies on Sessler's general requirement that
safety belts be worn and the foreman's statement that a safety belt would have prevented
the fatality as indications that Sessler does not dispute the feasibility of belts.  
Mr. Sessler's testimony does not establish that safety belts necessarily would have been
feasible in all circumstances, nor did Mr. Sessler state that Mr. Gibson could have used a
safety belt during the particular operation he was performing at the time of his fall.

The foreman's statement that use of a safety belt would have prevented Mr.
Gibson's fall assumes but also does not establish that Mr. Gibson could have used a safety
belt in the circumstances.  The Secretary's burden is to show not only that a safety
belt would have been an effective means of employee protection if it were used but also to
show specifically how its use could have been implemented during the work operation in
question.  See Chevron Oil Co. , 83 OSAHRC 19/B2, 11 BNA OSHC 1329,
1341, 1983 CCH OSHD � 26,507, p. 33,731 (No. 10799, 1983)(Rowland, Chairman, dissenting),
petition for review filed , No. 83-4371 (5th Cir. June 17, 1983).

[[3]] See the illustrations in 2 Int'l Labor Org., Encyclopedia of
Occupational Safety and Health 1984-5 (3rd ed. 1983); Nat'l Safety Council, Accident
Prevention Manual for Industrial Operations 1185-1189 (6th ed. 1973).

[[4]] E.g ., Ted Wilkerson , Inc ., 81 OSAHRC 70/D8, 9 BNA OSHC
2012, 1981 CCH OSHD � 25,551 (No. 13390, 1981)(200 feet away); Morgan & Culpepper,
Inc. , 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD � 25,293 (No. 9850, 1981)(at
least 30 feet), aff'd , 676 F.2d 1065 (5th Cir. 1982).