Pace Construction Corp.

Plain-English summary

A Pace Construction employee fell 30 feet from an unguarded outrigger scaffold and suffered serious injuries at a Florida construction project. The Commission affirmed that Pace failed to require safety belts and used another scaffold with unsecured planking and incomplete guardrails. It accepted the ALJ's credibility findings that Pace's safety-belt rule was enforced inconsistently and often left to employee discretion. That evidence also defeated Pace's unpreventable-employee-misconduct defense and established constructive knowledge. The Commission reversed the ALJ and also affirmed a guardrail violation involving employees working on an unguarded fourth-floor balcony. It classified all three items as serious and assessed the proposed penalties totaling $1,080.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a); 29 C.F.R. § 1926.451(g)(4); 29 C.F.R. § 1926.451(g)(5); 29 C.F.R. § 1926.500(d)(1)
• Outcome: All scaffold and balcony items affirmed as serious violations; total penalty $1,080.
• Key point: A written fall-protection rule does not establish compliance or employee misconduct when supervisors leave safety-belt use to employee discretion and enforcement is ineffective.

Full text (OSHRC public release)

Docket No. 86-0758

SECRETARY OF LABOR,

Complainant,

v.

PACE CONSTRUCTION CORP.,

Respondent.

OSHR DOCKET NO. 86-0758

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

This case involves 30-foot fall hazards from scaffolds and a
balcony at the perimeter of a building under construction. The parties raise objections to
a decision of an administrative law judge concerning alleged violations of the
Occupational Safety and Health Act, 29 U.S.C. �� 651-78, relating to those hazards. The
judge affirmed one item of the Secretary's citation to Pace Construction Corp. and vacated
another item. For the reasons set forth below, we affirm both items, and assess the
proposed penalties, totaling $ 1,080.00.

Background

Pace was the general contractor for the construction of an
office and retail complex in Delray Beach, Florida. While doing carpentry work on the
project, Pace employee J.W. Stone fell 30 feet to the ground from an unguarded outrigger
scaffold outside the fourth floor of one of the buildings. As a result of this fall, he
suffered serious injuries.

An OSHA inspection followed. Item 1(a) of the resulting
citation alleged that Pace did not require employees to use safety belts on the scaffold
Stone fell from, in violation of 29 C.F.R. � 1926.28(a) [[1/]] That scaffold was on the
"southwest side, fourth level" of the building. Item 1 (b), as amended, alleged
that Pace failed to provide guardrails and planking for a different scaffold, located at
the southeast side of that level, in violation of 29 C.F.R. �� 1926.451(g)(4) and
(g)(5).[[2/]] Item 2 alleged the failure to guard a balcony on which two employees were
working, once again outside the fourth level, in violation of 29 C.F.R. � 1926.500(d)(1).
[[3/]] The judge affirmed Items 1(a) and 1(b) and vacated Item 2. For the reasons set
forth below, we affirm Items 1(a) and 1(b) as serious violations, and reverse the judge on
Item 2, thus affirming that item as a serious violation as well.

Item 1(a): Stone's scaffold

In order to prove a violation of the cited standard, �
1926.28(a) (n.1 supra), under current Commission precedent, the Secretary must show that:
(1) there was exposure to a hazardous condition, and (2) some other section in Part 1926
indicates a need for using personal protective equipment. L.E. Myers Co., 12 BNA OSHC
1609, 1614, 1986-87 CCH OSHD � 27,476, pp. 35,604-05 (No. 82-1137, 1986) , rev'd on other
grounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 484 U.S. 989, 108 S.Ct. 479 (1987)
[[4/]] The aforementioned precedent was in effect when this case was tried. The Secretary
also must prove that (3) the employer failed to require the use of the equipment. Id.

There is no dispute that the first element of the alleged
violation was proven. The open sides of the outrigger scaffold from which Stone was
working when he fell were unguarded, its three planks were not secured, and he wore no
safety belt. As to the second element, 29 C.F.R. � 1926.105(a) indicates the need for
safety belts where, as here, the workplace is more than 25 feet above the ground. L. E.
Myers, supra. The evidence demonstrates that the second element also was established.

We further find that the Secretary proved the third element,
because the evidence supports the judge's conclusion that Pace did not adequately enforce
a safety belt requirement on the worksite. It is true that Pace had a written safety belt
rule. [[5/]] In addition, Pace required employees to read and sign a copy of its safety
orientation booklet--which included the safety belt rule--before they began work.
Furthermore, safety belts had been discussed at certain of Pace's safety meetings, at the
site, before the accident.

However, the Secretary presented sufficient evidence which demonstrated that Pace's safety
belt rule was not adequately enforced on the worksite, especially in light of the many
violations found by its superintendent on his walkarounds. Cf., e.g., H. E. Wiese, Inc.,
10 BNA OSHC 1499, 1505; 1982 CCH OSHD � 25,985, p. 32,614 (No. 78-204, 1982) (explaining
necessary elements of safety rule enforcement, in analyzing employer's defense of
unpreventable employee misconduct. There was abundant testimony that the safety belt rule
was not enforced consistently by Pace's foremen, but rather the decision as to whether to
use the safety belts was left largely to employee discretion. Pace was therefore not in
compliance with the standard's mandate, which expressly made it "responsible for
requiring the wearing of appropriate personal protective equipment in all operations"
covered by the standard. The decision whether to comply with company safety rules which
reflect OSHA requirements cannot be left to the employee's discretion. See, e.g., American
Bechtel, Inc., 6 BNA OSHC 1246, 1248, 1977-78 CCH OSHD � 22,466, p. 27,079 (No. 11340,
1977).

Although the testimony that compliance was not routinely
enforced was disputed, the judge resolved the conflicts in favor of the Secretary's
witnesses.[[6/]] The judge concluded that Pace's disciplinary program "consisted
primarily of verbal reprimands administered haphazardly and without effective
results." He further found that Pace's employees "routinely violated the
company's...rule prior to the accident," and he rejected Pace's defense that the
noncompliance resulted from unpreventable employee misconduct.

The Secretary's witnesses, whose testimony the judge credited,
were Fraser, a Pace carpenter at the time of the accident, and Barkalow, the foreman over
the carpenters. Fraser testified that Stone was not the only employee on the scaffold
without a safety belt at the approximate time of the accident. He added that he saw
"probably five" employees working without safety belts on another inadequately
guarded scaffold on the morning of the accident. (That scaffold is the subject of Item
1(b).)

Fraser further testified that, before the accident, he did not
understand when he was supposed to wear a belt. He added that "[t]here wasn't [sic]
too many people wearing safety belts" before the accident and that only two safety
belts were provided for the crews until after the accident. In addition, Fraser testified
that, to his knowledge, no one was reprimanded before the accident for failing to use a
safety belt. Barkalow testified that he did not watch the carpenters who erected
scaffolds, to see if they wore safety belts: "the belt was there; if they didn't
[wear it], that was up to them."

In addition to Fraser and Barkalow's statements, there was
testimony by some of Pace's own witnesses that supports the judge's findings. One of
Pace's lead laborers testified that employees who had "nerve" would not wear
safety belts while working outside the building perimeter.[[7/]] Pace's job
superintendent, James Muziak, testified that he had issued verbal reprimands to every
employee on the job about failure to wear safety belts.[[8/]] The judge concluded:

The fact that these oral reprimands were required on such a
wide-ranging scale shows respondent's awareness of the problem and is a good indication
that the ... [safety] belt rule was not effectively enforced or taken seriously by
employees ...

The evidence indicates that essentially all of the supervisory
reprimands were issued by Muziak, who typically was away from the work areas most of the
day.

We accept the judge's assessment of the witnesses' credibility, and his conclusions
regarding Pace's enforcement of its safety belt rule. The Commission has previously stated
the principles governing review of a judge's credibility findings:

Normally, we will accept the administrative law judge's
evaluation of the credibility of witnesses because it is the judge who has lived with the
case, heard the witnesses and observed their demeanor... However, the judge should
identify the conflicting testimony and explain the reasons for failing to credit a
witness's testimony or for crediting the testimony of one witness over that of another.

Inland Steel Co., 12 BNA OSHC 1968, 1978, 1986-87 CCH OSHD �
27,647, p. 36,005 (No. 79-3286, 1986) (citations omitted) . Here, the judge identified the
conflicting testimony and explained that he credited the Secretary's witnesses over
Pace's, where their testimony conflicted, based on his observations of their
"demeanor and candor" as they testified. These are matters that the hearing
judge is in a unique position to assess. As discussed above, the credibility findings here
are corroborated by testimony by some of Pace's own witnesses.

Pace argues that the judge's credibility findings are contrary
to the overwhelming weight of the evidence (basically, the testimony of its current
employees). In particular, Pace contends that Fraser's testimony is inconsistent with that
of other witnesses in many respects, and therefore is not credible. However, the testimony
Pace relies on does not actually contradict Fraser's.

In this regard, Pace claims that Fraser's testimony is inconsistent with the judge's
finding that superintendent Muziak had issued verbal reprimands to everyone on the job.
However, Fraser merely testified that he did not know of anyone being reprimanded prior to
the accident for not wearing a safety belt. Muziak did not state that his verbal
reprimands were all issued before the accident. Additionally, no witness claimed that
Fraser knew a verbal reprimand before the accident.

Pace also attacks Fraser's testimony regarding employees
working without safety belts on a particular scaffold -- which is the subject of Item 1(b)
-- on the morning of the accident. Pace points out that lead carpenter Rittnour testified
that he was out on that scaffold setting it up that morning and "I was tied off every
day I went out there." However, Fraser did not testify that Rittnour was one of the
employees he saw on that scaffold. He merely testified that Rittnour later helped move
that scaffolding to another fourth floor location for patching work.

In addition, Pace criticizes Fraser's testimony that, before
the accident, he did not understand when he was supposed to wear safety belts on
scaffolds. Pace notes Fraser's testimony that he was told in safety meetings to use safety
belts while engaged in scaffold work. Fraser acknowledged reading and signing Pace's
safety orientation booklet, which contained the safety belt rule, when he was first hired
in 1985. However, the relevant questions by Pace's counsel did not elicit what instruction
Fraser got before the accident, as opposed to after it. Fraser testified that only after
the accident did everyone wear safety belts when working within six feet of the building's
edge.

We also reject Pace's argument that Barkalow's testimony
supports its position. Pace relies on Barkalow's testimony that employees were instructed
in safety meetings to use a safety belt when erecting guardrails on scaffolds. Barkalow
further testified that he carried safety belts to the employees every morning and told
them, "Here they are, boys." However, that testimony does not show that safety
belt use actually was enforced on the worksite. Nor does it contradict the testimony
relied on by the judge. Thus, we accept the judge's credibility findings to the effect
that Pace's safety belt rule was not enforced adequately.

Pace next contends that its safety program was adequate under
Inland Steel. supra. That argument is unpersuasive. In Inland Steel, the Commission found
that the Secretary had failed to prove that Inland's safety rules were not properly
enforced. The basis for the Commission's decision, however, was its acceptance of the
judge's credibility findings, which resolved the conflicts in the testimony in favor of
the employer's witnesses. Those witnesses had testified to the effect that Inland Steel's
work rules were enforced consistently. 12 BNA OSHC at 1979-84, 1986-87 CCH OSHD at pp.
36,006-11. Here, by contrast, we have accepted the judge's credibility findings in favor
of those witnesses who testified to the effect that compliance with Pace's safety rule was
not adequately enforced, but rather left largely to employee discretion. Those credibility
findings dispose of the adequacy of enforcement issue.

Pace further argues that the judge erred in rejecting its
defense of unpreventable employee misconduct. Pace asserts that its defense is supported
by a decision of the Eleventh Circuit in Daniel International Corp. v. OSHRC, 683 F.2d 361
(11th Cir. 1982) It is not. In Daniel International, the court vacated a citation issued
to a construction firm on the ground that the employees,' failure to were safety belts was
unpreventable misconduct. However, unlike here, the employer and its foreman there
consistently enforced the safety belt requirement, making frequent daily checks to be
certain they were being used. The court noted that the foreman "did everything except
lead the crew by the hand." Id. at 365. The rules called for termination of an
employee who failed to wear a safety belt, and the employer proved that its rule had been
enforced. At Pace's worksite, the rule was not adequately enforced by its foremen.

Pace argues that the Secretary failed to show that, with the
exercise of reasonable diligence, Pace could have known that Stone was exposed to a fall,
because that exposure was of short duration. However, the violation is not confined to
Stone's situation. The violation is Pace's failure, through its foremen, to require the
wearing of safety belts, where needed, over a long period of time. Its superintendent knew
or reasonably could have known of that failure, because he had to reprimand each employee
for noncompliance with Pace's safety belt rule during the course of the job.

Clearly, Pace knew or reasonably could have known of the violation. See 29 U.S.C. & �
666(k).

Thus, all the elements of a violation a have been established
here: the standard applied to the conditions, its terms were violated, Pace employees had
access to the hazards, and Pace had the requisite knowledge of the violation. See, e.g.,
Trumid Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD � 29,078, p. 38,859 (No.
86-1139, 1990). The Secretary has prevailed under the Commission's statement of her burden
of proof of a � 1926.28(a) violation. See L. E. Myers, supra. In addition, based on the
undisputed evidence we find that Pace recognized safety belts to be a feasible means of
abatement, and that a significant risk of harm existed.[[9/]] Item 1(a) is affirmed.

Item 1(b):Southeast scaffold

As noted above, Fraser testified that a second outrigger
scaffold was used the same morning that Stone fell. He testified that this scaffold, as
initially erected that morning on the southeast side, fourth level, had a handrail, but no
midrail or toeboard, and that Pace's employees working on it had not worn safety belts.
According to Fraser's testimony, the scaffold later was moved, and Pace employees again
worked from it without safety belts, although its planks were not secured and he believed
it had no guardrail. One of the cited standards, � 1926. 451(g)(4) (n. 2 supra), requires
that planking on outrigger scaffolds "be secured to the beams." The other cited
standard, � 1926.451(g)(5) (n.2 supra), requires that outrigger scaffolds have midrails,
toeboards, and a standard handrail. The OSHA inspector testified that he learned about the
lack of proper guarding on the southeast scaffold from conversations with employees.

As to Pace's knowledge of the conditions, Fraser testified that
normally Paces scaffolds had a guardrail on the exterior side, but none on the
ends.[[10/]] One of Pace's lead carpenters testified that "just occasionally" he
saw employees erect or dismantle scaffolding in an improper manner, and that he never saw
employees reprimanded for doing so. [[11/]] He further testified that he observed
employees engaging in this improper practice on the day of the accident. Superintendent
Muziak testified at one point that he had never seen Pace scaffolds in use that were not
properly erected. However, he then acknowledged that he had seen ones that lacked a few
planks, and that he told the employees to correct the situation. Pace presented no direct
testimony as to the condition of the cited scaffold [[12/]]

Thus, the evidence establishes that � 1926.451(g)(5) applied
to the scaffold, that its terms were violated, and that employees had access to the
hazards. The evidence also indicates that, with the exercise of reasonable diligence, Pace
could have known of the noncompliance.

Pace's sole defense to this charge is its claim that its
supervisors communicated and enforced work rules requiring proper scaffold guarding, and
that any noncompliance was therefore the result of unpreventable employee misconduct. To
establish that affirmative defense, the employer "must demonstrate that it took all
feasible steps to prevent the [violation], and that the actions of its employees were a
departure from a uniformly and effectively communicated and enforced work rule of which
departure [the employer] had neither actual nor constructive knowledge." Daniel
International, 683 F.2d at 363.

In support of its defense, Pace points to Muziak's testimony
that he instructed several carpenters on proper scaffold guarding, and ordered that they
alone were to be in charge of erecting scaffolds. However, the evidence does not indicate
that Pace's scaffold guarding rules were communicated to employees generally, or that its
foremen enforced the rules in practice.

Although Muziak testified as to his efforts to have the
guardrail deficiencies he saw corrected, his individual enforcement efforts were
apparently ineffective, as demonstrated by the numerous unguarded structures on which Pace
employees worked without fall protection during the two days involved here. As discussed
above, in addition to the southeast scaffold, Stone's scaffold was unguarded, and there
was no guarding on the balcony on the same level the next day. The inspector testified
that on the day of Stone's fall, a third scaffold, on the same level, also lacked
guardrails on its ends and part of its exterior side.

The testimony discussed above, including the testimony from witnesses Pace relies on,
indicates that they knew scaffolds were not consistently erected properly. Thus, the
evidence shows that Pace had reason to know that the southeast scaffold, like Stone's
scaffold, might not have guardrails or proper planking. It is clear that Pace has failed
to show that any work rule on scaffold guarding was effectively communicated or enforced.
We therefore conclude that, with the exercise of reasonable diligence, Pace could have
known of the violative conditions. For the reasons cited above, Item 1(b) is affirmed.

Item 2:  Balcony on fourth level

The Secretary alleged a violation of �1926.500(d)(1) (n. 3
supra), in that "[o]n or about April 15, 1986, employees working from unguarded
platform at southeast area were exposed to fall hazard of 30 feet [because] guardrails or
safety belts were not in use." The major issue presented here is whether the
standard, which requires guardrails only on a "floor or platform," applies to
the cited balcony.

The inspector testified that he observed two employees on a
balcony when he arrived at the jobsite on April 15. The employees were within about two
feet of the unguarded edge, and were not wearing safety belts. They were grinding concrete
at a depression where a patio door was to be installed, between the balcony and the main
floor. This work would take about an hour.

The balcony was five feet wide and 20 feet long. It extended
out from doorways at the building line. The day of the inspection (April 15) was the first
day that the grinding had been done on any balcony. Similar grinding was done on at least
two other balconies after April 15. However, the inspector did not know if work was
performed regularly on the balconies. Pace states in its brief that the building was to
have only four stories, and that statement is not disputed.

The parties and the judge focused on whether the balcony was a
"platform." The judge found that it was not, and vacated the item, essentially
because he found that the balcony was not built as a "working space." The word
"platform" is defined in �1926.502(e) as:

A working space for persons, elevated above the surrounding
floor or ground, such as a balcony or platform for the operation of machinery and
equipment.

The judge's view has some support in the extensive case law on the meaning of the term.
For example, the Second Circuit has held

the term applies only to:

elevated working spaces . . . which are designed primarily for
the operation of machinery and equipment and which require employee presence on a
predictable and regular basis; and not to spaces where only occasional maintenance or
repair work is performed.

General Electric Co. v. OSHRC, 583 F.2d 61, 65 (2d Cir. 1978)
(interpreting comparable general industry requirements for platforms at 29 C.F.R. �
1910.23(c)(1)). However, the courts are in some disagreement as to what a
"platform" is. E.g., Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir.
1981) (court declined to follow General Electric, stating that "platform"
includes "those elevated surfaces where employees work and which in the reasonable
judgment of the Secretary need protection from injury by guardrails").

We need not resolve whether this balcony served as a
"platform" as defined in the standard, because the standard applies also to a
"floor," and the balcony fits the standard definition of a "floor."
For example, Webster's Third New International Dictionary provides a number of meanings
for "floor," including the following:

the surface or the platform of a structure on

which to walk, work, or travel (the [floor] of a bridge) (the [floor] of a prize ring).

Furthermore, the Random House Unabridged Dictionary defines
"floor," among other things, as:

A Level, supporting surface in any structure:

the floor of a bridge; the elevator floor.

...a platform or prepared level area for a particular use: a threshing floor.

(Emphasis added). The balcony here was directly connected to
the fourth level, was approximately level with it, and was designed to be stepped onto
directly from the interior of the fourth level. It was a "floor" as commonly
defined, whether or not it was designed as a work "platform." Cf., Donovan v.
Williams Enterprises, Inc., 744 F.2d 170, 176-77 (D.C. Cir. 1984) (walkway was not
platform as alleged, but court amended pleadings sua sponte to conform to evidence that it
was unguarded runway in violation of different standard).

Thus, the cited section applied to the balcony. Further, since
there were no guardrails, Pace did not comply with the terms of the section. There is no
dispute that employees were exposed to the fall hazards covered by the section (they stood
as close as two feet from the edge, with no fall protection). In addition, the Secretary
showed the requisite knowledge on the part of Pace. The employees were in plain sight when
the inspector spotted them upon his arrival. Tile employees had been assigned to work on
the area between the main floor and the balcony, and the evidence did not indicate that
they were told not to work from the balcony. Again, the problem of failure to enforce fall
protection requirements was a longstanding problem. Thus, with the exercise of reasonable
diligence, Pace could have known of the violative conditions. Pace's defense of
unpreventable employee misconduct fails for the same reason it was rejected under Items
1(a) and (b). Item 2 is affirmed.

Classification of violations; penalties

The violations were clearly serious, as alleged, because
30-foot fall hazards were involved. See 29 U.S.C. � 666(k). As to appropriate penalties,
the Secretary proposed a $630 penalty for Items 1(a) and 1(b) combined, and the judge
assessed that amount.

We affirm that assessment.The undisputed testimony of the
inspector was that Pace had more than 100 employees. Pace's substantial safety program
showed good faith, although its enforcement of its work rules on this worksite fell well
short of meeting its obligation to comply with the applicable OSHA standards. Pace had no
history of violations in the area, but the gravity of the violations was severe, and
numerous employees were exposed on the day of Stone's accident alone. As to Item 2, the
Secretary proposed a $450 penalty. We affirm that amount, for the same reasons given
above. See 29 U.S.C. � 666(j).

Accordingly, Items 1(a), 1(b), and 2 of the citation are
affirmed as serious violations, and penalties totaling $1,080.00 are assessed.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

April 12, 1991

SECRETARY OF LABOR,

Complainant ,

v.

PACE CONSTRUCTION CORPORATION,

Respondent.

OSHRC Docket No. 86-0758

APPEARANCES: Laurie E. Rucoba, Esquire, Office of the
Solicitor, U. S. Department of Labor, Fort Lauderdale, Florida, on behalf of complainant

R. Daniel Douglass, Esquire, Atlanta, Georgia, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge: At the time in question respondent, Pace
Construction Corporation, was the general contractor at the Atlantic Plaza Project, an
office and retail complex in Delray Beach, Florida. Respondent's employees were engaged in
performing certain concrete forming work and carpentry in connection with this project,
which included the construction of a four-story building. Other aspects of the operation
were conducted by subcontractors under respondent's general supervision.

On April 14, 1986, a Pace employee, John Stone, fell from an
outrigger scaffold and was seriously injured. This accident was duly reported to the
Occupational Safety and Health Administration, and an inspection precipitated the issuance
of a serious citation charging respondent with violations of 29 U.S.C. � 651, et seq.,
and the regulations issued thereunder. The citation was contested by respondent, and the
matter was heard in Fort Lauderdale, Florida, on September 23, 1986.

At issue in this case is whether respondent violated the
following regulations as alleged in the Secretary's citation and complaint:

1a

29 CFR 1926.28(a): Appropriate personal protective equipment was not worn by employees in
all operations where there was exposure to hazardous conditions:

(a) On or about April 14, 1986, employee working from 30 feet
high outrigger platform at the southwest 4th level, was not wearing safety belt attached
to an independent safety line and standard railings were not installed on platform.

1b

29 CFR 1926.451(a)(4)(amended to include 1926.451(g)(4) and (g)(5)):[[1/]] Standard
guardrails and toeboards were not installed on all open sides and ends of platforms more
than 10 feet above the ground or floor:

(a) On or about April 14, 1986, employees, working on outrigger scaffolds which were not
equipped with standard railings, were exposed to fall hazard of 30 feet while working on
east end south side of 4th level.

2

29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or more above adjacent floor
or ground level, were not guarded by a standard railing or the equivalent on all open
sides:

(a) On or about April 15, 1986, employees working from
unguarded platform at southwest area were exposed to fall hazard of 30 feet, guardrails or
safety belts were not in use.

Items 1a and 1b of the citation relate to circumstances
existing on the day of the accident (April 14) with respect to the actions of John Stone
and other carpenters working from outrigger scaffolds. Item 2 relates to an incident
observed by Compliance Officer Joseph DeMartino on the day following the accident (April
15) involving certain employees allegedly working on an unguarded platform without fall
protection. These two occurrences will be separately discussed.

Serious Citation No. 1

Items 1a and 1b

The circumstances in existence at the time of the accident are
not in dispute. On the morning of April 14, Stone was using an outrigger scaffold on the
fourth floor of the building in connection with the placement of boards or
"stripping" along the bottom of tresses "so the joints wouldn't curl"
(Tr. 17, 39). The job required a minimum of work and was not expected to take more than a
few minutes to complete (Tr. 40). Stone and two other employees placed some planks on the
scaffold in preparation for the work but did not secure the planks nor did they erect
guardrails or toeboards (Tr. 51). Stone went on the scaffold without a safety belt,
stepped on a loose plank, and fell to the ground below sustaining serious injury.[[2/]]
Photographs taken by the compliance officer following the accident depict the scaffolding
in question and clearly show the absence of guardrails and toeboards (Exs. C-2, C-3). The
Secretary's evidence fully supports the basic elements necessary to establish a change
under the cited standards.

Respondent, at the hearing and in its brief, does not call into
question the facts just outlined but seeks to prevail on the basis that Stone's actions
were an isolated incident of employee misconduct. To establish this defense, an employer
must show that the action of its employee was a departure from a work rule that was
uniformly and effectively communicated and enforced. Frank Swidzinski Co., 78 OSAHRC
28/B5, 9 BNA OSHC 1230, 1981 CCH OSHD � 25,129 (No. 76-4627, 1981); Merritt Electric Co.,
1981 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD � 25,556 (No. 77-3773, 1981); Wander
Iron Works, Inc., 1980 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD � 24,457 (No.
76-3105, 1980); Ted Wilkerson Inc., 1981 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD �
25,551 (No. 13390, 1981); H. B. Zachary, 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD �
24,196 (No. 76-1393, 1980), aff 'd, 638 F.2d 812 (5th Cir. 1981).

Respondent had a work rule requiring the use of safety belts when an employee was
"exposed to a fall of four (4) feet or more" (Ex. R-11, Rule 14), and the
existence of this rule is conceded by the Secretary (Secretary's Brief, page 8).
Respondent conducted regular safety meetings at this project, as documented in Exhibits
R-3 through R-8, although this documentation does not indicate that the wearing of safety
belts was specifically discussed. It further appears respondent had safety belts available
for use at the project. The crucial question for resolution is whether respondent
effectively communicated and enforced it safety belt work rule, and on this point the
evidence is conflicting.

The Secretary called two witnesses, Richard Barkalow,
respondent's carpenter foreman, and John Fraser, a journeyman carpenter to support his
position. The testimony of these witnesses tends to show that the wearing of safety belts
was left to the discretion of individual employees and was not rigidly enforced. Barkalow,
a member of management, conceded that he did not wear a safety belt on the job (Tr. 23)
and testified he "didn't watch" employees and that wearing belts was "up to
them" Tr. 21-22). Fraser, who worked with Stone, testified "there wasn't too
many people wearing" safety belts before the accident (Tr. 52) and that employees
were not reprimanded for failure to wear the belts (Tr. 52-53).

Respondent's witnesses generally supported a position that
employees were told to wear belts and were verbally reprimanded when infractions were
observed by supervisory personnel. James Muziak, respondent's job superintendent,
testified that he regularly instructed and repeatedly reminded employees to use safety
belts and tie off whenever they were exposed to fall hazards (Tr. 215). His testimony was
supported by James L. Rittnour (Tr. 160, 165) and Jose J. Motez (Tr. 195-201). However,
Willie Thomas, respondent's lead laborer, testified he did not always wear a belt (Tr.
188) and that "people take a chance" if they "got nerve" (Tr. 186).

To resolve this conflicting testimony, the undersigned has
relied in large measure upon his observations of the witnesses during the course of their
testimony, including their demeanor and candor when responding to critical questions. In
this light the Secretary's witnesses were more credible than those offered by respondent,
and it is concluded the decision to wear safety belts was left largely to employee
discretion.

In attempting to resolve the effectiveness of respondent's
safety policies, the company's "Disciplinary Action Program," introduced as
Respondent's Exhibit 1, has also been considered. This program sets up procedures to
assure that respondent's safety policies are carried out and provides for layoffs and
termination when appropriate. The record reflects only two written reprimands were issued
pursuant to this program at this jobsite. On April 4, 1986, an employee was cited for not
wearing a shirt (Ex. R-9) and on April 21, 1986 (after the accident), an employee was
reprimanded for failure to tie off (Ex. R-10). It appears in the record that Muziak did
not implement this program until March of 1986 due to the fact that company forms for use
in the program were not provided until then (Tr. 225-226). Prior to the accident,
respondent's program consisted primarily of verbal reprimands administered haphazardly and
without effective results.

Respondent's claim that it lacked knowledge of its employees'
failure to wear safety belts has also been considered. It is abundantly clear in this
record that respondent's supervisors were well aware of the necessity for wearing belts to
protect against fall hazards at this project. Indeed, James Muziak, the job
superintendent, admitted he issued verbal reprimands regarding belts to everyone on the
job at least once (Tr. 228). The fact that these oral reprimands were required on such a
wide-ranging scale shows respondent's awareness of the problem and is a good indication
that the seat belt rule was not effectively enforced or taken seriously by employees. See
A. C. Dellovade, 13 BNA OSHC 1027, (No. 83-1189, 1984), issued on January 12, 1987.

In summary, the record confirms that respondent's employees
routinely violated the company's seat belt rule prior to the accident and that the events
occurring on April 14, which resulted in serious injury to employee Stone, did not
constitute an isolated incident of employee misconduct.

Serious Citation No. 1

Item 2

This citation charges respondent with a violation of 29 C.F.R.
�1926.500(d)(1) [[3/]] for failure to provide guardrails around a balcony on the
southwest side of the building or, in the alternative, that employees working on this
balcony were not wearing safety belts to protect against falls.

The charge results from an observation made by the compliance
officer on the second day of his inspection (April 15). As he approached the work site,
the compliance officer observed two employees working without fall protection on an
unguarded platform at the fourth floor level of the building under construction. He
proceeded to the job trailer and advised superintendent Muziak of this situation (Tr.
72-73), and Muziak contacted Barkalow by radio to inquire about the circumstances.
According to the compliance officer, Barkalow reported to Muziak that the involved
employees were employed by Pace and were performing grinding work on the balcony without
wearing safety belts (Tr. 73-74). This incident was confirmed in the testimony of Muziak
(Tr. 219-221) and also by Willie Thomas, who was at the work site and observed the
employees working without belts at the fourth floor level (Tr. 187-188).

Respondent attacks this charge on the grounds that the balcony in question was not a
"platform" as contemplated by the standard and also that respondent lacked
actual or constructive knowledge that the employees performing this work were not wearing
safety belts.

There is merit to respondent's first argument. The term
"platform" as used in the cited standard is defined at 29 C.F.R. � 1926.502(e)
follows:

A working space for persons, elevated above the surrounding floor or ground, such as a
balcony or platform for the operation of machinery or equipment.

It is clear that the balcony in question was never intended to be a work platform which
would require the installation of standard guardrails. The grinding work was done at the
interior edge of the building and was performed either from within the building or at a
location on the balcony well back from the open edge (Tr. 184-185, 219-220). This work was
a one-time operation and required less than an hour to complete (Tr. 192-193).

Commission decisions indicate that applicability of the
standard depends on the nature of the structure, the frequency and regularity of use by
employees, and whether designed and intended to function as a working surface. Clement
Food Company, 11 BNA OSHC 2120, 2126 (No. 80-607, 1984); Globe Industries, Inc., 82 OSAHRC
24/D4, 10 BNA OSHC 1596, 1982 CCH OSHD � 26,048 (No. 77-4313, 1982). In Rexco Industries,
Inc., 80 OSAHRC, 32/A2, 8 BNA OSHC 1227, 1980 CCH OSHD � 24,376 (No. 15350, 1980??), the
Commission vacated a citation under � 1926.500 (d)(1) based on the lack of evidence that
any employees were assigned to work on the cited fourth floor surface or that the employer
knew or should have known that employees would go onto the surface to perform the work.
Similarly, the evidence in the present case shows that the balcony in question was not
used or intended to be used as a platform from which to perform work. The employees were
doing grinding work to the balcony itself and were not expected to go onto the balcony to
perform the work. Under these circumstances the requirement to install standard guardrails
is inappropriate, and this citation will be vacated insofar as it requires the
installation of guardrails and toeboards.

In the absence of guardrails, however, employees should have
been protected by safety belts, and respondent's argument that it lacked constructive or
actual knowledge that employees were performing this work without wearing safety belts is
rejected for the reasons previously recited in regard to Citation No. 1. The fact that
this incident occurred the day following the accident serves only to bolster a conclusion
that respondent's safety belt rule was routinely disregarded by respondent's employees and
supervisors. Since penalties have already been assessed for this infraction, no further
penalties will be levied.

FINDINGS OF FACT

1. The respondent, Pace Construction Corporation, is a general
   contractor with its home office in Atlanta, Georgia. During the period in question,
   respondent was engaged in the construction of an office and retail complex in Delray
   Beach, Florida.

2. Respondent is a corporation which has employees who handle
   or otherwise work on goods received in or produced for commerce.

3. On the morning of April 14, 1986, John Stone, an employee of respondent, was using an
   outrigger scaffold on the fourth floor level of a building under construction. The
   scaffold in question had been hastily rigged. The planks in use on the scaffold were not
   secured to the beams nor had guardrails and toeboards been installed around the perimeter.
   While working on the scaffold without a safety belt, Stone stepped on a loose plank and
   fell to the ground below sustaining serious injury.

4. Respondent had a work rule requiring the use of safety belts
   when an employee was exposed to a fall hazard. This work rule was not effectively
   communicated to employees nor was it enforced by respondent's supervisory personnel. The
   wearing of safety belts was left largely to the discretion of individual employees, and
   the safety belt rule was frequently violated by respondent's employees.

5. On April 15, 1986, employees of respondent were doing some
   grinding work on a balcony at the fourth floor level of a building under construction. The
   grinding work was done at the interior edge of the building and was performed either from
   within the building or at a location on the balcony well back from the open edge. The
   balcony was not used as a work platform.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in a business affecting
   commerce and is subject to the jurisdiction of the Occupational Safety and Health Review
   Commission.

2. Respondent has violated the provisions of 29 C.F.R. � 1926.28 (a) by permitting
   employees to work without safety belts to protect them from hazardous falls.

3. Respondent has violated the provisions of 29 C.F.R. �
   1926.451 (g)(4) and (g)(5) by permitting employees to work on outrigger scaffolds which
   were not provided with guardrails and toeboards and where planking was unsecured.

4. Respondent did not violate the provisions of 29 C.F.R. �
   1926.500 (d)(1).

ORDER It is hereby ORDERED:

1. Serious Citation No. 1, items 1a and 1b, is affirmed with a
   penalty of $630 assessed.

2. Serious Citation No. 1, item 2, is vacated.

EDWIN G. SALYERS

Judge

Date: March 23, 1987

FOOTNOTES:

[[1/]] That section provides:

�1926.28 Personal protective equipment

(a) The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous conditions
or where this part indicates the need for using such equipment to reduce the hazards to
the employees.

[[2/]] Those sections provide:

�1926.451 Scaffolding.

(g) Outrigger scaffolds.

(4) Planking shall be laid tight and shall extend to within 3 inches of the building wall.
Planking shall be secured to the beams.

(5) Guardrails approximately 42 inches high, with a midrail ... and toeboards, shall be
installed at all open sides and ends on all scaffolds more than 10 feet above the ground
or floor. ...

[[3/]] � 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or
platform 6 feet or more above adjacent floor or ground level shall be guarded by a
standard railing, or the equivalent,.... on all open sides, except where there is entrance
to a ramp, stairway, or fixed ladder. The railing shall be provided with a. standard
toeboard wherever, beneath the open sides, persons can pass, . . . .

[[4/]] The current language of the standard (n.1 supra)
indicates that the Secretary need only prove one of those two elements. (It uses the
disjunctive word "or" between them.) The basis for the Commission's holding in
L. E. Myers that both elements must be proved was that: (1) the standard as originally
drafted required compliance only where both elements existed, and (2) the current version,
using the disjunctive "or," was an invalid change, because it was made without
public notice and comment. 12 BNA OSHC at 1611-14, 1986-87 CCH OSHD at 35,601-04.

[[5/]] The rule stated:

Any employees exposed to a fall of four (4) feet or more must be tied off with safety belt
and lanyard where no other type of fall protection is provided.

The Secretary does not dispute that this rule would be adequate, if followed.

[[6/]] The judge stated:

To resolve this conflicting testimony, the undersigned has relied in large measure upon
his observations of the witnesses during the course of their testimony, including their
demeanor and candor when responding to critical questions. In this light the Secretary's
witnesses were more credible than those offered by respondent, and it is concluded the
decision to wear safety belts was left largely to employee discretion.

[[7/]] Pace argues that this same witness gave contradictory
testimony when he stated that his own failure to wear a safety belt on the unguarded
balcony at issue in Item 2 was an "isolated incident." However, the employee was
referring only to incidents on balconies, not scaffolds. It is undisputed that the balcony
at issue in Item 2 was the first balcony worked on by employees. The employee also
testified that immediately after Stone's fall, Pace enforced the safety belt rule more
intensively.

[[8/]] Pace argues that Muziak did not so testify, but its
quotation from his testimony is selective and transposes certain testimony. The transcript
supports the judge's reading of Muziak's testimony, and we adopt that reading. Pace
asserts that at one point in his decision, the judge made a finding that contradicts that
reading of Muziak's testimony. However, the judge found only that no written reprimands
had been issued for safety belt violations. That statement does not contradict his other
findings.

[[9/]]Pace has not raised the issue of whether the outrigger
scaffold guarding requirements are more specifically applicable to the cited conditions
than �1926.28(a). Thus, we need not resolve that issue.

[[10/]] There was testimony that toeboards were never used
before Stone's accident. Pace argues that the failure to use toeboards was de minimis
because no employees worked below the scaffolds, so there existed no hazards as to them
from falling materials. We need not determine whether Pace is correct on this point, in
light of the evidence establishing other deficiencies in the guarding of the scaffold that
clearly presented serious hazards to employees.

[[11/]] Pace relies on foreman Barkalow's testimony that he
never saw scaffolding in use that was not guarded or properly planked. However, Barkalow
was not directly responsible for scaffold erection, and he did not testify that he checked
on compliance with scaffold guarding requirements. The evidence showed that he did not
check on compliance with Pace's safety belt rule. We therefore conclude that the testimony
quoted above, by the lead carpenter responsible for scaffold erection, was based on closer
observation, so far as this record shows.

[[12/]] Pace argues that Fraser's testimony is not credible
because he did not perform scaffolding work and did not remember whether safety belt's
were carried out to the jobsite for employee use each day before the accident. We do not
think those factors negate the value of his testimony. The judge credited it over that of
Pace's witnesses on the issue of safety belts. We find no reason not to credit Fraser's
testimony regarding the condition of the southeast scaffold on the morning of the
accident.

[[1/]] The original citation alleged only a violation of 29
C.F.R. �1926.451(a)(4), which requires guardrails and toeboards on scaffold platforms. In
his complaint, the Secretary amended the citation by alleging additional violations of 29
C.F.R. � 1926.451(g)(4) and (g)(5), which requires planking be "laid tight" and
"secured to the beams" on "outrigger scaffolds," as well as guardrails
and toeboards. The evidence adduced at the hearing clearly reflects the "outrigger
scaffold" regulations are more appropriate. While respondent initially opposed the
amendment in its answer, no further objections were raised at the hearing or in
respondent's brief nor is there any indication that the proposed amendment surprised or
hindered respondent in its defense. Accordingly, the Secretary's amendment is allowed. See
H. B. Zachary Co. v. OSHRC, 638 F.2d 812 at 816.

[[2/]] As a result of the accident, Stone suffered from head
trauma and a memory deficit which prevented him from appearing as a witness in the case
(See Ex. C-1).

[[3/]] Section 1926.500(d)(1) provides:

(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level
shall be guarded by a standard railing, or the equivalent, as specified in paragraph
(f)(1) of this section, on all open sides, except where there is entrance to a ramp,
stairway, or fixed ladder. The railing shall be provided with a standard toeboard
wherever, beneath the open sides, persons can pass, or there is moving machinery, or there
is equipment with which falling materials could create a hazard.