CECO Corp.

Plain-English summary

A CECO laborer suffered a fatal 18-foot fall from an improvised stairwell scaffold made from a narrow aluminum plank, a straight ladder, and closed stepladders. The Commission admitted evidence that the judge had excluded, but found that the employee's prior statements did not undermine his testimony about the foreman's instructions and knowledge. It held that CECO had actual or constructive knowledge because the foreman knew the equipment being used or failed to give adequate instructions and inspect the work. The employee-misconduct defense failed because fall-protection equipment had been removed from the site on CECO's last workday and the company did not ensure that its rules could still be followed. The serious ladder item and repeat scaffold item were affirmed with penalties of $3,000 and $20,000, totaling $23,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(4) and 1926.1053(b)(4).
• Outcome: Affirmed. The serious ladder and repeat scaffold violations were affirmed with $23,000 in total penalties.
• Key point: A safety program does not establish unpreventable employee misconduct when management removes needed protective equipment and a supervisor knows or should know how employees are performing the assigned work.

Full text (OSHRC public release)

                                           UNITED STATES OF AMERICA
                    OCCUPATIONAL    SAFETY      AND HEALTH REVIEW COMMISSION
                                           One Lafayette Centfe
                                     1120 20th Street, N.W. - 9th Floor
                                        Washington, DC 20036-3419

PHONE:
coM(202)606-6100
fTS(202)60&5100

                                                  ..

SECRETARY OF LABOR, l
.

                                                   .
                                                   .




                            Complainant,           :
                                                   ..
               v.                                  l
                                                    .     OSHRC Docket No. 91-3235
                                                    ..

CECO CORPORATION,

                            Respondent.


                                                DECISION

BEFORE:              WEISBERG, Chairman; FOULKE and MONTOYA, Commissioner.

BY THE COMMISSION:

               On April 26, 1991, Larry Zufelt, a CECO laborer, suffered a fatal l&foot fall from
an improvised scaffold in a stairwell of a building under construction.    The scaffold consisted
of a narrow aluminum plank, 14 inches wide, running from one landing to a straight ladder
positioned on the landing below. The plank lacked guardrails and was used to support two
stepladders leaning unopened against the wall, as if they were straight ladders.       Following




                                                                            1995 OSHRC No. 21
                                              2

an inspection, the Occupational Safety and Health Administration (“OSHA”) issued two
citations, one alleging a serious violation of 29 C.F.R. 8 1926.4Sl(a)(4),l and the other
alleging a repeat violation of 29 C.F.R. 0 1926.1053(b)(4).2
At issue on review are the sufficiency of the Secretary’s proof of CECO’s knowledge
of the violative conditions,3 and the propriety of the administrative law judge’s exclusion of
certain evidence relating to the credibility of the Secretary’s witness on the knowledge issue.
We reverse the judge’s evidentiary ruling and admit the evidence, but based on our
examination of the record as a whole, we affirm the judge’s credibility finding and his finding
of knowledge. Lastly, for reasons differing from those given by the judge, we find that the
violative conditions were not the result of unpreventable employee misconduct.
BACKGROUND
April 26th was CECO’s last day of work at the site, where it was a concrete subcon-
tractor. J.D. Taylor Company was the general contractor. D.J. DuPont, CECO’s district
superintendent, and James Weir, CECO’s job foreman, were shipping out equipment and
materials when Taylor’s representative asked Weir to grind some rough areas in the south
stairwell of the plant. Weir looked the areas over and assigned a laborer, Michael Crisafulli,
to grind them. He told Crisafulli to install temporary lighting, which Crisafulli borrowed

‘Section 1926.451(a)(4) provides:

       Guardrails and toeboards shall be installed on all open sides and ends of
       platforms more than 10 feet above the ground or floor, except needle beam
       scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4
       feet to 10 feet in height, having a minimum horizontal dimension in either
       direction of less than 45 inches, shall have standard guardrails installed on all
       open sides and ends of the platform.

2Section 1926.1053(b)(4) p rovides that “[lladders shall be used only for the purpose for
which they were designed.”

?The other elements of the Secretary’sprima facie case of violation were established and are
not in issue. See Astra Pharmaceutical prods., 9 BNA OSHC 2126,2129, 1981 CCH OSHD
ll 25,578, pp. 31,899.900 (No. 786247, 1981) (Secretary must establish applicability of cited
standard, existence of violative condition, employee exposure thereto, and employer
knowledge thereof), afd in petinent part, 681 F.2d 69 (1st Cir. 1982).
3

from the painting subcontractor.4 In dispute is whether Weir, whose knowledge is
imputable to CECO, also told Crisafulli to use the improvised scaffold-stepladders set-up.
According to CrisafUi, Weir took him to the north stairwell of the plant, where &felt was
grinding rough spots, and told Crisafulli to bring Zufelt’s equipment to the south stairwell
and set it up the same way. According to Weir, he alone went to the north stairwell to get
Zufelt to help Crisafulli, and he expected these laborers to use opened stepladders resting
on the stairwell landings. The judge, relying on a statement Weir made to the compliance
officer, found that Weir did not actually instruct the laborers to use opened stepladders.
Based on this finding, on Weir’s observation of Zufelt using a plank and straight ladder for
grinding work in the north stairwell, and on Crisafulli’s testimony, the judge found that
CECO had knowledge of the violative condition.
ADMISSIBILITY
At the hearing, CECO sought to discredit Crisafulli through the testimony of DuPont
and another CECO official who had questioned Crisafulli after the accident concerning his
responsibility for using the unsafe equipment. CECO intended to introduce statements by
Crisafulli made during this questioning that were allegedly inconsistent with his testimony at
the hearing. Federal Rule of Evidence 613(b)5 would make evidence of such prior inconsis-
tent statements admissible if; at the hearing, CrisafUi had been “afforded an opportunity
to explain or deny” them and if the Secretary could have questioned him regarding them.

4As Weir admitted at the hearing, the full extent of the grinding work could not be seen
without temporary lighting.

‘Rule 613(b) provides the following:

                    Extrinsic evidence     of a prior inconsistent
                    statement by a witness is not admissible unless
                    the witness is afforded an opportunity to explain
                    or deny the same and the opposite party is
                    afforded an opportunity to interrogate the witness
                    thereon, or the interests of justice otherwise
                    require.    This provision does not apply to
                    admissions of a party-opponent as defined in rule
                    801(d)(2).
                                               4

See United States v. Harvq, 547 F.2d 720,722-23 (2d Cir. 1976). Crisafulli was afforded such
an opportunity. CECO cross-examined him as to whether he had given an inconsistent
version of events to the two officials, and thereafter, the Secretary could also have ques-
tioned him! Accordingly, we hold the testimony regarding the prior statements admissible.
CREDIBILITY
We End, however, that these prior statements do not establish that Crisafulli’s
testimony at the hearing was unreliable.’ CrisaMli explained at the hearing that, although
he had followed Weir’s instruction to use the unsafe equipment, he was worried D.J. DuPont
would catch him on the unsafe equipment and reprimand him; DuPont was “very strict on
safety policies.” Crisafulli testified that, because he “didn’t want to get anybody in trouble
or [have] anything happen” in light of “any violations,” he was %ery tentative” about what
he said to CECO and OSHA after the accident. But in a discussion before his first meeting
with OSHA, Crisafulli mentioned Weir’s involvement to Kevin Peterson, CECO’s regional
safety manager, who asked Crisafulli “jokingly” or “in a humorous way” not to volunteer that
information to OSHA. Crisafulli responded that, if asked, he would have to make a full
statement. Consistent with this reply, Crisafulli’s first statement to OSHA was abbreviated
as Peterson apparently wanted, but when the OSHA compliance officer contacted Crisafulli
later and asked him if he had anything more to add, Crisafulli made a full statement. We
find that this is a believable explanation for the inconsistencies in Crisafulli’s statements.
We also agree with the judge that Weir’s testimony “abound[ed] in inconsistencies.”
The judge noted that at the hearing Weir initially left stepladders out of a list of CECO’s
on-site equipment, When questioned further, he guessed that CECO owned the two steplad-
ders used by Crisafulli in the south stairwell, only to testify still later that those stepladders

60n review, the Secretary essentially concedes that CECO’s evidence was admissible. In
ruling against admissibility, the judge overlooked the fact that CECO had followed the
requisite procedure. The judge did, however, permit CECO to make a question-and-answer
offer of proof, which is in the transcript.

‘See Seibel Modem Mfg. & WeMing Cop., 15 BNA OSHC 1218, 1228 n.15, 1991-93 CCH
OSHD B 29,442, p. 39,685 n.15 (No. 88-821, 1991) (Commission authority to make factual
findings where administrative law judge did not).
5

were borrowed. Moreover, Weir testified that he had not seen any stepladders in the north
stairwell when he went to get Zufelt. Whether CECO still had any stepladders on the site,
Weir evidently did not know. In addition, the judge noted that Weir’s expectation that
Crisafulli would only use stepladders was questionable because Weir admitted having
witnessed Zufelt using a similar improvised scaffold in the north stairwell to perform grinding
work; this, despite his assertion that grinding work was typically done from stepladders and
had been done from stepladders all the previous week. The judge concluded that Weir
should have considered the possibility that Zufelt might suggest to Crisafulli that they use
the same set-up to perform the same kind of work in the south stairwell.
We therefore find no basis to question the judge’s characterization of Crisafulli’s
testimony as “worthy of credit.” See C Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78
CCH OSHD li 22,481, p. 27,099 (No. 14249, 1978) (judge’s credibility findings entitled to
weight because influenced by having heard witnesses and observed demeanor). We find
Crisafulli credible and affirm the judge’s credibility findings.8
KNOWLEDGE AND PREVE~~ILITY
Relying on Crisafulli’s testimony that Weir instructed the laborers to use the unsafe
equipment, g Chairman Weisberg and Commissioner Foulke find that CECO had actual
knowledge of the violative conditions. See A.P. O’Horo Co., 14 BNA OSHC 2004, 2007,
1991-93 CCH OSHD lI 29,223, p. 39,129 (No. 85-369, 1991).
Moreover, Chairman Weisberg and Commissioner Montoya fiid that CECO had
constructive knowledge of the violative conditions. Evidently, Weir assumed that the
laborers could use stepladders, but his testimony makes plain that he did not know if
stepladders belonging to CECO remained on the worksite. Weir assigned the grinding work

8We assign no weight to the two answers Crisafulli gave in his deposition that differed fr-om
his testimony because the differences are not material. CECO finds inconsistencies in
Crisafulli’s testimony about grinding the ceiling spatter, but we find none, given his testimony
indicating that he used a stepladder longer than 4-6 feet to reach the ceiling.

weir claimed there were no stepladders upon the aluminum plank when he saw it being
used as a scaffold in the north stainvell. For the reasons stated above, we rely on Crisafulli’s
testimony that a stepladder was on the plank when Weir took him to the north stairwell.
6
.
without being able to see how far it extended towards the ceiling in the dim stairwell, but
he neither instructed the laborers on what equipment to use nor checked back during the
next 1 to 1% hours to see what equipment they were using. Weir also saw Zufelt’s
improvised and unguarded scaffold while getting him to help Crisafulli. Although Weir may
not have considered Zufelt’s unguarded scaffold unsafe on the north stairway (a single-story
stairway that was shorter and narrower than the south stairway), he should reasonably have
anticipated that the same set-up would be used, and be unsafe, in the larger south stairwell.
See Southwestern Bell Telephone Co., 7 BNA OSHC 1058, 1059-60, 1979 CCH OSHD
lI 23,278, p. 28,153 (No. 15841, 1979). A reasonably prudent supervisor would have given
more specific instructions regarding how to do such a job on the last day at the worksite
when the necessary equipment belonging to the company had been removed. See Pressure
Concrete Const~, 15 BNA OSHC 2011, 2016, 1991-93 CCH OSHD T 29,902, p. 40,811 (No.
90-2668, 1992).
We also find that CECO has failed to establish that the violation was an instance of
unpreventable employee misconduct by Weir. CECO had a comprehensive safety program
of instruction and discipline requiring fall protection. However, we have found that a
supervisor’s failure to follow the safety rules and involvement in the misconduct is strong
evidence that the employer’s safety program was lax. Daniel Constr. Co., 10 BNA OSHC
1549, 1552, 1982 CCH OSHD II 26,027, p. 32,672 (No. 16265, 1982). Here, as we have
found, Weir knew or should have known of the violations. Moreover, DuPont and Weir
were involved in the process of removing equipment fr-om the worksite, including the fall
protective devices, and there is no evidence that CECO officials took feasible steps to ensure
compliance with their rules by making the requisite fall protective devices available through
the last day on the worksite. In view of the fact that CECO’s safety program had been, in
effect, aborted on the last day on the worksite, we find the company liable for the two
violations.
7

                                       ORDER
     Accordingly, we affirm the citation items, as well as the judge’s penalty assessment

of $23,000, which is not disputed by the parties.

                                                      Stuart E. Weisberg
                                                      Chairman




                                                      Commissioner

Dated: April 12, 1995
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE:
COM (202) 6064100
Frs(202)606-5100

                                            ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 91-3235

CECO CORPORATION,

                Respondent.




                               NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
April 12,1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITEIIN 60 DAYS OF TEIE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.

                                                          FOR THE COMMISSION

April 12, 1995
Date
.
Executive Secretary
Docket No. 91-3235

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

J. Larry Stine, Esquire
Wimberly & Lawson, P.C.
3400 Peachtree Road, N.E.
Lenox Towers, Suite 400
Atlanta, GA 30326

Richard DeBenedetto
Administrative Law Judge .
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-3235
CECO CORPOIUUION
Respondent.

                   NOTICE OF DOCKETING
            OF ADMINISTRATLTIVE L4W JUDGES                DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on August 3, 1993. The decision of the Judge
will become a final order of the Commission on September 2, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION M.UST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 23, 1993 in order to ermit sld cient time for its review. See
Commission Rule 91, 29 C.-rp .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safe@ and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
.* 200 Constitution Avenue, N.W.
Washington, DC. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: August 3, 1993
DOCKET NO. 91-3235
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 &rick, Room ‘707
New York, NY 10014

J. Larry Stine, Esquire
Wimberly & Lawson, P. C.
Lenox Towers, Suite 1750
3400 Peachtree Road, N. E.
Atlanta, GA 30326

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00106155930:02
UNITED STATES OF AMERICA

                  OCCUPATIONAL        SAFETY    AND HEALTH REVIEW COMMISSION
                          JOHN W. McCORMACK     POST OFFICE AND COURTHOUSE
                                                ROOM 420
                                 BOSTON,    MASSACHUSEI-I-S 02109-4501
                                            (617)           223-9746




                                                    ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. : OSHRC Docket No. 91-3235
.

CECO CORPORATION, ..
..
Respondent. ..
..
..

Appearances:

   Esther D. Curtwright, Esq.                                             J. Larry Stine, Esq.
           Office of the Solicitor                                                 Wimberly & Lawson, P.C.
           U.S. Department of Labor                                                Atlanta, Georgia
                    For Complainant                                                         For Respondent

Before Administrative Law Judge Richard DeBenedetto
DECISION AND ORDER
Ceco Corporation (CECO) was cited on October 22, 1991, for alleged serious
violation of 29 C.F.R. 51926.1053(b)(4) which provides that ladders shall be used only for
the purpose for which they were designed; and for alleged repeat violation of 5
1926.451(a)(4) which requires guardrails and toeboards on all open sides and ends of
platforms more than 10 feet above ground or floor. The Secretary proposes that a penalty
of $4,500 be assessed for the first item and $25,000 for the second.
The two citations stem from an incident which occurred on April 26, 1991, CECO’s
last day at the worksite where it was engaged by the general contractor, J.D. Taylor
Company (Taylor), as a subcontractor to perform concrete form work at an Anheuser-Busch
(A-B) waste water treatment plant in Baldwinsville, New York. On that day, three CECO
laborers were doing grinding work in the south stairwell when one of them, Larry Zufelt, fell
from a makeshift scaffold to the ground 18 feet below (Tr. 19-20, 273, 275-76, 300-03, 396-
99, 463; Exh. C-l).’ On May 10, 1991, Mr. Zufelt died from the injuries sustained from the
fall, and on May 23 an OSHA compliance office began an investigation of the accident (Tr.
273-74).
The makeshift scaffold on which the CECO employees were working consisted of an
aluminum “pit” board’ lain horizontally across the south stairwell with one end resting on
the stairs’ upper landing and the other on the rung of an unsecured ladder placed on the
lower landing and leaned against the wall. It is undisputed that there were no guardrails or
toeboards along the pit board’s edges, and that the employees used a step ladder while
placed on the boards in the closed position.3 While admitting the existence of the
substandard conditions, CECO defends on the grounds that it neither had knowledge of the
violations nor failed to exercise reasonable diligence in discovering those violations. CECO
pins the blame on one of its laborers, Michael Crisafulli, who had been employed by CECO
for 15 years as a laborer and, on prior occasions, as a laborer foreman. CECO contends
that the job foreman had assigned Crisafulli, along with two other laborers to do a specified
amount of work to be done off ladders, and that it was Crisafulli who rigged up the illegal
platform and ladder system in violation of CECO’s safety rules. CECO’s brief at 4-5.
CECO’s foreman at the site was James Weir who testified that he assigned three
laborers to the south stairwell project on April 26 to do the grinding work on two seams
between the concrete wall panels (Tr. 396-97, 453-56, 477, 491; Exhs. C-16, R-8). Weir
stated that grinding work was typically done from step ladders and he had no reason to
believe that this particular work could not be performed in the same manner (Tr. 397-98,
478-79). Consequently, he did not tell the men how to perform the work or what equipment
they should use. After pointing out the work to be done, he left the stairwell area and did

‘Grinding work involves the grounding down and patching of imperfections in the poured concrete (Tr. 11-13,
36-37; Exhs. C-10, C-11).

?he “pit” board was borrowed from the painting subcontractor and was light enough for one person to carry
(Tr. 488-89, 494, 565).

?‘he “step ladder” was a self-supporting, foldable, portable ladder.

                                                   2

not return until he was called to the scene of the accident. Weir maintained that the men
acted on their own initiative when they assembled the makeshift scaffold and used the step
ladder in a closed position. If he had been aware of the set-up, he would have stopped the
procedure immediately (Tr. 401).4
Michael Crisafulli, who was one of the laborers assigned to do the grinding work on
April 26, testified that Weir instructed the crew to grind not only the seams between the wall
panels, but also the concrete ceiling drippings (Tr. 12.13,43-44; Exh. C-13). Crisafulli stated
that when he expressed concern regarding the laborers’ ability to reach the area high up on
the stairwell’s wall and ceiling, Weir took him over to the site’s north stairwell where Zufelt
was already performing grinding work from a pit board scaffold with a closed step ladder
on it and told him to duplicate that set-up in the south stairwell (Tr. 14-15, 43-45, 110-U).
According to Crisafulli, the set-up in the north stairwell was then dismantled, carried to the
south stairwell, and reassembled (Tr. 15-16, 103; Exh. C-l).
Weir’s testimony abounds in inconsistencies. When asked by the Secretary’s counsel
to identify what equipment owned by CECO remained at the site on the last day, he first
indicated that there were only two CECO tool boxes full of hand tools at the site, but
subsequently added that there were also a couple of large ladders which belonged to CECO
being used in the south stairwell (Tr. 413-16, 420-21). Later, Weir denied that any of the
equipment used in the south stairwell belonged to CECO, stating that the pit board had
been borrowed from the painters, the straight ladder belonged to Taylor, and the step ladder
belonged to either Taylor or the painters (Tr. 488-89). Weir’s admission on cross-
examination that he could not actually see the extent of the grinding work he assigned that
day because the lighting in the south stairwell was poor, seriously undermines his assumption
that the work could have been successfully performed from step ladders (Tr. 458.59,465.66).
Thus, even if it were true that he did not direct the workers to go so far as to grind ceiling

4Weir did not observe the actual set-up even when he was called to the scene of the accident. In his written
statement given to the compliance officer, Weir stated that by the time he arrived, the equipment “had been
moved out of the way for clear passage of medical/rescue personnel” (Exh. C-16). This information was
confirmed by CECO’s own witness, D.J. DuPont (Tr. 534). However, during the hearing Weir testified that
Crisafulli had removed the makeshift scaffold because: “He was just scared. He wanted to get it out of there”
(Tr. 48990).

                                                 3

drips, it is possible that the imperfections of the two seams he claims to have assigned
extended further up the wall than he realized and could not possibly be reached from a step
ladder alone. Indeed, Weir conceded at the hearing that the work on these seams “ran up
aways” and Crisafulli indicated that he was grinding seams from the pit board when Zufelt
fell, not ceiling drips (Tr. 19-20, 458-59).
Although Weir denied ever taking Crisafulli over to the north stairwell, he did admit
to having checked on &felt there the morning of April 26th as he performed grinding work
from the same pit board set-up ultimately used in the south stairwell (Tr. 400-01, 429, 499-
500; Exh. C-17)? More telling is Weir’s acknowledgement that the set-up used by Zufelt
in the north stairwell posed a fall hazard (Tr. 499.500)! There is no indication from Weir,
however, that upon witnessing the use of this hazardous set-up, he ordered Zufelt to take
the necessary safety precautions or come down from the scaffold.’ Moreover, Weir testified
that he was the one who sent Zufelt to the south stairwell to assist Crisafulli and Fratto, the
third member of the crew, with the grinding work (Tr. 465). Therefore, assuming that he
himself did not direct Crisafulli to utilize the pit board set-up, Weir certainly should have
considered the possibility that Zufelt might suggest that the workers utilize the same set-up
he had just successfully, and apparently without reprimand, used in the north stairwell to
perform the same kind of work. Clearly if, as Weir conceded, the set-up employed in the
narrow north stairwell posed a fall hazard, it was equally, if not more, dangerous to utilize
it in the wider south stairwell. Although there is no indication in the record that Zufelt
actually made such a suggestion on that morning, one must wonder just how Crisafulli ended

‘Weir’s admission that he witnessed the use of this set-up in the north stairwell to perform grinding work
weakens not only his prior assertion that grinding work was typically done from step ladders and had, in fact,
been done from step ladders all that last week, but also his contention that he had no reason to believe that
the work would be performed any differently in this case (Tr. 397-98, 478-79).

%he north stairwell was a narrow, single stairwell with a height of over six feet; in contrast, the south stairwell
was a higher, double stairwell (Tr. 111-12, 343-44, 499-500). Although the compliance officer testified that
he was told by CECO that there was not a fall hazard in the north stairwell, he also indicated that he had not
actually seen either the stairwell or the set-up in question (Tr. 343-44).

‘Clearly, Weir’s apparent failure to act upon an obvious safety infraction directly contradicts any claim on
CECO’s part in connection with its allegation of unpreventable employee misconduct discussed supra that its
supervisors seriously enforced safety work rules at the site.

                                                     4

up using the very same set-up that Zufelt had just used in the north stairwell if, as Weir
contends, Crisafulli was never taken to the north stairwell and told to duplicate the set-up
being used there.
As was noted during the hearing, it seems incredible that on their last day at this site,
a Friday no less, as materials and tools were being packed up and sent off-site, three
experienced laborers would take it upon themselves to set up an elaborate makeshift scaffold
in order to perform work which far exceeded their assigned duties. (Tr. 486-87, 496-97,
552-53). That such an effort would have been undertaken by these workers without some
direction from Weir that this was what was expected of them just doesn’t make sense.

         CECO challenges Crisafulli’s credibility by pointing to a written statement he gave

to the compliance officer in May 1991 (Exh. C-13) “where he admitted that he decided how
to set up the pit board and ladder”. CECO’s brief at 5-6. This statement which was neither
signed nor dated by Crisafulli in the designated spaces provided on the OSHA standard
statement form, was repudiated by Crisafulli at the hearing (Tr. 52-56). His testimony was
worthy of credit.
EXCLUSION OF EVIDENCE
At the hearing, CECO sought to admit the testimony of two CECO employees, D.J.
DuPont and Kevin Peterson, regarding prior statements made by Crisafulli, who was on the
pit board with Zufelt when he fell and who served as a primary witness for the Secretary
in this case (Tr. 536,540,563). CECO contends that these prior statements are inconsistent
.* with those made by Crisafulli at the hearing and therefore, impeach his testimony. The
Secretary objected to the admission of these statements on the grounds that they are
hearsay. After citing to several Federal Rules of Evidence which he claimed supported
admission, CECO’s counsel made offers of proof and it was agreed that the matter would
be briefed by the parties (Tr. 540-44, 563-64).
CECO has presented several different arguments in support of the admission of this
testimony. One is that the statements are admissible as prior inconsistent statements under
Federal Rule of Evidence 801. Indeed, according to Rule 801(d)(l), under certain
conditions, the prior inconsistent statements of a witness are not hearsay and therefore, can

                                                  5
be admitted for the truth of the matters they assert.8 See also McCormick, Evidence 5 251
at 12-21 (4th ed., 1992). This rule has no application here, however, because the out-of-
court statements made by Crisafulli were not made under oath and he was not questioned
about them during cross-examination.
        CECO also contends           that the prior statements        may be admitted      for the limited
purpose of impeaching the credibility of the witness. See McCormick, 6 34 at 113; Louise11
& Mueller, Federal Evidence, vo. 3, 0 356 at 546 (1979 & Suppl. 1992). In such a case,
however, the prior inconsistent          statements    of a witness may not be proven by extrinsic
evidence unless the witness is given the opportunity to explain or deny the statements and
the opposing party is given the opportunity to examine the witness on them. Fed. R. Evid.

613(b). See also McCormick, 9 37 at 121-22; Louise11 & Mueller, 6 358 at 561. The record
. _--.,-.-I-
shows that CECO has met neither one of these two requirements.
Two other rules cited by CECO in support of admission are also inapplicable here.
<
Rule 804(b)(3) governs statements made against interest, but applies only to instances where
the declarant is unavailable as a witness. Crisafulli was never “unavailable” within the
meaning of the Rule. Rule 803 sets forth exceptions to the hearsay rule and subsection (24)
provides a catch-all exception for cases where the judge determines, among other things, that
the statement possesses some guarantee of trustworthiness. The rule provides, however, that
a statement cannot be admitted pursuant to this exception

                  “...unless the proponent of it makes known to the adverse party
                  sufficiently in advance of the trial or hearing to provide the
                  adverse party with a fair opportunity to prepare to meet it, the
                  proponent’s intention to offer the statement and the particulars
                  of it, including the name and address of the declarant.”
CECO did not comply with this requirement.
                  UNPREVENTABLE             EMPLOYEE         MISCONDUCT           DEFENSE



8Rule 801(d)(l)   provides that a prior statement by witness is not hearsay if:

        (l)...The declarant testified at the trail or hearing and is subject to cross-examination
        concerning the statement, and the statement is (A) inconsistent with the declarant’s
        testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or
        other proceeding, or in a deposition...

                                                       6
   Although CECO’s defense of employee misconduct is grounded on the alleged actions

of Crisafulli who was employed at the site as a laborer, the evidence clearly points to Weir,
the job foreman, as the person mainly at fault. In cases involving improper conduct by a
supervisor or foreman which results in dangerous risks to employees under his or her
supervision, such fact raises an inference of lax enforcement and/or communication of the
employer’s safety policy. Brock v. L.E. MyersCo., High VoltageDiv. 818 F.2d 1270, 1277 (6th
Cir. 1987). The proper focus in employee misconduct cases is on the effectiveness of the
employer’s implementation of its safety program and not on whether the employee
misconduct is that of a foreman as opposed to an employee. Id.
In Consolidated FreightwaysCop., 15 BNA OSHC 1317, 1321, 1991 CCH OSHD ll
29,500, p. 39,810 (No. 86-0351, 1991), the Commission set out the applicable rule as follows:
Under Commission case law, the supervisor’s knowledge of the
violations, both actual and constructive, is imputable to the
employer for the purpose of proving employer knowledge of the
violations urzless the employer establishes that it took all
necessary precautions to prevent the violations, including
adequate instruction and supervision of its supervisor.
The compliance officer essentially conceded that CECO’s safety rules were adequate
to deal with fall hazards, The fall prevention section excerpted from CECO’s supervisor’s
safety manual specifically states in the manual’s section on ladders that “step ladders should
always be used in a fully opened position” (Tr. 508-09; Exh. R-9). The manual also contains
three sections that deal with guardrails, toeboards, and scaffolds, and each references the
need for such precautions when the scaffold being used is six feet or more in height (Exh.
R-9). Finally, both the supervisor’s manual and the employee safety rules contain what was
referred to at the hearing as the “six foot rule”, a rule which requires that employees “tie
off’ with a safety belt when working at heights of six feet or more and no other fall
protection is present (Exhs. R-5 & R-9). Compliance with this rule would have prevented
the incident on which the citations are based.
Both Crisafulli and Weir testified convincingly to their knowledge of these rules (Tr.
42-43, 72-72, 77-78, 90-91, 118-19, 363-65.) Crisafulli even admitted that he knew the use
of the unguarded scaffold and closed step ladder violated CECO safety rules as he

                                              7

understood them (Tr. 77, 118-19). Moreover, Weir presided over weekly toolbox meetings
at the site during which these work rules, as well as general safety concerns, were discussed;
from January to April 1991, approximately 14 toolbox meetings were held and attended by
all of the employees involved with the April 26th incident (Tr. 42.42,46,80-83,366-69; Exh.
R-10). Fall protection appears to have been discussed at every one of these meetings and
ladders were specifically noted on two of the meetings’ reports (Exh. R-6). Monthly
foreman safety meetings were also held to review safety performance for the month as well
as the rules contained in the supervisor’s manual (Tr. 83-88, 370-73, 507.lo).’ In addition,
the employee work rules were distributed to all new hires as part of a safety materials
package and were reviewed with employees at that time (Tr. 361-66).10 It would appear,
therefore, that CECO’s safety rules were being effectively communicated to its employees.
CECO argues that it conducted regular inspections at the A-B site in order to
monitor compliance with safety rules and also, that it effectively enforced these rules when
violations were found. CECO conducted several inspections of the A-B site during the
months leading up to the accident. CECO submitted several weekly safety inspection
reports completed by Weir from January to April 1991, and two reports completed by
DuPont in connection with inspections he performed in January and February of 1991 (Tr.
378.79,387.89,510-U; Exhs. R-7 & R-10). In addition to these formal inspections, DuPont
testified that he would informally inspect the site any time he was there which, near the end
of the project, was almost every day (Tr. 510-12). Likewise, CECO’s regional safety
manager, Kevin Peterson, testified that he conducted a safety audit on each of the three
occasions he visited the A-B site prior to his investigation of the accident (Tr. 560-610).
In addition to CECO’s own inspection and control procedures, safety inspections were
also conducted by Risk Technical Management Company (RTM), an organization hired by
A-B to facilitate the administration of a safety program for the project’s insurance company.

‘Evidently Crisafulli also attended some of the foreman safety meetings in the four moths preceding the
accident since he worked as a foreman for CECO on previous projects; at the A-B site, though, he worked
as a laborer (Tr. 9-10, 72, 85-88, 370-71, 510).

loIt is unclear how the supervisor’s manual was distributed, but Crisafulli did indicate that a copy of the
manual was kept in the “office” (Tr. 87438).

                                                8

RTM had a full-time inspector on-site to ensure safety compliance on the part of all
contractors and subcontractors (Tr. 129-33, 23 1-32).
Three RTM employees were called as witnesses for the Secretary. The Secretary
maintains that their testimony supports the contention that CECO’s safety program, while
comprehensive, was poorly implemented. Although.- the RTM witnesses offered somewhat
varying views on this issue, their overall assessments were not fundamentally at odds. On
the one hand, Robert Grosso, RTM’s safety and loss control representative at the A-B site
until early 1991 who visited the site on a daily basis, testified that CECO was one of the
more cooperative subcontractors at the site regarding safety procedures (Tr. 129-31, 142-43,
152,157.58,169.74). The other two RTM employees, James Goss and John Coniglio, stated
respectively that CECO’s safety program lacked follow-through and was poorly implemented
(Tr. 202, 240-41). Goss and Coniglio, however, were not on-site as often as Gross0 and had
less contact with CECO personnel than he did (Tr. 179-80, 231-33, 236-37, 385-86, 528-29).
Despite the good things Gross0 had to say about CECO, the contrast between his
testimony and his two colleagues disappears when we direct our attention to the following
relevant evidence: Several “safety service reports” Gross0 recorded from November 1990
to February 1991 indicate that CECO was frequently cited for safety infractions (Tr. 132-50,
152-56; Exh. C-14). On many occasions Gross0 brought these matters to the attention of
CECO’s various crew foreman so that the conditions could be corrected. He regarded Weir
as one of the “more cooperative” foreman (Tr. 136-37, 139-40, 144, 172-74; Exh. C-14).
Although Gross0 gave CECO a “B+“for its managers’ efforts to maintain a safe work
environment relative to the other trades on the construction project (Tr. 174), he made it
clear that CECO as well as the other contractors was remiss in its enforcement of safety
policy (Tr. 163), and that it was not unusual to encounter CECO employees working without
necessary fall protection (Tr. 165-66).
It is, concluded that CECO has failed to demonstrate that its efforts to monitor and
enforce compliance with its rules were adequate. Accordingly, the affirmative defense of
unpreventable employee misconduct is rejected.
VALIDITY OF REPEAT VIOLATION CHARGE

                                            9
    The parties have stipulated that a 1989 final order exists against CECO for violating

the platform guarding requirement set forth in 29 C.F.R. 5 1926.500(d)(l) at a construction
site in Massachusetts (Tr. 5-7)? On the basis of this final order, CECO’s violation of the
scaffold standard at 5 1926.451(a)(4) at the A-B site in New York has been classified as a
repeat violation. CECO challenges the validity of the policy under which this repeat
violation was issued, arguing that changes made in December 1990 to OSHA’s repeat policy
were made in violation of 5 553 of the Administrative Procedure Act ( APA ‘>, 5 U.S.C. 8s
55 l-559, 701-706.
Prior to December 31, 1990, OSHA’s policy required that in order to serve as the
basis for a repeat violation, a prior violation had to have been issued in the past three years
to the same employer for the violation of the same or a similar standard within the
geographical area or jurisdiction of the Area Office issuing the current violation; in other
words, if the prior citation occurred outside the geographical area in which the current
violation occurred, then the current violation could not be considered a repeat violation
(Exh. R-l). OSHA changed this requirement in a December 31, 1990 directive, CPL 2.45B
CH-1, which provided that high gravity serious violations could be issued as repeat violations
regardless of the geographical area in which the prior violation occurred; thus, any prior
violation of the same or a similar standard issued to an employer within three years of the
current violation can serve as the basis for a repeat violation (Exhs. R-2 & R-3).12
CECO contends that this policy change constitutes a change in rule-making and
therefore, is subject to the notice and comment requirements of the APA. Specifically, 6
553 requires an agency to give general notice of any proposed rule-making and to give
interested parties an opportunity to participate in the rule-making by allowing them to

Ҥ1926SOO(d)( 1) provides:

    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....

12A July 22, 1991 memorandum from OSHA’s Director of Compliance Programs clarifies this change in the
repeat policy and allows for the use of an employer’s nationwide citation history to support a repeat violation
whether the violation is high gravity serious or not (Exh. R-3).

                                                  10

“comment” on the issue either orally or in writing. These notice and comment provisions
do not apply, however to “interpretative rules, general statements of policy, or rules of
agency organization, procedure or practice...“. 5 U.S.C. $ 553(b)(A). The Supreme Court
has stated that agency actions can be distinguished as either one of these enumerated
exceptions or as “substantive rules”. Chrysler Corp. v. Brown, 441 U.S. 281, 301, 99 S.Ct
1705, 1717 (1979) (footnote omitted). Because “substantive” or “legislative” rules are those
which affect individual rights and obligations and “have the force of law”, i.e. are binding
upon a court, they are always subject to notice and comment requirements of the APA. Id.
at 1718, 1723-24. See also UnitedStatesDepartment of Labor v. Kast A4etalsCorp., 744 F.2d
1145, 1152-53 (5th Cir., 1984) (“Kast Metals”); Phoenix Forgikg Cop., 12 BNA OSHC 1317,
1323, 1985 CCH OSHD 5 27,256 (No. 82-398, 1985) (“Phoenix Forging”).
The Secretary correctly argues that the OSHA directive at issue here cannot be
considered a substantive rule because it imposes no new legal obligations on employers and
does not alter an employer’s duty to comply with the requirements of the OSH Act. Indeed,
on its face, the OSHA directive constitutes a rule of agency procedure in that it addresses
the administrative requirements involved in citing an employer for a repeat violation. See
Kast Metals at 1149 (OSHA directive governing the selection of employers of inspections a
rule of procedure under 6 551(4) of the APA).13 As noted above, rules of agency
procedure are specifically excluded in 5 553(b)(A) from notice and comment requirements.
This exemption, however, “does not extend to those procedural rules that depart from
existing practice and have a substantial impact on those regulated”. Brown Express, Inc. v.
United States, 607 F.2d 695, 702 (5th Cir. 1979). See also Kast Metals at 1153; Phoenix
Forging at 1323. As the Fifth Circuit has stated, “an agency rule that modifies substantive
rights and interests can only be nominally procedural and the exemption [from notice and

13Section 551(4) of the APA defines a “rule” as:

    “...the whole or a part of an agency statement of general or particular applicability and future
    effect designed to implement, interpret, or prescribe law or policy or describing the
    organization, procedure, or practice requirements of an agency...”

                                                   11

comment] for such rules of agency procedure cannot apply”. Kast Metals at 1153 (footnote
omitted).
CECO has failed to provide any evidence of the ways in which this directive
“substantially impacts” upon it or other employers. Moreover, as has already been noted,
the change in OSHA’s repeat policy does not impose any new obligations upon employers
or affect their legal rights under the Act; indeed, a repeat violation under the new policy can
still be contested by an employer in the same manner as before and the Secretary still
carries the burden of proving the violation. Furthermore, the directive should have no affect
on the manner in which an employer complies with the Act; as the Secretary points out,
CECO surely cannot be claiming that it relied on OSHA’s prior geographical limitation for
repeat violations to dictate its safety enforcement practices.
In Phoenix Forging, the Review Commission rejected the argument that an OSHA
directive altering the manner in which workplaces are selected for inspection had a
“substantial impact” upon employers even though the directive implicated issues involving
the Fourth Amendment and the issuance of warrants. Certainly a directive which simply
expands the geographical area in which a prior violation can serve as the basis for a repeat
violation has less of an impact upon employers than the directive in Phoenix Forging. It is
concluded that the change in OSHA’s repeat policy was procedural, not substantive, and
therefore, was exempt from the notice and comment requirements of the APA pursuant to
0 553(b)(A). B ecause the standard for which CECO was previously cited is sufficiently
similar to the standard cited here in that both address fall hazards from open platforms or
scaffolds and require the use of guardrails or railings to protect employees, the Secretary has
properly characterized the current violation as a repeat violation.
The hazardous conditions for which CECO was cited posed a substantial threat of
death or serious physical harm to its employees and therefore, the characterization of these
violations as serious was justified. Accordingly, the alleged violations are affirmed as cited.
Applying the penalty criteria of 29 U.S.C. 9 666(j), a penalty of $3,000 is assessed for
violation of the ladder standard at 3 1926.1053(b)(4), and $20,000 for repeat violation of the
platform standard at 8 1926.451(a)(4).

                                             12
     Based upon the foregoing findings and conclusions, it is

ORDERED that the citations are affirmed and penalties totalling $23,000 are assessed.

                                                                       P
                                                        \!
                                                       a-l@                        J#
                                                       RI&ARD    DeBENgDETT6
                                                       Judge, OSHRC



            July   28,   1993

Dated:
Boston, Massachusetts

                                           13