Metro Steel Construction Co.

Plain-English summary

Metro Steel erected structural steel for a shopping mall in Westbury, New York. OSHA alleged two instances in which employees walked exterior beams about 40 feet above the ground without fall protection. For the first item, the Commission found critical ambiguity because Metro's witnesses testified that the employee walked on a stack of decking hidden from the compliance officer's distant viewpoint. For the second item, a videotape showed a violation but did not establish that the person was a Metro employee rather than a worker for another trade. The Commission also explained that it need not defer to a judge's witness finding when the judge did not clearly identify and explain a demeanor-based credibility determination. Both reviewed items and the associated penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.501(b)(1).
• Outcome: Two fall-protection instances vacated, along with the grouped penalty.
• Key point: OSHA must prove the observed condition and identify the exposed worker as the cited employer's employee; unresolved ambiguity is decided against the party with the burden of proof.

Full text (OSHRC public release)

                         United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                    1120 20th Street, N.W., Ninth Floor
                       Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 96-1459
METRO STEEL CONSTRUCTION CO.,
Respondent.

                                    DECISION

Before: WEISBERG, Chairman; and ROGERS, Commissioner.
BY THE COMMISSION:
This case arises from a citation issued by the Occupational Safety and Health
Administration (“OSHA”) to Metro Steel Construction Co., Inc. (“Metro”). Items 2a and 2b
of that citation alleged that Metro had violated the construction safety standard at 29 C.F.R.
§ 1926.105(a),1 which requires the use of fall protection when employees are exposed to a
fall of more than 25 feet. Metro contested the citation, and a hearing was held before Chief
Administrative Law Judge Irving Sommer. The judge’s decision has been directed for review
pursuant to 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of

   1
    That standard provides:

   § 1926.105 Safety nets.

   (a) Safety nets shall be provided when workplaces are more than 25 feet
   above the ground or water surface, or other surfaces where the use of ladders,
   scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
   impractical.

2

1970, 29 U.S.C. §§ 651-678 (“the Act”) to determine whether he erred in affirming items 2a
and 2b of the citation. For the reasons below, we reverse the judge and vacate both items.
Item 2a
Metro was erecting the skeletal structural steel for a two-story shopping mall that was
under construction in Westbury, Long Island, New York. An OSHA compliance officer
arrived one afternoon to conduct an inspection of the worksite. He spoke to Metro’s project
superintendent, Charles O’Leary, who informed him that Metro’s safety director was not at
the site. O’Leary telephoned the safety director, who was in New Jersey. Because he could
not get to the site before the end of the workday, the safety director requested that the
compliance officer meet him there the next morning. When the compliance officer arrived
the next day, he spoke with O’Leary and the safety director. He subsequently interviewed
two Metro employees, Brathwaite and Snow, ironworkers who were performing structural
steel erection.
Near the end of that workday, the compliance officer was in the parking lot next to
his automobile, getting ready to leave the site, when he observed Brathwaite on the roof level
of the structure, walking along the side of the building closest to the parking lot where the
compliance officer was standing. It appeared to the compliance officer that Brathwaite was
walking along the exterior beam, in which case he would be exposed to a fall to the outside
of the building forty feet to the ground, in violation of section 1926.105(a). The compliance
officer did not see any decking in the area where Brathwaite was walking and testified that
he had no reason to believe that there was decking there. He stated that he could see
Brathwaite stepping over the joists. At that point, O’Leary approached, and the compliance
officer called to him that he was going to cite Metro for Brathwaite’s actions. The
compliance officer then got into his car and left the site.
O’Leary testified that, when the compliance officer pointed to the employee on the
building, he recognized Brathwaite, and that he could see Brathwaite from the knees up.
O’Leary testified that he immediately investigated the situation and saw as he approached
the building that Brathwaite was walking along a stack of metal decking that had been laid
 3

across the joists that ran perpendicular to the exterior beam. According to O’Leary, the stack
of decking, which would ultimately be spread out to form a solid surface, had been placed
there a day or so earlier to provide a safe three-foot-wide walkway for the ironworkers
performing the steel erection. He estimated that it was set back 3 - 5 feet from the exterior
beam and indicated that it was not visible from the compliance officer’s location in the
parking lot because the height of the exterior beam concealed it. O’Leary testified that, as
soon as he discovered the situation, he went to Metro’s construction trailer, got his camera,
and took photographs showing the conditions.
Snow also testified. He said that he and Brathwaite worked as partners, and that each
of them must know where the other is at all times in order not to do anything that would
cause his partner to be injured. When Snow was placing a beam or joist, Brathwaite would
be at the other end. Snow testified that, to his knowledge, Brathwaite walked on the decking
placed for that purpose and never walked along the exterior beam. Snow testified that he,
Brathwaite, and the other ironworkers routinely walk on the decking because it provides a
safe walkway. He explained that, although it may have appeared to the compliance officer
that Brathwaite was stepping over joists, he probably was stepping over the metal bands that
held the stacks of decking together. Snow also corroborated O’Leary’s testimony that the
decking was not visible from the location in the parking lot where the compliance officer had
been standing because it was concealed behind the exterior beam, and that it was necessary
to get much closer to the building in order to see the decking.
The judge relied on the compliance officer’s testimony, stating that the compliance
officer was an experienced veteran who was “adamant” that he had not seen any decking and
that he had seen Brathwaite stepping over the joists. The judge examined the photographs
taken by O’Leary and did not accord them any weight because he concluded that they did
not all represent the same location. Having considered the totality of the evidence and
weighed the testimony of the compliance officer against that of O’Leary and Snow, we
reverse the judge.
 4

   A significant factor in our decision is the limited nature of the compliance officer’s

testimony. He made his observations from only one location in the parking lot as he was
getting ready to leave the site, yelled to Metro’s project superintendent that Brathwaite’s
actions constituted a violation, then immediately left. Had he remained, or had he
approached nearer to the building, he would either have seen the decking or have been able
to testify with certainty that there was no decking in place. Because he did not do this, his
testimony is open to contradiction by the more specific testimony of Metro’s witnesses, who
have presented sufficient evidence to create critical ambiguity about what the conditions
actually were. Both O’Leary and Snow testified that Brathwaite was walking along decking
that had previously been laid for that purpose. Snow worked closely with Brathwaite and
never knew him to walk along an exterior beam without fall protection. According to
O’Leary, when the compliance officer pointed to Brathwaite, Brathwaite was visible from
the knees up. This suggests that his lower legs were hidden by the beam he was supposedly
standing on and that he was standing behind the beam, on the decking. In addition, Snow’s
explanation that the ironworkers had to step over the steel bands holding the stacks of
decking together casts doubt upon the compliance officer’s conclusion that Brathwaite was
stepping over the joists.
The Secretary argues that the judge’s reliance on the compliance officer’s testimony
amounts to a credibility finding by the judge. We do not agree. When findings of fact are
based on the credibility of witnesses, they must be clearly stated as credibility determinations
and the reasons must be set out. E.g., P&Z Co., 6 BNA OSHC 1189, 1192, 1977-78 CCH
OSHD ¶ 22,413, p. 27,024 (No. 76-431, 1977); C. Kaufman, Inc., 6 BNA OSHC 1295,
1297-98, 1977-78 CCH OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978); Asplundh Tree Expert
Co., 6 BNA OSHC 1951, 1953-54, 1978 CCH OSHD ¶ 23,033, p. 27,841 (No. 16162,
1978). The Commission will ordinarily defer to credibility determinations by a judge that
are properly explained, but it need not defer to findings that are not based on the demeanor
of the witnesses or on other factors that are peculiarly observable by the judge who presides
over the hearing. Waste Mgt. of Palm Beach, 17 BNA OSHC 1308, 1309-10, 1995-97 CCH
 5

OSHD ¶ 30,841, p. 42,891 (No. 93-128, 1995). Where a judge’s finding is not based on
such factors, the Commission is in as good a position as the judge to determine the facts. C.J.
Hughes Constr., 17 BNA OSHC 1753, 1755, 1995-97 CCH OSHD ¶ 31,129, p. 43,475 (No.
93-3177, 1996). That is the case here.
Considering the totality of the evidence, and keeping in mind the respective ability
of each witness to observe the incidents that were the subject of his testimony, we cannot
find that the compliance officer’s testimony that he saw Brathwaite on the exterior beam
outweighs the testimony of Metro’s two witnesses and must resolve this ambiguity against
the Secretary.2 We therefore conclude that the Secretary has not carried her burden of
proving that Brathwaite was exposed to an exterior fall of more than twenty-five feet.
Accordingly, we reverse the judge and vacate item 2a of the citation.3
Item 2b
The compliance officer returned to the Westbury worksite one morning almost three
months later. From a location in the parking lot, he videotaped various employees
performing construction activities on the worksite. A videotape that has been introduced into

   2
    The Commission bases its determination on the sworn testimony of Snow and

O’Leary. Chairman Weisberg believes that the photographs introduced by Metro, although

not dispositive, support the testimony of O’Leary. Commissioner Rogers, on the other hand,

believes that the photographs do not necessarily all represent the same location, and,

therefore, do not add credence to the testimony.
3
The Secretary has filed a motion to strike that portion of Metro’s brief in which the

company argues that, if Brathwaite did walk on the exterior beam, his actions constituted

unpreventable employee misconduct. In view of our disposition of this item, Metro’s

argument that it has established an affirmative defense is moot, and we need not reach the

Secretary’s motion.
 6

evidence shows someone walking along an exterior beam without fall protection, exposed
to a fall of 40 feet to the ground. That individual is clearly in violation of section
1926.105(a). The question before us is whether the Secretary has established that the
individual in question was a Metro employee.
The videotape depicts three situations that were deemed by the compliance officer to
be relevant because he believed that the same person was shown in each of the three scenes.
The first situation shows an individual dressed in a black shirt and dark pants sitting astride
a beam, welding. It appears that the welder’s safety lanyard is tied to a beam, protecting him
from falling. This segment of the videotape is significant only because the compliance
officer believed that the welder was the person depicted in the other two segments of the
videotape and that his welding activity was part of the steel erection being performed by
Metro, which would establish that the welder was a Metro employee.
The second section of the videotape depicts the violation. It shows a man wearing a
black T-shirt and dark pants, as was the welder, walking the exterior beam without fall
protection. After walking the length of one beam, thirty feet, he turned onto an interior beam
and walked to the interior of the floor. The compliance officer testified that the man then
descended a ladder. The compliance officer did not go onto the site to ascertain the
individual’s identity because he believed that it was the welder, and because Metro’s safety
director had requested him not to interview Metro employees without the safety director
present.
The third segment of the videotape also shows a man wearing a black T-shirt and
black pants. He is sitting near the “barrel” area of the construction astride a beam near where
it is connected to an upright column. He appears to be working in concert with another
person, who is astraddle another beam, facing him, on the other side of the column. These
employees straddling the beams appear to have been driving a pin or a bolt into a hole in the
beam. The compliance officer testified that he believed that they were performing a steel
erection activity called “bolting up.”
 7

   In affirming this item, the administrative law judge credited the compliance officer’s

testimony that the individual who performed the welding, the person who committed the
violation, and the person straddling the beam were all the same person, and that the work
being performed was steel erection activity, which meant that the person was a Metro
employee.
We do not agree with the judge. We find that the Secretary has failed to show by a
preponderance of the evidence that the person who walked the exterior beam without fall
protection in the second segment of the videotape was a Metro employee. The Secretary
attempted to establish this by showing that the welder in the first segment was a Metro
employee and that he was also the person shown committing the violation in the second
segment as well as the person shown working in the third segment. The compliance officer
admitted on cross-examination, however, that the welder appeared to be wearing dark green
pants, while the pants worn by the person who walked along the outer beam were black.
This testimony suggests that the welder in the first segment and the individual videotaped
committing the violation in the second segment were not the same person.
Nor can we conclude that the person in the third section of the videotape is the same
person who committed the violation. Having viewed the videotape, we cannot determine that
the second and third segments of the videotape involve the same person. In addition, several
factors cast doubt on the compliance officer’s testimony that the individual shown in the
second segment of the videotape was a Metro employee: both O’Leary and Snow testified
that they knew all the Metro employees on the worksite and that they did not recognize the
person who walked the beam without protection as a Metro employee; and there were a
number of other trades working on the site at the same time as Metro, including ironworkers
who worked for another company that was performing “ornamental ironwork” or “light iron”
work, as distinguished from the heavier skeleton steel or structural steel work being
performed by Metro. The individual in the third segment of the videotape was working in
an area where a stairway would be located. He appears to be banging a pin or a bolt into
a hole in the beam, but we are not able to determine on the record presented to us whether
 8

he was performing part of the skeleton steel erection or whether he was putting in brackets
to hold the stairway. We cannot, therefore, find that he was a Metro employee either.
On this record, we find that the Secretary has not carried her burden of proving that
the person who committed the violation was a Metro Steel employee and that Metro Steel
should be held liable for the violation. Accordingly, we reverse the administrative law judge
and vacate item 2b of the citation.
Conclusion
For the reasons above, we reverse the administrative law judge and vacate items 2a
and 2b of the citation and the penalty proposed for those items.

                                                     /s/
                                                     Stuart E. Weisberg
                                                     Chairman



                                                     /s/
                                                     Thomasina V. Rogers

Date: April 14, 1999 Commissioner
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 96-1459
:
METRO STEEL CONSTRUCTION :
COMPANY, INC., :
:
Respondent. :

APPEARANCES:

           Alan L. Kammerman, Esquire                     Richard L. Slavitt, Esquire
           New York, New York                             Parsippany, New Jersey
           For the Complainant.                           For the Respondent.

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
an inspection of a construction site in Westbury, New York, from June 25, 1996, until September 25,
1996; as a result of the inspection, Respondent Metro Steel Construction Company (“Metro”) was
issued a citation alleging two instances of violations of 29 C.F.R. § 1926.105(a), the OSHA standard
requiring nets or other fall protection where work places are over 25 feet from the ground or other
surfaces.1 Metro contested the citation, and the hearing in this matter was held on May 1, 1997, and
July 23, 1997. Both parties have submitted post-hearing briefs.

   1
     The citation also alleged violations of 29 C.F.R. §§ 1926.20(b)(1) and 1926.501(b)(1);

however, the Secretary has withdrawn items 1 and 3, the items alleging these violations, leaving only
item 2, alleging the instances noted above, to be resolved.
 2

                                        The Inspection
   Metro was erecting the structural steel of the two-story building under construction at the site.

On June 25, 1996, Norman Sebbesse, the OSHA compliance officer (“CO”) who conducted the
inspection, met with the general contractor of the job and with Charles O’Leary, Metro’s on-site
superintendent; he also spoke with Chad Snow and Lindley Bratwaite, two Metro steel workers. CO
Sebbesse went back to the site the next day, and that afternoon he saw Snow and Bratwaite proceed
to the building with safety belts in hand. Bratwaite put a ladder against an interior column and climbed
up to a beam on top of the second story; he walked that beam to the outside of the building, and after
proceeding along an exterior beam for about 30 feet he sat down, tied off to the beam, and began
working on a joist. The CO left after this occurrence, but returned to the site on September 20, 1996,
to further observe Metro’s work. In the morning he saw an employee in a black shirt welding on
joists. That afternoon he saw the same employee walk an interior beam to an outside beam, where
he and another worker sat down, tied off, and did some bolting work; the employee in the black shirt
then unbuckled his belt, stood up, and walked about 30 feet along the outside beam, after which he
turned to the inside, walked on an interior beam, and climbed down a ladder. CO Sebbesse videoed
this event, and based on his determination that both this employee and Bratwaite had been exposed
to falling to the exterior from the second story of the building, a distance of 40 feet, OSHA cited
Metro for violating 29 C.F.R. § 1926.105(a), which provides as follows:2
Safety nets shall be provided when workplaces are more than 25 feet above the
ground or water surface, or other surfaces where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines, or safety belts is impractical.
Citation 1 - Item 2a
This item is based on CO Sebbesse’s having seen Lindley Bratwaite walking on an exterior
beam. Metro contends that Bratwaite walked on decking that was laying alongside the beam. The
testimony of Chad Snow, Bratwaite’s partner, and Charles O’Leary, taken together, was that decking
was placed along the edge of the building to provide a walkway so that employees could get to their
work stations safely, and that the decking could not be seen from the location in the parking lot where

   2
    No citations were issued for exposures to falls to the interior of the building because the

distance from the beams to the decking below was 20 feet.
 3

the CO and O’Leary had observed Bratwaite as the outside beam obscured the decking; they further
testified that photos R-4-5 accurately showed the building that day, and that Bratwaite had not
walked on the outside beam.3 (Tr. 94-102; 120-25; 134-40; 147-48). CO Sebbesse agreed he had seen
Bratwaite from the parking lot, that he had not walked any closer to the building, and that he had not
seen any decking like that depicted in R-4-5; however, he indicated on photo R-3 how Bratwaite had
walked along the interior and then the exterior beam, and he specifically testified that he had watched
Bratwaite stepping over the joists as he walked the beam and that he therefore had had no reason to
go any closer to the building. (Tr. 12-14; 37-45; 61; 67; 80).
Based on the record, it is my finding that Bratwaite was exposed to the cited hazard. The CO,
who has seven years experience with OSHA and has conducted nearly 400 inspections, was adamant
that he had seen Bratwaite walking the beam and stepping over the joists, the ends of which are
clearly shown protruding over the tops of the outside beams in photos R-2-5. (Tr. 5-6; 12-14; 80).
Snow testified the decking was held together with steel bands such that an employee walking on it
would have had to step over the bands, intimating that the CO mistook Bratwaite’s walking on the
decking for being on the outside beam. (Tr. 102). Regardless, I am not persuaded by Metro’s
contention with respect to this item, and my conclusion that the standard was violated is supported
by Metro’s own photos. R-2-3, which show no decking, depict the cited area. (Tr. 40-45). R-4-5, on
the other hand, which do show decking, portray either another area or the cited area at a later time
on June 26, and that this is so is apparent from a comparison of R-2-3 with R-4-5; in particular, the
large pole with a “P” that intersects the crane on the right side of R-2 appears nowhere in R-4-5. This
citation item is affirmed as a serious violation. The penalty for this item is set out following item 2b.
Citation 1 - Item 2b
The basis for this item is the employee CO Sebbesse saw walking along an outside beam on
September 20, 1996. The CO testified that he first observed the employee, who had on a black shirt,
welding on joists in the morning; he further testified that in the afternoon the same employee, after
doing some bolting work while tied off to an exterior beam, unbuckled his safety belt and walked the
outside beam for about 30 feet before turning to the interior and proceeding along an inside beam.

    3
     O’Leary testified that he took R-1-5, photos of the site parking lot and the building under

erection, shortly after the CO’s departure; R-1-5 all show a date of June 26, 1996. (Tr. 138-39).
 4

CO Sebbesse described these events as C-2, his video, was shown at the hearing. (Tr. 18-25; 54-56;
62-66; 74-78). Metro contends that the welder was a different employee than the one the CO saw in
the afternoon, who, according to Metro, was an ornamental steel worker. The record does, in fact,
show that there were about ten other subcontractors on the job, including an ornamental steel
contractor, that ornamental steel employees were working on the building that day, and that Metro
performed only steel erection at the site. (Tr. 50-52; 66; 78-79; 96-98; 104; 122-23). In addition,
Chad Snow and Charles O’Leary testified they did not recognize the person who walked the outside
beam on the video, and that Metro’s steel workers were all union members who did only one type
of job, i.e., connecting, bolting or welding, at the site; O’Leary also testified that the subject employee
appeared to be working by himself, while his employees always worked in pairs, that there was a
stairway in the area where the subject employee was working, and that he could have been an
ornamental steel worker who was welding stairway brackets. (Tr. 104; 107-10; 140-43; 154-55).
CO Sebbesse’s testimony, as noted above, was that the employee was welding joists in the
morning and that the same employee was performing bolting with another worker in the afternoon.
The CO further testified that the specific work the employee and his partner were doing was bolting
the connection between the “barrel facia” of the building and the outside beam and that he considered
that work to be steel erection activity. (Tr. 54-55; 63-66). Based on the record, the CO’s testimony
is credited over that of Snow and O’Leary, and I conclude that the subject employee was a Metro
worker and that he was exposed to the cited hazard. In so concluding, I have noted Metro’s
assertions as to why the employee the CO saw in the morning could not have been the same one he
saw that afternoon. However, the CO’s testimony, in my view, renders these assertions unpersuasive.
(Tr. 54-58; 74-78). Regardless, even assuming arguendo that the employee who walked the outside
beam was a different worker, the job that he was doing, according to the CO, was that of a steel
erector. (Tr. 63-66). I have also noted Metro’s assertion that the CO never positively identified the
employee as a Metro worker. In this regard, the CO specifically testified that Metro representatives
had told him not to speak to its workers, that he had therefore pointed out the individual to O’Leary,
who indicated that he would take care of the matter, and that O’Leary never got back with him. (Tr.
19-20; 50; 57-58; 62-63). This item is accordingly affirmed as a serious violation.
 5

                                     Penalty Assessment
    The proposed penalty for these two grouped items is $4,200.00. The Secretary presented

evidence to the effect that the initial penalty of $5,000.00 was increased to $7,000.00 because of the
high gravity of the cited conditions and in order to have the appropriate deterrent effect; a 40 percent
reduction was then applied to this amount due to the size of the company, for a total penalty of
$4,200.00, but no reductions for history or good faith were given due to the gravity of the violations
and the company’s history of previous violations. (Tr. 26-29; 81-83). However, Metro presented
evidence to rebut that of the Secretary with respect to previous history. (Tr. 84-90). It is my
conclusion that a total penalty of $3,500.00 is appropriate for item 2; this amount has been derived
by subtracting a 40 percent reduction for size and a 10 percent reduction for history from $7,000.00.
Conclusions of Law
1. Respondent Metro Steel Construction Company, Inc., is engaged in a business affecting
commerce and has employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. § 1926.105(a).
3. Respondent was not in violation of 29 C.F.R. §§ 1926.20(b)(1) and 1926.501(b)(1).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. Items 1 and 3 of citation 1 are vacated.
2. Item 2 of citation 1 is affirmed as a serious violation, and a total penalty of $3,500.00 is
assessed.

                                                    Irving Sommer
                                                    Chief Judge

Date: