SECRETARY OF LAB0R,
Complainant,

v.

F. A. GRAY, INC.,
Respondent.

OSHRC Docket No. 83-0517

DECISION

Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
BY THE COMMISSION:

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

The question in this case is whether F. A. Gray violated 29 C.F.R. § 1926.28(a) and 1926.451(i)(8) when its employees were working at the edge of a roof and on a two-point suspension scaffold without using safety belts. Chairman Buckley and Commissioner Cleary agree that the citation item alleging a violation of section 1926.451(i)(8) should be vacated. They disagree, however, on whether the employer violated section 1926.28(a).[[1]]

Item 2A: Section 1926.451(i)(8)--Safety Belts on Scaffold

Item 2A of the citation alleges that F. A. Gray violated section 1926.451(i)(8), which requires that employees working on two-point suspension scaffolds "be protected by an approved safety "Life belt attached to a lifeline." [[2]] A compliance officer of the Occupational Safety and Health Administration, William Chase, observed two Gray employees, Reider Hansen and Chuck Hansen, on a two-point suspension scaffold without safety belts and lifelines. The employees were painting the exterior wall of a Holiday Inn building in Portsmouth, New Hampshire. The staging of the scaffold was 50 feet in the air. The compliance officer testified that, if the staging fell, the employees could be seriously injured or killed.

The parties agree that the employees should have been wearing safety belts. They disagree, however, as to whether the employer should be held liable for the employees' failure to do so. The Secretary argued, that Claude Poulin, Gray's leadman at the Holiday Inn jobsite, was a supervisory employee who knew that the employees had been working on the scaffold without belts. According to the Secretary, Poulin's knowledge can be imputed to Gray. Gray argues that Poulin was not a supervisory employee. It asserts that it had established a safety rule requiring the use of safety belts and that none of its supervisors knew that the employees on the scaffold were not wearing their belts.

Judge Furcolo vacated the citation, agreeing with Gray that Poulin was not a foreman whose knowledge could be imputed to the employer. The judge also concluded that Gray had an effectively communicated and enforced rule requiring its employees to wear safety belts when working on the scaffold. Finding that Gray had established an unpreventable employee misconduct defense, the judge vacated citation. Chairman Buckley and Commissioner Cleary agree that the judge's decision should be affirmed, although for different reasons.

Chairman Buckley would vacate the citation because the violation was unpreventable. Because the purpose of the Act is not to punish infractions, but to prevent safety and health hazards in the workplace, unpreventable infractions of safety regulations by employees are not violations of the Act by an employer. Unpreventable infractions include those that are unknown to a reasonably diligent employer or are not reasonably predictable or foreseeable. The Secretary contends that the issue of a violation can be decided by determining whether Poulin can be characterized as a supervisor whose knowledge is to be "imputed" to the employer. By use of the legal fiction of imputation of knowledge, the Secretary argues that the violation here was within the employer's knowledge and therefore preventable.

The preventability of unsafe work conditions cannot be determined by characterizing an employee as a supervisor and then applying legal fiction to impute that employee's knowledge tot he employer. As the United States Court of Appeals for the Third Circuit has held, "[t]he participation of...supervisory personnel may be evidence that an employer could have foreseen and prevented a violation through the exercise of reasonable diligence, but it will not, standing alone, end the inquiry into foreseeability." Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984). The conduct and knowledge of supervisors are therefore only one of several factors that must be considered in determining whether a condition violative of a standard was preventable. See Todd Shipyards Corp., 85 OSAHRC __, 11 BNA OSHC 2177, 2182, 1984 CCH OSHD ¶ 27,001, p. 34,744 ( No. 77-1598, 1984) (Buckley, Chairman, separate opinion). If the violative condition was not preventable, the employer cannot be found in violation of the Act. Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570-71 (5th Cir.1976).

F. A. Gray's supervisors Poplawski and Bradford Gray knew that employees would use the scaffolding but reasonably expected that safety belts would be worn in accordance with OSHA standards and company policy. F. A. Gray's supervisors had informed the employees of the requirement to wear belts and had told them they would be disciplined for failure to obey. Gray and Poplawski each visited the site at. random once or twice a day and neither had seen the employees working on the scaffold without their belts. Indeed, the employees testified that they had always worn their belts In the past, and Hansen confirmed that he would have been fired had he not done so.

The Secretary argues that Poulin was a supervisor and knew that employees were not wearing belts. Poulin, although a leadman of the crew, testified that he could not control the actions of his fellow employees and could not have required them to conform to the acknowledged policy of wearing safety belts. Even accepting the Secretary's argument that Poulin had supervisory authority for some purposes and should be considered a supervisor does not establish that the incident was preventable, in view of the uncontroverted evidence that Poulin's supervisory authority was not such that he could have prevented his fellow employees from ignoring the requirement that safety belts be worn. The Secretary's argument elevates form over analysis, since it ignores the realities of -worksite authority in favor of easily applied labels. It is often the case on construction sites that there are many "Supervisors" with varying levels of authority. It is not enough to show that a "supervisor" knew of the violative condition without considering or analyzing other factors that evidence an employer's efforts and ability to achieve compliance with the Act. Here, Gray fulfilled its obligations to enforce the Act through two of its supervisors who unquestionably had authority to enforce compliance. Chairman Buckley therefore finds that the failure of F. A. Gray's employees to wear safety belts was not preventable and he would vacate the citation item.

Commissioner Cleary agrees that the citation should be vacated. To prove that an employer violated the Act, the Secretary must show, among other things, that the employer knew or with the exercise of reasonable diligence could have known of and prevented the violation. Concrete Construction Co., 85 OSAHRC __, 12 BNA OSHC 1174, 1176, 1985 CCH OSHD ¶ 27,171, p. 35,072 (No. 82-1210, 1985), pet. for rev. filed, No. 85-3197 (6th Cir. March 11, 1985); Scheel Construction Co., 76 OSAHRC 138/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ¶ 21,263 (No. 8867, 1976). The Secretary makes a prima facie showing of knowledge by proving that a supervisory employee knew of or created the violation because the knowledge and actions of supervisory personnel are generally imputed to their employers. See H. E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1505, 1982 CCH OSHD ¶ 25,985, p. 32,614 (No. 78-204, 1982), aff'd mem., 705 F.2d 449 (5th Cir. 1983). Commissioner Cleary therefore agrees with the judge and the parties that Poulin's status is relevant. Commissioner Cleary concludes, however, that Poulin was not a supervisor for the purpose of imputing knowledge.

Although Poulin identified himself to the compliance officer as the foreman, he admitted at the hearing that this was a designation he used pretty much himself. Poulin did not have the power to hire or fire and had no responsibility for enforcing safety rules. He told the compliance officer that he did not like to tell the other employees what to do because they had been at the work longer than he had. Although Poulin had the responsibility to make sure that all materials needed on the job were present and that the employees understood the job at hand, foreman Walter Poplawski and vice president Bradford Gray were in charge at the site. They tried to visit the job at least once, if not twice, a day and were responsible for safety. Since Poulin was only entrusted with minimal supervision and both Poplawski and Gray visited the site regularly, Poulin was not a supervisor for the purpose of imputing knowledge. See Daniel International Corp. v. OSHRC, 683 F.2d 361, 364-365 (11th Cir. 1982).

The Secretary also failed to establish that Gray was not reasonably diligent in attempting to prevent the violation. First, the employer had an effectively communicated work rule. John Gray, F. A. Gray's president, explained that after receiving a citation in November 1982 alleging a "serious" violation for the failure of two employees working from a two-point suspension scaffold to wear safety belts, he implemented a new safety rule: The decision to wear safety belts would no longer be left to the independent judgement of its journeymen painters; instead, the employees were required to wear belts when working on a two-point suspension scaffold. Although Gray never committed the rule to writing, the employees were informed of the rule at the beginning of each job by Gray's supervisors. There is no evidence that the employees did not understand the rule. The only two nonsupervisory employees who testified at the hearing, Reider Hansen and Claude Poulin, stated that they were aware of the safety belt rule and that they had worn safety belts on prior occasions.[[3]] See Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ¶ 26,128 (No. 76-2636, 1982) (substance, not form, of safety rules are significant).

The Secretary argues that Gray did not adequately enforce its safety program. He maintains that the supervisors were rarely present on the jobsite and that the observation of violations was largely incidental. Commissioner Cleary concludes that the degree of supervision was adequate. Vice president Bradford Gray stated that random inspections were made at least once, if not twice, a day to see "that the employees were using their safety equipment. Foreman Poplawski also inspected the worksite at random at least twice a day and sometimes more than twice a day. If safety belt violations had been occurring, they would have been easily observed. Yet, neither Poplawski nor Bradford Gray had observed employees without their belts. Poplawski personally inspected the jobsite when Claude Poulin and Al Gerald's were working on the scaffold and had not observed a violation of the safety belt rule. Bradford Gray was not aware of any violations of the safely belt rule by any employees before the inspection date and neither he nor Poplawski were aware that employees were not wearing belts on the inspection date. Poplawski had told employees "there would be discipline" if they failed to follow the rules. Bradford Gray had reprimanded employees for expressing disagreement or not complying with the safety rules and testified that employees had been dismissed. Both Claude Poulin and Reider Hansen were experienced employees. Raider Hansen stated that if either Bradford Gray, John Gray or Poplawski knew he was not wearing a belt, he probably would have been fired. Commissioner Cleary concludes that Gray was reasonably diligent in its efforts to prevent the violation. See Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982); Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1684, 1976-77 CCH OSHD ¶ 21,098, p. 25,401 n. 7 (No. 4105, 1976). Accordingly, he would vacated item 2A.

Item 1: Section 1926.28(a)--Safety Belts

Citation item 1 alleges that F. A. Gray violated section 1926.28(a)[[4]] in that its employees did not wear safety belts while they were painting the exterior of a wall at the edge of a flat roof of the Holiday Inn building. There was a parapet at the edge of the roof that was about 12 inches wide; the interior height was 15 to 18 inches. The roof was 60 feet above the ground. When compliance officer Chase visited the site, two Gray employees, leadman Poulin and Al Gerald's, a laborer, were painting an area about 2 feet below the top of the parapet on the outer face of the building. To perform this work they used a roller with a handle approximately 23 inches long, knelt on the roof and leaned out against the parapet, resting their chests on the foot-wide top surface of the parapet. A photograph taken by the compliance officer shows an employee kneeling on the roof behind the parapet, bracing himself with his left hand. His right hand was extended over the parapet to paint the exterior of the two-foot high section of exterior wall.

The evidence is conflicting as to whether a hazard existed for which safety belts were needed. The compliance officer and John Crevier, general representative of the International Brotherhood of Painters and Allied Trades and a painter for sixteen years, testified that the employees should have been wearing protective equipment. In compliance officer Chase's opinion, it would have been easy for the employees to fall while painting because the employees "were hanging out over the edge of the parapet...." They testified also that the employees were in an awkward position and could have become disoriented. Crevier based his opinion on his belief that the entire torso of an employee would be leaning out over the parapet. He further stated that he had twice painted parapet walls and had worn a safety belt both times. He also testified that employees in shipyards and other areas use safety belts when painting on flat roofs and tanks where there is a danger of falling. However, he admitted he had not seen anyone painting the face of a parapet at those sites.

Two painting contractors who competed with F. A. Gray, Arthur Chase and Maynard Young, did not believe that a hazard existed or that safety belts were needed. Both had been in the painting business since the mid-1940's and had experience working on a flat roof to paint a parapet wall. Neither Chase nor Young had used safety belts when performing painting jobs over a parapet wall, and neither had heard of a painter falling off a flat roof while painting a parapet. In contrast to the testimony of Crevier and the compliance officer, both men testified that the face of the parapet could safely be painted without extending any significant portion of the painter's body over the edge. Gray's foreman, Walter Poplawski, and Poulin, who was one of the employees painting the parapet face, agreed with Young and Chase that there was no danger of falling. Poulin testified that he never placed both his arms and shoulders over the edge of the parapet, and that at most he placed his arm and head and only sometimes part of one shoulder over the parapet edge. John Gray, F.A. Gray's president, testified that the company had had no injuries to painters working from flat roofs.

Administrative Law Judge Foster Furcolo affirmed the citation item. He concluded that the description of the painting alone--leaning over a 15-18 inch parapet and reaching to paint 2 feet down on the face of a 60 foot high building--is clear and convincing evidence of a hazardous condition for which safety belts were required.

Commissioner Cleary would affirm the judge's decision. In determining whether a hazardous condition exists under the standard, Commissioner Cleary would apply a reasonable person test. This test, with which the majority of courts are in basic agreement, requires that a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment. Industry custom and practice aid in making a determination but are not controlling. L. R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 513 at n.17 (D.C. Cir. 1983); Austin Building Co. v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981); Voegele Co. v. OSHRC, 625 F.2d 1075, 1078-1079 (3rd Cir. 1980); General Dynamics Corp. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1977).

Applying this test, Commissioner Cleary concludes that an obvious hazard existed for which the use of personal protective equipment was required. He agrees with the judge that the description of the employees' work together with the picture of F. A. Gray's employee leaning over the wall is conclusive evidence that the employees were exposed to a falling hazard. See Voegele Co., 79 OSAHRC 76/A2, 7 BNA 1713, 1979 CCH OSHD ¶ 23,860 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3rd Cir. 1980); Jensen Construction Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979). The photograph alone belies any testimony by F. A. Gray's witnesses that the employees were not in a position to fall. It clearly shows that the employee's body was over the parapet a significant degree. and it is evident that a fall could occur. In attempting to paint the wall with a long roller and a brush, an employee could reach over too far and lose his balance.

In Commissioner Cleary's view the standard is designed to protect against a careless or accidental move by an employee. Cf. Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ¶ 24,074 (No. 76-4520, 1979)(machine guarding standard intended to protect against employee behavior caused by bad judgment or inattention). In this case, the parapet did not prevent an employee from losing his balance nor did it serve as a barrier to prevent a fall.

Chairman Buckley would reverse the judge and vacate the item. The test to be applied in determining whether "there Is exposure to hazardous conditions" within the meaning of section 1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard. The Fifth Circuit holds that industry custom and practice is dispositive, while the Commission and some other circuits have held that such practice is not dispositive.

Whether industry custom and practice are dispositive on the issue of what a reasonable person familiar with the circumstances and the industry would recognize as a hazard is not relevant in this case.[[5]] The Secretary has not offered any evidence to rebut the testimony of industry experts that no hazard existed and has failed to meet the substantial burden he would bear in establishing that an industry's custom and practice was unreasonable. As the Sixth Circuit observed in Ray Evers Welding Co. v. OSHRC, 625 F.2d 726 (6th Cir. 1980), if industry practices are not to be found controlling because the entire industry is negligent, "such negligence on the part of a whole industry cannot be lightly presumed. . . . It must be proven." 625 F.2d at 732.

In this case four men--all very familiar with the painting industry and with painting over parapet's from, a flat roof--testified they did not believe that painters who were working over a parapet on a flat roof were exposed to a falling hazard. They stated that they had not worn safety belts when painting in this situation. Two of these men, Arthur Chase and Maynard Young, had worked in the painting business since the 1940's. The other two men, Walter Poplawski and Claude Poulin, had been painters for 24 years and 9 years, respectively. These witnesses gave a rational explanation for their opinion: They believed that the width and height of the parapet provided adequate protection and that employees did not extend beyond it a sufficient distance to be exposed to a falling hazard, even in the hypothetical event of a fainting spell.

All of Gray's witnesses were more qualified than the compliance officer to testify as to industry recognition of a hazard. The compliance officer had no familiarity with the painting industry. The inspection or F. A. Gray's worksite was his first inspection of painting on a roof. His opinion that the work was hazardous was also based on an exaggerated account of the employees' position--that 'they were "hanging out over the edge of the parapet," when in fact only a small portion of their upper body extended beyond the parapet. Even though Crevier had experience in the painting industry, his single opinion that a hazard existed does not outweigh the opinions of the industry representatives and F. A. Gray's employees. Indeed, Crevier's testimony is particularly difficult to credit because it was based on the mistaken belief that the bodies of the employee here were leaning more than half-way over the edge of the parapet. [[6]]

Nor is there evidence in the record of any injuries to employees from working on flat roofs with parapets. See General Motors Corp., G. M. Parts Div., 84 OSAHRC , 11 BNA OSHC 2062, 2066, 1984 CCH OSHD ¶ 26,961, p. 34,611 (No. 78-1443 & 79-4478, 1984), appeal transferred, No. 84-1680 (1st Cir. Oct. 15, 1984). On the contrary, the record shows that F. A. Gray had not experienced any injuries from working over a parapet and neither Maynard Young, Arthur Chase, nor Walter Poplawski was aware of a painter falling over a parapet while painting from a flat roof.

For the above reasons, Chairman Buckley concludes that the Secretary has failed to show that a reasonable person familiar with the circumstances at A. Gray's worksite would recognize a hazard requiring the use of safety belts. Accordingly, Chairman Buckley would vacate item 1.

The Commissioners agree to affirm the judge's vacation of item 2A, alleging a violation of section 1926.451(i)(8). The two Commission members are divided on whether the judge erred in affirming item 1, alleging a violation of section 1926.28(a). Official action by the Commission can be taken, however, with the affirmative vote of at least two members. Section 12(f) of the Act, 29 U.S.C. § 661(e). To resolve this impasse and permit the case to proceed to a final resolution, the members have agreed to affirm the judge's disposition of item 1 but accord that portion of the judge's decision no precedential value. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 13910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). Accordingly, the judge's disposition of items 1 and 2A we affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 26 1985