Docket No. 83-1189

SECRETARY OF LABOR,
Complainant,

A.C. DELLOVADE, INC.,
Respondent.

OSHRC Docket No. 83-1189

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.

By the Commission:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). 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. ї 659(c).

The Secretary of Labor alleges that A.C. Dellovade willfully violated two construction safety standards. Dellovade claims that it did not violate one standard and that neither violation was willful. Administrative Law Judge Ramon M. Child upheld the Secretary's allegations and assessed a penalty of $6,500 rather than the $8,000 proposed by the Secretary. Dellovade obtained discretionary review of the judge's decision. We affirm.

Dellovade was a subcontractor installing metal paneling in an A-frame building at a coal degasification project near Beulah, North Dakota. The A-frame building was very large, about 700 feet long, and 100 feet in height. There was a broad walkway that ran the length of the building, forming a second floor about 50 feet above the ground. About 40 feet above this second level, Dellovade employees were installing metal paneling in the interior of the building. Two of them were attaching ceiling soffit panels at the very peak of the building.

To install the panels, employee Rod Giltrop sat on a wooden plank. Giltrop's lanyard was tied to a lifeline that was wrapped around that plank. He gained access to the plank by means of a ladder from a 26-inch-wide metal grate "pick scaffold" resting on beams. Giltrop was assisted by another employee, John Chase, who handed the panels up to Giltrop and assisted him in drilling holes to install the panels. During the operation, Giltrop moved to another plank and attempted to relocate the plank to which his lifeline was attached. The plank fell, it pulled him off the other plank, and he was killed.

Item 1a of citation 2 alleges that Dellovade violated 29 C.F.R. ї 1926.104(b). That standard states:

ї 1926.104 Safety belts, lifelines, and lanyards.
* * *
(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

Item 1a(a) alleges that employee Giltrop was tied off below his point of operation: Giltrop's lanyard was tied to a lifeline that was wrapped around the plank on which he sat. Judge Child found that Giltrop's lifeline was not secured above the point of operation, and that Dellovade knew, or with the exercise of reasonable diligence could have known, of the violation. Dellovade does not dispute these findings.

Dellovade claims, however, that it would have been impractical to secure a lifeline above the point of operation because the interior of the building had been completely paneled except for the ceiling, which lacked open steel to which to attach a lifeline. An employer may show that compliance with a standard is infeasible. Dun-Par Engineered Form Co., 86 OSAHRC ____, 12 BNA OSHC 1949, 1952-1956, 1986 CCH OSHD І 27,650, pp. 36,020-36,024 (No. 79-2553, 1986), pet. for rev. filed, No. 86-2365 (8th Cir. Oct. 30, 1986). Like Judge Child, however, we find that Dellovade failed to prove this claim.

Employee Chase did testify that there was no open steel in the ceiling area above the soffit panels. He testified that to attach a lifeline, braces would have had to have been welded to the A-frame members. A compliance officer testified, however, that that step could have been taken, that eyes could have been welded to the main frames and continuous safety lines strung from them. Myron Rathjen, the safety supervisor for the general contractor, the Henry J. Kaiser Company, testified that with forethought a way could have been found to enable the employees to tie off above. He saw no reason why eyes could not have been welded to the vertical members of the A-frame to hold a lifeline before the panels were installed. In view of this evidence, we reject Dellovade's infeasibility defense.

Items 1a(a) and 1a(b) of citation 2 allege that neither Giltrop nor Chase were tied off to a structural member or anchorage capable of supporting 5,400 pounds. Judge Child found these allegations proven. Again, the record supports the judge's finding. Giltrop and Chase were sometimes both tied off to a single plank. A compliance officer who had once been employed in the construction industry as a safety technician, instructor and engineer calculated the load-bearing capacity of the wooden plank to be only 337 pounds. Dellovade did not attempt to impeach or directly contradict this testimony. Instead, it offered the testimony of general foreman Charles Schear and superintendent Ron DeMers that the scaffold plank would have held one man and that scaffold planks can with stand a 200-pound man jumping on it. Neither testified, however, that the plank could have held 5,400 pounds. We therefore adopt Judge Child's finding that the use of the plank violated the standard's requirement that an anchorage be capable of supporting 5,400 pounds.

We also find that the plank was not always an "anchorage." The plank was not attached to anything but rested on two 3 1/4-inch wide steel lips of parallel angle irons about 53 inches apart. Two Dellovade witnesses testified that while the plank was between the angle irons, it could not have been pulled out if an employee had fallen.[[1]] However, once Giltrop had finished installing soffit panels in one section of the ceiling, he sat on another plank and slid the plank used to anchor his lanyard along the lips of the angle irons to a new work position. He was to do this from one end of the building to the other. There were, however, reinforcing gussets every five feet that prevented Giltrop from sliding the plank to the next position. Giltrop then had to lift the plank over the gussets and replace it on the lips of the angle irons. Chase testified that, during the four days he and Giltrop did this work, there were occasions when Giltrop lifted the plank while both Giltrop and Chase were still tied to it. On another occasion, Giltrop lifted the plank while he alone was still tied to it. At those times, the requirement of the standard that lifelines be secured to an "anchorage" was violated.

Dellovade essentially argues that the Secretary did not prove that it knew or with the exercise of reasonable diligence could have known that Giltrop and Chase remained tied-off to the plank while Giltrop moved it over the gussets. General foreman Schear, who knew that Giltrop was tied off to the plank on which he sat, testified that he saw no reason to tell Giltrop not to remain tied-off while he moved the plank because "that comes with common sense."

Dellovade in effect argues that the lack of such a warning is not evidence of a lack of reasonable diligence because a reasonably diligent employer may rely on the common sense of its employee not to do something as dangerous as moving a plank to which one is tied off.

We disagree. Dellovade supervisors neither instructed its employees how to tie off nor paid any attention to how they did so. Instead, Dellovade permitted its employees to devise their own arrangements for fall protection. Company officials who act as if safety is a matter of little importance can hardly claim to be surprised when employees adopt the same attitude. See, e.g., National Safety Council, Accident Prevention Manual for Industrial Operations 23-25 (6th ed. 1973)("safety starts with top management"; "the worker's attitude is usually the same as his supervisor's"); cf. Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1072, 1983-84 CCH OSHD І 26,389, p. 33,492 (No. 78-5366, 1982)("[w]hen a supervisor violates a safety rule, . . . he also suggests to his subordinates . . . that safety rules are not to be taken seriously.").

We therefore adopt Judge Child's findings that Dellovade violated all the requirements of section 1926.104(b): Giltrop was not tied off above his point of operation, though he feasibly could have been; the lifelines of both Giltrop and Chase were tied off to a plank that could not support 5,400 pounds and were at times not secured to an anchorage. We agree with the judge's findings that Dellovade either knew or could with the exercise of reasonable diligence have known of the violative conditions.

We also affirm the judge's finding that Dellovade's violations of section 1926.104(b) were willful. A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety. Simplex Time Recorder Co., 85 OSAHRC ____, 12 BNA OSHC 1591, 1595, 1985 CCH OSHD І 27,546, p. 35,571 (No. 82-12, 1985); Asbestos Textile Co., 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD І 27,101, p. 34,948 (No. 79-3831, 1984); cf. Brock v. Richland Shoe Co., 799 F.2d 80 (3d Cir. 1986)(Fair Labor Standards Act violation willful if employer knew or recklessly disregarded whether conduct prohibited). The record shows such disregard, indifference and recklessness.

Four months before the present violations occurred, an OSHA compliance officer spoke to job superintendent DeMers about fall protection at this construction site. He asked DeMers "what his thoughts were . . . for [having] continuing fall protection for his employees" both inside and outside the building. Because DeMers "really had no definite thoughts in mind as far as the protection for the interior," the compliance officer told DeMers of his experience with a similar A-frame building and they "started to talk about static lines . . . ." The compliance officer recommended that because there was limited cross-bracing to anchor a cable, Dellovade should weld eyes to the main frames and install a continuous static line. While both the compliance officer and DeMers were looking up at the peak of the A-frame--where Giltrop and Chase were later to work--the compliance officer suggested that after welding eyes to the A-frame, taut cables be run at all working levels between the A-frames.

Rathjen, the safety supervisor for the general contractor, who overheard this conversation and confirmed the compliance officer's account, also testified that a safety booklet supplied to Dellovade had spoken of the use of safety belts. The purpose of this booklet, which reproduced pages from OSHA regulations, was to ensure that subcontractors such as Dellovade follow federal, state and Kaiser safety rules. Rathjen also testified that he had had numerous conversations with DeMers about fall hazards, lifelines, static lines and lanyards; his opinion was that DeMers was aware of the "rules and regulations" for the use of safety belts. Despite this, Dellovade never had safety lines installed.

Dellovade also neither instructed its employees in the use of safety belts, nor paid any attention to how they tied off. A Dellovade foreman, Mike "McGoo" Danna, had come up with the idea of Giltrop's sitting on planks and had brought the planks for Giltrop and Chase to use. Although foreman Danna had showed them how to "work off the plank to hang the [soffit] sheets," he did not tell them how to tie off. Chase testified that no one in Dellovade had ever instructed them how to tie off a safety belt. He was not told that lifelines were to be secured above the point of operation and to an anchorage able to withstand 5,400 pounds. Chase also testified that "besides our foreman . . . watching what we were doing . . .," there were no safety inspections of their work. Dellovade had agreed in a contract with the general contractor to make daily inspections of all areas in which Dellovade employees worked. It designated job superintendent DeMers to make these inspections. But DeMers testified that although he did observe the work in the highest level of the A-frame, the area where Giltrop and Chase were working, he paid no attention to how they had tied off and left that point to others.

Dellovade argues that at the time of the violation there was no exposed structural steel to which to anchor a lifeline. This argument ignores the fact that Dellovade could have easily foreseen the lack of open steel, given the problem some forethought, and installed a static line in advance. See Todd Shipyards Corp., 84 OSAHRC 39/A2, 11 BNA OSHC 2177, 2182, 1984-85 CCH OSHD І 27,001, p. 34,744 (No. 77-1598, 1984)(concurring opinion). Although OSHA had forewarned Dellovade of the need for fall protection and described how it could have been installed, Dellovade neither installed fall protection devices nor instructed its employees to perform their work in a way that complied with OSHA requirements. Rather, Dellovade left employees to improvise a means of protection by discussion among themselves when the panels were to be installed. This was in accordance with the view of job superintendent DeMers--the highest Dellovade official on the site and its designated safety representative--that on matters of occupational safety and health, he is "not a dictator." The result was predictable: Employees and lower-level supervisors, lacking the authority to make the major changes necessary to afford the required fall protection, improvised half-measures that protected poorly and fell short of the measures required by OSHA standards. Such an abdication by an employer of its final responsibility under the Act for compliance with occupational safety and health standards is a willful violation of the Act.

II.

Section 1926.451(a)(4) requires that guardrails and toeboards be installed on all open sides and ends of scaffold platforms more than 10 feet above the ground or floor. Items 1b(a) and 1b(b) of citation 2 alleged that Dellovade employees had used a tubular scaffold and a pick scaffold, both of which lacked guardrails and toeboards.

Dellovade does not dispute that it violated the standard. It argues only that the violations were not willful. Judge Child found that the evidence established the willfulness of the violations. Though Dellovade had claimed as to the tubular scaffold cited in sub-item 1b(a) that the guardrails might have to be dismantled when the floating platform on which the scaffold rested moved under some beams, the judge held that this inconvenience did not excuse Dellovade's failure to ever use guardrails. As to sub-item 1b(b), Dellovade offered no reason why the pick scaffold lacked guardrails. At the hearing, DeMers conceded that Dellovade was wrong in not having guardrails on the pick scaffold. Moreover, Kaiser's safety supervisor Rathjen had discussed the installation of guardrails on scaffolds with DeMers and testified that Dellovade was aware of OSHA requirements.

On review, Dellovade simply asserts that the scaffold violations were not willful. It supplies no argument and cites no evidence suggesting error in the judge's finding. We affirm Judge Child's finding.

Finally, we agree with the judge's assessment of a combined penalty of $6,500.

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: JAN 12 1987

SECRETARY OF LABOR,
Complainant,

A. C. DELLOVADE, INC.,
Respondent.

OSHRC DOCKET
NO. 83-1189

DECISION AND ORDER

Appearances:

For the Complainant:
Jaylynn K. Fortney, Esquire
Kansas City, Missouri

For the Respondent:             Post-Hearing Submittals:
Robert Monticelli                 Sanford S. Finder, Esquire
McMurray, Pennsylvania    Washington, Pennsylvania

Statement of the Case
This matter is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ї 651 et seq. (the Act).

Complainant seeks affirmance of Citation No. 2, issued to respondent October 19, 1983, charging two items of willful violation of section 5(a)(2) of the Act and of the total combined proposed penalty in the sum of $8,000.00.[[1]]

The citation resulted from an inspection conducted following a fatal fall by an employee of respondent at a worksite near Beulah, North Dakota. The matter was heard at Bismarck, North Dakota, on the 27th day of March, 1984. Notice of hearing was duly given affected employees. Except as employees may have been called as witnesses there was no appearance by or on their behalf. (Tr. 17).

ANG Coal Gasification Company and Henry J. Kaiser Company, owner and general contractor respectively of the project where this worksite was located, moved to intervene at the hearing, which motion was denied. However, permission was granted their counsel, Randall J. Bakke, to make appearance in the course of questioning said companies' employees for the limited purpose of objecting to any questions considered to be harmful to the interests of said companies. (Tr. 10-16)

Complainant has submitted Post-Trial Brief and respondent has submitted Proposed Findings of Fact and Conclusions of Law together with Brief in support thereof. To the extent proposed findings or conclusions are consistent with those entered herein they are accepted; to the extent they are inconsistent with those set forth herein, they are denied. Respondent denies that it was in violation of the standard referred to in item 1a of the citation, or that if it was in violation thereof that such violation was willful. Respondent has conceded that it was in violation of the standard referred to in item 1b of the citation, but denies that said violation was willful.

Issues:
The issues to be determined are:

A. Was the respondent in violation of the standard at 29 C.F.R. 1926.104(b)? (item 1a)
B. Were violations committed by respondent as set forth in the citation, or found herein, willful, or, failing that, serious?
C. What, if any, penalty would be appropriate?

Findings of Fact
1. Respondent A. C. Dellovade, Inc., is a corporation with a principal office and place of business at 4150 Washington Road, McMurray, Pennsylvania and at all times hereinafter mentioned, a workplace in Beulah, North Dakota, and was engaged in sheet metal installation.

2. Respondent employs approximately 250 employees in its various business activities, including, at all times hereinafter mentioned, approximately 56 employees at the aforesaid workplace in Beulah, North Dakota. Respondent utilized goods, equipment and materials shipped from outside the state of North Dakota.

3. As a result of an inspection by an authorized representative of complainant, respondent was issued a citation for serious violations, a citation for willful violations, and a citation for other-than-serious violations together with proposed penalties, pursuant to section 9(a) of the Act. The citations and proposed penalties were received by respondent on October 24, 1983. On November 22, 1983, the Area Director received from respondent a notice of intent to contest item 1a of citation No. 2 for willful violations, the "willful" designation of item 1a and 1b of said citation, and the proposed penalty, which notice of contest was postmarked November 15, 1983. This notice was duly transmitted to the Occupational Safety and Health Review Commission.

4. On or about October 7, 1983, respondent was engaged in the installation of metal paneling inside an A-frame building being constructed for use at a coal gasification plant located at Beulah, North Dakota.

5. The A-frame in question is about 700 feet long and the interior rises to approximately 100 feet above ground level. A broad walkway runs the length of the building forming a second floor about 50 feet above ground level. About 40 feet above the second level the interior ceiling is fashioned by attaching metal panels to the underside of angle-iron strips attached to the individual structural A-frames and running horizontally on either side of the building approximately 53 inches apart. (Tr. 46-50; Ex. C-7, C-11)

6. Above the second floor was a floating platform which moved from one end of the building to the other suspended from rails, access to which was by a ladder welded to said platform. Mounted on the floating platform was a welded tubular scaffold, the upper unguarded platform surface of which was approximately 10 feet above the floor of the floating platform. Approximately 2 feet above this floating platform and its tubular scaffold were horizontal structural beams beneath which the floating platform would move. These beams crossed the building at about 30-foot intervals. Metal grate planking approximately 30 feet long rested on said horizontal beams forming "pick" scaffold about 26 inches wide which had no guardrails, notwithstanding slots along the sides of said planks were intended to accommodate guardrailing. (Tr. 50, 62, 63, 68, 69, 77, 109; Ex. C-3, C-7)

7. The ceiling being installed was about 7 feet above the "pick" scaffold, about 21 feet above the deck of the floating platform, and about 40 feet above the second floor level. (Ex. C-7)

8. In June of 1983, Charles Edwards, a compliance officer from the Occupational Safety and Health Administration (OSHA) visited the worksite. At that time employees of the respondent were working on the exterior of the A-frame building in question. Respondent was not at that time being inspected, but Mr. Edwards asked to and did talk with respondent's job superintendent, Ron DeMers. Although Mr. DeMers did not at that time appear to have yet given the matter much thought, Mr. Edwards suggested that in accomplishing work on this building, eyes could be welded to the vertical structural members at all levels, through which lifelines could be suspended and to which lifelines workers could tie off with lanyards. Also he suggested the use of safety nets to prevent employee falls and injuries. (Tr. 130, 137, 140, 155, 204) They also discussed the need for guardrails and fall protection on the various platforms on which respondent's employees would be working. (Tr. 163)

9. There was nothing to prevent eyes from being welded to the vertical structural members to support a static or lifeline, and there was a 5-foot space between the ceiling and building's peak, where such eyes could have been placed. (Tr. 167, 173)

10. Mr. DeMers eventually contemplated that in order to place the ceiling panels they would build the scaffold on the floating platform up to the work area and he so instructed the foremen. (Tr. 205, 206)

11. Chuck Schear was general foreman of the A-frame. They elected to utilize the plank system described hereafter rather than the built up scaffold system in order to avoid fatigue from constantly drilling overhead. (Tr. 209, 211)

12. Mike Danna was the foreman of the 5-man crew installing interior metal panels and flashing, and he brought the two pre-cut planks to Rod Giltrop and John Chase to use in placing the ceiling panels. (Tr. 103, 104, 123, 184) Mr. Giltrop was twenty-six and a journeyman ironworker; Mr. Chase was nineteen and an apprentice ironworker. (Tr. 98, 122)

13. The said two 2" x 12" x 52 1/4" planks were placed with their ends on the parallel angle-irons for purpose of forming a scaffold platform from which Mr. Giltrop worked in fastening the ceiling panels. This work commenced on Tuesday October 4, 1983. Access to the plank platform was by means of an 8-foot wooden ladder placed on the "pick" scaffold. (Tr. 50, 102, 112; Ex. C-7, C-11)

14. Mr. Chase would haul pre-cut metal panels from the floor up to the "pick" scaffold by use of a hand line. (Tr. 105) He would then hand a panel to Mr. Giltrop, sitting on one of the planks, who would C-clamp either end to the underside of the angle-irons. On the side above the "pick" scaffold Mr. Chase, working from the "pick" scaffold, would drill holes and screw fasten that end of the panel to the angle-iron. Mr. Giltrop, sitting on one of the planks, would drill holes and screw fasten the opposite end of the panel. (Tr. 63, 64)

15. Upon completing installation of a panel Mr. Giltrop would move one plank away from the work, then change his weight to that plank and move the other plank also from the work. In fastening a panel he would sit on the plank closest to the work. Wedges or gussets were welded into the angle-irons at intervals to provide strength and rigidity, and it was necessary to raise the ends of the planks over these gussets and reseat the plank into the angle-iron on the other side of the gusset. (Tr. 108, 115; Ex. C-11)

16. Mr. DeMers instructed "them" if they were going to complete the work in this fashion ". . . to keep the rolling platform underneath them and not get ahead of it or behind it." (Tr. 188) He observed Giltrop and Chase working on October 6, 1983, but didn't pay attention to the way they were tied off. (Tr. 194, 195)

17. The workmen on the project were cautioned by their foremen to "tie off," but they were not told to tie off to a secure point above their work which would support 5400 pounds. Mr. Giltrop and Mr. Chase tied off by looping a lanyard around the 2" x 12" wooden plank closest to the ceiling panel being installed and upon which plank Mr. Giltrop sat while doing his part of the work. Each of them wore a safety belt and fastened their lanyards to the lanyard looped around said plank. (Tr. 75, 76, 118, 119, 124; Ex. C- 7) This plank was not an anchorage or a structural member (Tr. 166, 198) nor could it have supported the weight of either Giltrop or Chase, had they fallen. (Tr. 78, 79, 80)

18. Chase could tie off to the lanyard looped around the plank only when he was working beneath it attaching a panel. He had to untie to obtain materials which took about one-fourth of his time, and during which time he had no fall protection. (Tr. 80, 105, 107)

19. While Giltrop and Chase installed ceiling panels, the balance of the crew working from the floating platform installed flashing, which moved more slowly. (Tr. 123)

20. Although Mr. Chase did not consider Mr. Giltrop to be a foreman, on October 7, 1983, by reason of the absence of Mike Danna, Rod Giltrop was foreman of the 5-man crew working at installing metal paneling and flashing inside the A-frame. (Tr. 126, 184, 221, 222)

21. On October 7, 1983, while in the act of moving the plank scaffold, the plank around which the lanyard was looped became dislodged from the angle-iron while passing one of the gussets and fell with Mr. Giltrop 40 feet to the second floor level. Mr. Chase was obtaining additional paneling at the time and was not tied off to the lanyard looped around the falling plank. The fall resulted in Mr. Giltrop's death. (Tr. 80, 81, 159, 165)

22. The respondent knew and approved of the tie-off procedure followed by Mr. Giltrop and Mr. Chase. (Tr. 198, 213, 225)

23. The respondent knew of the absence of guardrails on the "pick" scaffold and on the upper platform level of the welded tubular scaffold erected on the floating platform. (Tr. 180, 202, 206)

24. A fall from the plank scaffold at the ceiling of the A-frame would expose the person to a fall of 40 feet to the second floor level, or if the floating platform were beneath the plank scaffold, to a fall of 11 feet to the upper unguarded platform of the welded tubular scaffold and/or 10 additional feet to the floor of the floating platform, and would probably result in death or serious injuries. (Tr. 87, 88, 91, 92; Ex. C-7)

25. A fall from the "pick" scaffold would expose a person to a fall of approximately 32 feet to the second floor level, or if the floating platform had been beneath the person, either about 4 feet to the upper unguarded platform of the welded tubular scaffold and/or 10 additional feet to the floor of the floating platform and would probably result in death or serious injuries. (Tr. 59, 62; Ex. C-7)

26. The violations of the standards for which respondent was cited were serious and were willful in that respondent displayed a plain indifference to the requirements of the Act.

27. $6,500.00 is an appropriate sum to be imposed as a penalty for the violations found and those admitted herein. (Tr. 92, 93)

Discussion

Issue A: (item 1a)

To prove a violation of Section 5(a)(2) of the Act the complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD І 23,135 (No. 16057, 1978)

The standard at 29 C.F.R. ї 1926.104(b) provides:

As gratuitously pointed out at page 6 of respondent's post-hearing Brief:

Every employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or likely to cause death or serious physical injury, and the precautionary steps include the employer providing an adequate safety and training program. Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (1975).

Here the evidence is that although the employees were reminded to "tie off" they were not told in what manner or to what or where in relation to their work. Mr. DeMers, the project superintendent and ranking person on the job, considered Mr. Giltrop and Mr. Chase to be properly tied off. (Tr. 198) The general foreman of the A-frame, Mr. Schear, saw no reason for anyone to instruct Mr. Giltrop or Mr. Chase which plank to tie off to or not to move the plank to which they were tied off. (Tr. 213)

Having voluntarily elected not to utilize built-up scaffolding to reach and accomplish the installation of the ceiling panels, the only fall protection left to rely upon was either safety nets or lifelines. Safety nets were apparently not available since no anchor points were provided from which to suspend the nets. Although there were exposed structural members above the ceiling being installed, no eyes had been welded to them from which to support a lifeline. (Tr. 121) The "lifeline" to which Mr. Giltrop and Mr. Chase tied off was nothing more than a lanyard looped once around a 2" x 12" x 52 1/4" wooden plank lodged at either end on an angle-iron attached to the building's vertical members and upon which plank Mr. Giltrop sat for scaffold from which to accomplish his work at a level even with said plank.

The plank in question was not "above the point of operation" nor was it an "anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds." The looped lanyard was not "secured" at any point along said plank and at any given moment could have been subjected to maximum stress at any point along its length including either end where it rested on the angle-iron. Indeed, at the times the looped lanyard might be moved from plank to plank or at times when, as here, the plank around which the lanyard was looped was itself being moved past the gussets, the "lifeline" was not in any way "secured."

In utilizing lanyards ostensibly tied off to a "lifeline" respondent failed to meet the requirements of the standard at 29 C.F.R. ї 1926.104(b) and was in violation of item 1a of the citation.

Issue B:

Complainant produced evidence to the effect that 4 months before the accident one of its compliance officers advised respondent's project superintendent that lifelines run through eyes to be welded to vertical A-frame members could be utilized at various levels within the A-frame to provide fall protection. They also discussed safety nets and the need for guardrails.

Complainant further produced evidence to the effect that the general contractor on the job had supplied the respondent at the outset of its work with a safety booklet developed by the general contractor and satisfied itself that respondent's job superintendent was aware of the requirements of the rules and regulations pertaining to the use of lifelines and safety belts. (Tr. 160, 161, 162, 165)

Forethought or planning could have provided eyes welded to structural members from which to support lifelines or safety nets. Absent these the respondent could have built up the tubular scaffold on the floating platform to a height necessary to accomplish the work at the ceiling level. Inconvenience would have resulted in the dismantling and reassemble of that scaffold as the work proceeded past the various crossbeams along the length of the building, but respondent didn't use "inconvenience" as a reason for abandoning the built-up scaffold. Rather, respondent claimed to go to the movable wooden plank scaffold method in order to avoid the "fatigue" which would result from drilling and fastening overhead in working from a built-up scaffold. Little credence is given that testimony in view of the fact that Mr. Chase still accomplished his part of the drilling and fastening while standing on a plank beneath the ceiling and working above his head.

The respondent's job superintendent testified that although he planned that built-up scaffold would be utilized, he instructed "them" to keep the floating platform beneath them if they were going to accomplish the work in the manner they in fact did. This testimony is afforded little weight since that witness also testified that although he observed the method being followed in installing the ceiling panels he paid little attention to how the men were tied off. Further the ceiling panel installation proceeded at a faster pace than did the work accomplished from the floating platform and that disparity would have been accentuated on the day of the fatal accident by reason of the absence of the crew foreman, Mike Danna, who otherwise worked with the crew on the floating platform. If Mr. Chase were required to haul pre-cut ceiling panels from the floor to the "pick" scaffold he could not do so with the floating platform between him and the floor. Furthermore, the claim of the job superintendent that he instructed "them" to keep the floating platform beneath the men installing the ceiling panels is an acknowledgement that respondent was aware of the fall hazard to which said workers were precariously exposed.

No guardrails were attached to the "pick" scaffold notwithstanding that Mr. Chase worked from that planking without any fall protection approximately one-fourth of the time he was performing the ceiling work and despite the need for him to haul ceiling panels from the floor below by means of a line. That "floor" was either 14 feet or 32 feet below the metal grated plank on which he was standing without fall protection.

With respect to the absence of standard guardrails at the edges of the platform at the top of the tubular scaffold erected on the floating platform, respondent's evidence was to the effect that it was left off in order not to interfere with clearance of the floating platform in passing beneath the structural cross beams upon which the "pick" scaffold rested. The evidence was that Mr. Giltrop and Mr. Chase would gain access to their work stations from this unguarded platform. Respondent's evidence was that it cleared with the general contractor the non-use of guardrails on this platform since there were 6-inch pipes running lengthwise of the building to which workers on the platform could tie off. (Tr. 202) Thus respondent made a deliberate choice to disregard the requirements of the Act with respect to said guardrails on the platform.

Having earlier discussed the need for fall protection in the form of lifelines, safety nets and guardrails, respondent chose to treat such requirements lightly and demonstrated a plain indifference to the requirements of the Act and the safety of its employees. The course of conduct followed by respondent was conscious, intentional, deliberate and voluntary and falls well within the definition of "willful" followed by the Commission, to-wit: A willful violation is one involving voluntary actions done either with an intentional disregard of, or plain indifference to the requirements of the Act. F. X. Messina Construction Corp. v. Occupational Safety and Health Review Commission, 505 F.2d 701 (First Cir. 1974); Georgia Electric Company v. Secretary of Labor, 595 F.2d 309, (Fifth Cir., 1979). See also Kent Nowlin Const. v. Occupational Safety and Health Review Commission, 593 F.2d 368, 372 (10th Cir. 1979).

Issue C:

In arriving at a base penalty of $800.00 for the combined violations set forth in Citation No. 2, the complainant gave due and proper consideration to the gravity and serious nature of the offenses and the probability of serious injury to employees. The respondent then multiplied the proposed base penalty by a factor of 10 by reason of the "willful" characterization fitting the various offenses. (Tr. 92)

Complainant gave no consideration to the factors of size, good faith, or history which section 17(j) of the Act requires (Tr. 93), and upon giving such factors due consideration it is here found that a combined penalty in the sum of $6,500.00 is appropriate for these willful violations.

Now, having considered the pleadings, the representations and stipulations of counsel, the testimony of the witnesses and the exhibits received in evidence; and having observed the demeanor of the witnesses and having weighed the credibility thereof, and having considered the post-hearing briefs and filings of the parties and having herein above entered Findings of Fact -- there are here entered the following:

Conclusions of Law

1. Respondent is an employer within the meaning of the Act.

2. Respondent is engaged in a business affecting commerce.

3. The Commission has jurisdiction of the parties and of the subject matter of this proceeding as provided by section 10(c) of the Act.

4. Respondent was in violation of the standard at 29 C.F.R. ї 1926.104(b) and item 1a of Citation No. 2, issued to respondent October 19, 1983, should be affirmed.

5. Respondent was in violation of the standard at 29 C.F.R. ї 1926.451(a)(4) and item 1b of said Citation No. 2 should be affirmed.

6. The violation referred to in paragraph 4 of these conclusions of law was serious and willful.

7. The violation referred to in paragraph 5 of these conclusions of law was serious and willful.

8. The sum of $6,500.00 is an appropriate total combined penalty for the violations found herein and should be assessed.

ORDER

1. Item 1a of Citation No. 2, issued to respondent October 19, 1983, is AFFIRMED as a serious and willful violation of Section 5(a)(2) of the Act.

2. Item 1b of said Citation No. 2 is AFFIRMED as a serious and willful violation of Section 5(a)(2) of the Act.

3. A total combined penalty of $6,500.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: August 14, 1984

FOOTNOTES:

[[1]] The testimony of employee Chase suggests, however, that the plank could have come loose if, when Giltrop moved to another plank his lanyard were to tug on the plank. We need not resolve this point.

[[1]] The items of the Citation read:

1a. 29 CFR 1926.104(b): Lifelines were not secured above the point of operation to an anchorage or structural member:

(a) On or about October 7, 1983, in the A-Frame of the coal handling facility, where an employee was tied off by means of a lanyard to an unsecured wooden plank located below the point of operation.
(b) On or about October 7, 1983, in the A-Frame of the coal handling facility, where an employee working on a "pick" scaffold was tied off to an unsecured wooden plank.

1b. 29 CFR 1926.451(a)(4): Standard guardrails and toeboards not installed on all open sides and ends of platforms more than 10 feet above the ground or floor:

(a) On or about October 7, 1983, at the upper level of the rail-suspended scaffold in the A-Frame of the coal handling facility.
(b) On or about October 7, 1983, on the "pick" scaffold being used near the top of the A-Frame in the coal handling facility.