Docket No. 87-0008

SECRETARY OF LABOR,

Complainant,

E. L. JONES AND SON, INC.,

Respondent.

OSHRC Docket No. 87-0008

DECISION

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

BY THE COMMISSION:

A decision of Administrative Law Judge Stanley M. Schwartz is before the Commission for review pursuant to section 12(j), 29 U.S.C. ї 661(j), of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). Judge Schwartz found that the Secretary of Labor ("the Secretary") failed to establish that the Respondent, E. L. Jones and Son, Inc. ("Jones"),[[1/]] willfully violated section 5(a)(2) of the Act 29 U.S.C. ї 654(a)(2), but did establish that Jones was in serious violation of the Act. The judge assessed a penalty of $1,000. We affirm the judge's decision.

I. Background

Jones was the general contractor at an office building project in Irving, Texas. The project consisted of three concrete buildings designated A, B and C. Buildings A and B have two floors, and Building C has three floors. In addition, each building has a subterranean level. The buildings were constructed with an elevator shaft opening in each of the floors. On the morning of Tuesday, July 22, 1986, an employee of AISTEX, one of Jones' subcontractors, suffered fatal injuries when he fell 35 feet through an unguarded elevator shaft floor opening on the third floor of Building C. As a result of the fatality, a representative of the Secretary conducted an inspection and subsequently issued a citation alleging that Jones had committed a willful violation of 29 C.F.R ї 1926.500(b)(1).[[2/]]

Jones does not dispute that on the morning of the fatality, the 17 feet long by 7 feet 1-inch wide floor opening was unguarded. It further concedes that this condition violated the cited standard, that it was responsible for guarding the opening, and that two of its own employees had access to the opening. Jones contends, however, that it did not know that the floor opening was unguarded.

The elevator shaft opening at issue had been kept covered by Jones' concrete subcontractor, Capform, until it completed its work and left the site a few days before the accident. This appears to have been the only time any of the floor openings in the three buildings were left unguarded. Jones and Capform had previously arranged the work so that the shafts were always guarded. Whether Jones knew that the floor opening was unguarded was hotly disputed by the witnesses.

The testimony of Timothy Berry, Frank Maras, and Greg Lyons supported Jones's position that it lacked knowledge of the unguarded opening. Berry, the general superintendent for Jones, testified that the guardrails were not in place on the third floor of Building C on July 22 because Jones' supervisory personnel had assumed that Capform had left the openings covered. He described his experience with Capform prior to the fatality as follows: "The shafts all the way through Building A and Building B were protected at all times, whether with Capform's protective covering or by rails" and "never did Capform ever leave a hazardous situation. This was the first time." Berry testified that Capform had never advised him or any other Jones supervisor that they had completed work on Building C. Berry also testified that Capform coordinated the protection of the elevator shafts with Frank Maras, Jones' site superintendent, who shared the safety and health responsibilities with Berry.

Maras stated that prior to the accident, he was not advised by any of the subcontractors or Jones' employees that the shaftway on the third floor was unguarded. He testified that at a July 15 meeting, Dale Downs, the foreman for Capform, told him that when Capform opened the elevator shafts "a little bit later," Jones would have to take care of providing protection. Maras testified that had Downs told him when Capform was leaving the site, he would have made sure that the guardrails were up when the cover was removed.

Greg Lyons, a field engineer for Jones, was in charge of the worksite while Maras was on vacation from Thursday, July 17, through Sunday, July 20. Lyons was unaware, until the accident, that the shaft opening was not guarded. He assumed that when Capform finished their work on the third floor, they would leave the protective covering over the opening.

The Secretary relied on the testimony of Brad Scheckelhoff, Donald Lehman, Dale Downs, Billy M. Bird and Timm Nichols to support her position that Jones knew of the unguarded opening. Brad Scheckelhoff and Donald Lehman, two of Jones' carpenters, testified that on the Monday before the accident, they walked by the uncovered elevator shaft on the third floor of Building C. They did not tell Jones' management about the open shaft because they did not feel endangered by it and did not think it, was a hazard.

Dale Downs, the foreman for Capform, testified that Capform advised Jones in advance that it was going to take the protective material off the elevator shaft on the third floor of Building C. He testified that he told Jones' field superintendent three times that Capform would be leaving and that Jones should put up guardrails around the shaft opening, but that Jones failed to put up the guardrails.[[3/]] Downs testified that at their last meeting on the day Capform left the job site, he told the superintendent that Jones had already "had enough time to get the handrails up" and that Capform "was going to take the rest of the material off of the elevator shaft and load it on the last truck."

Billy M. Bird, of Bird Mechanical, testified that he discovered that the elevator shaft on the third floor was unguarded on the Friday before the accident, after one of his employees almost fell into the shaft. Bird ordered his employees off of the floor, and reported the exposed shaftway to someone at Jones, possibly Frank Maras. Timm Nichols, an employee of Ragsdale Sheet Metal, testified that on Friday, July 18, he told a Jones employee, probably Greg Lyons, that both he and one of Bird's employees "almost walked into that hole," and that Jones needed "to get that thing covered up before somebody does (walk into it)."

II. Judge's Decision

The Judge affirmed a serious violation. He found that Jones could have known of the exposed shaftway with the exercise of reasonable diligence. He based his finding on the testimony of Scheckelhoff and Lehman, who observed the exposed shaftway on the Monday before the accident but did not report it to Jones' management because they did not feel it endangered them. The judge held that the testimony of these two employees demonstrated that Jones' hazard recognition and safety program was inadequate, and that reasonable diligence required a more effective safety program for the discovery and correction of such a violation. He assessed a $1,000 penalty.

The judge vacated the willful characterization. He found that the testimony of the Secretary's witnesses and Jones' witnesses was in direct conflict on the question of whether Jones consciously disregarded the standard. The judge resolved the conflicting testimony by finding that Jones' witnesses "were extremely convincing" and "responded forthrightly and candidly when questioned about their knowledge of the unguarded shaft." He also found that the "demeanor [they] displayed on the witness stand added to their credibility." Additionally, he found "fully credible" their testimony that "if they had known, they would have corrected the hazard" because "[t]his action would have been completely consistent with their past practices at the jobsite." The judge did not discuss the credibility of the Secretary's witnesses. He concluded that "based upon the record evidence and [his] observation of the witnesses," Jones did not consciously disregard the applicable standards.

III. Analysis

A. Credibility Findings

The Secretary acknowledges that the policy of the Commission ordinarily is to accept a judge's evaluation of the credibility of witnesses because it is the judge who has "lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD І 22,481, p. 27,099 (No. 14249, 1978). Here, the Secretary argues that the Commission should not defer to the judge's credibility findding because the judge only discussed why he found Jones' witnesses to be credible, and did not discuss the credibility of the Secretary's witnesses.[[4/]] The Secretary cites P & Z Co., 6 BNA OSHC 1189, 1977-78 CCH OSHD І22,413 (No. 76-431, 1977), and Asplundh Tree Expert Company, 7 BNA OSHC 2074, 1980 CCH OSHD І 24,147 (NO. 16162, 1979) as support for her argument.

In P & Z, the Commission found unacceptable the judge's "wholesale rejection of unnamed witnesses' testimony under the color of a credibility evaluation without any explanation for its rejection." 6 BNA OSHC at 1192, 1977-78 CCH OSHD at p. 27, 024. The Commission held that when a judge makes a creditibility finding, "reasons must be given for crediting the testimony of one witness over that of another or for failing to credit a witness whose testimony is neither contradicted nor impeached." Id. emphasis added). Thus, if reasons are given for crediting the testimony of one witness, then reasons need not to given for failing to credit a witness whose testimony is contradictory. The Commission also held that "[c]redibility findings shall be accompanied by summaries of pertinet testimony and reasons for crediting the testimony." Id.

Here, the judge did not explain in detail why he did not find the testimony of the Secretary's witnesses to be credible. However, the judge's reasons for finding Jones' witnesses to be credible were based on testimony that describes Jones' and Capform's prior practice of jointly guarding elevator shafts. The judge rejected, at least implicitly, only the testimony of the Secretary's witnesses' that was contradicted by Jones' witnesses.[[5/]]

The critical question the judge had to resolve was whether Jones' supervisors knew that the opening was unguarded. The testimony of the Secretary's witnesses and Jones' witnesses on this point is largely conflicting. In her brief to the Commission, the Secretary has highlighted testimony that the judge did not specifically refer to in his decision. Some of this testimony provides support for the Secretary's contention that Jones knew that the opening was unguarded before the accident. Other testimony supports Jones' claim that it did not learn of the unguarded opening until the accident occurred. It is clear that the judge's credibility findings rested on matters peculiarly observabIe by him --- the witnesses' demeanor on the stand and their manner of responding on cross-examination.[[6/]] Although the testimony is certainly contradictory, and the judge's findings could have been more detailed, we cannot say that the judge erred in crediting the testimony of Jones' witnesses over that of the Secretary's. The Secretary has succeeded in showing the wide disparity between the testimony of Jones' witnesses and the testimony of the Secretary's witnesses on the key issue of knowledge. However, she has failed to demonstrate why we should overturn the judge's determination of the credibility of Jones' witnesses, and our review of the record indicates there is no adequate basis for doing so. Accordingly, we accept the judge's credibility finding. See, e.g., United States Steel Corp., 9 BNA OSHC 1641, 1644, 1981 CCH OSHD І 25,282, pp. 31,251-52 (No. 76-5007, 1981) (judge's credibility finding will be upheld where opposing party does not demonstrate reasons why it should be reversed and Commission's review of record indicates there is no basis for doing so); Inland Steel Co., 12 BNA OSHC 1968, 1978, 1982, 1986 CCH OSHD І 27,647, pp. 36,005 & 36,009 (No. 79-3286, 1986) (Commission normally accepts judge's credibility evaluations).

B. Willfulness

We now turn to the issue of whether Jones' failure to guard the opening was willful. A violation of the Act is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety." Simplex Time Recorder.Co., 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD І 27,456, p. 35,571 (No. 82-12, 1985). Trial of the issue of willfulness focuses on the employer's state of mind and general attitude toward employee safety to a greater extent than would trial of a non-willful violation. Seward Motor Freight, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD І 28,506, p. 37,787 (No. 86-1691, 1989) In Williams Enterprises, Inc., 13 BNA OSHC 1249, 1691, 1989). In Williams Enterprises, Inc., BNA OSHC 1249,1986-87 CCH OSHD І 27,893 (No. 85-255, 1987), the Commission held:

It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting a violation; such evidence is necessary to establish any violation, serious or nonserious. . . . A willful violation is differentiated by a heightened awareness----of the illegality of the conduct or conditions and by a state of mind----conscious disregard or plain indifference . . . . It is therefore not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation Williams, 13 BNA OSHC at 1256-57, 1986-87 CCH OSHD at p. 36,589.[[7/]]

Thus, under Williams, the Secretary must prove that Jones', management either knew of the non-compliant conditions or that Jones' efforts to discover the condition was so inadequate as to constitute careless disregard for employee safety. Since we do not disturb the judge's finding that Jones's management did not know of the exposed shaftway, we find no evidence that the failure to guard the opening demonstrated intentional disregard of the Act on the part of Jones.

We also conclude that Jones could have discovered the unguarded opening with the exercise of reasonable diligence. However, this lack of diligence in discovering the violation is not properly characterized as willful. See Marmon Group Inc., 11 BNA OSHC 2090, 1984 CCH OSHD І 26,975 (No. 79-5363, 1984), and cases cited therein. The evidence establishes that prior to the fatality, Capform and Jones had always coordinated Capform's removal of its coverings with Jones' erection of guardrails around the elevator floor openings. Until the protective covering was removed a few days before the accident on July 22, the openings had been guarded in all three buildings after Jones took control. In addition, the evidence establishes that Jones' field superintendent Maras usually conducted a daily inspection of the site during which he looked for safety problems. Maras was on vacation the Thursday and Friday before the fatality and Lyons, his replacement, did not seem to be aware of the duty to inspect the site. On Monday, July 21, the day before the accident, Maras returned to work, but he did not conduct his regular inspection because he had to meet with the police concerning a break-in. Clearly, Lyons and Maras could have been more diligent in inspecting the worksite for safety hazards. However, we cannot conclude that Jones' failure to discover the unguarded floor openings demonstrated plain indifference to employee safety. We therefore find that the violation was not shown to be willful.

C. Seriousness

Our finding that Jones failed to exercise reasonable diligence does, however, establish that Jones had constructive knowledge of the violation. Jones has argued that it cannot be cited for a serious violation because it did not have actual knowledge of the violation. However, the Secretary meets her burden of proving knowledge by establishing that an employer knew or, with the exercise of reasonable diligence, could have known of the violative condition. Monarch Water Systems, 12 BNA OSHC 1897, 1898, 1986-87 CCH OSHD І 27,632 at p. 35,932 (No. 83-943, 1986). The seriousness of the violation under section 17(k) of the Act, 29 U.S.C. ї 666(k), is demonstrated by the death of the employee. See Simplex Time Recorder Co., 12 BNA OSHC at 1597, 1984-85 CCH OSHD at p. 35,572 (No. 82-12, 1985).

D. Penalty

In assessing a penalty for a violation of the Act, the Commission must give due consideration to the size of Jones' business, the gravity of the violation, Jones' good faith, and its history of previous violations. Section 17(j) of the Act, 29 U.S.C. ї 666(j). Having considered the statutory criteria, we agree with the judge's determination that a $1,000 penalty is appropriate.

IV. Order

Accordingly, we affirm a serious violation of 29 C.F.R. ї 1926.500(b)(1). A penalty of $1,000 is assessed.

Edwin G. Foulke, Jr.

Chairman
Velma Montoya

Commissioner
Donald G. Wiseman

Commissioner

Dated: March 18, 1991

SECRETARY OF LABOR,

Complainant

E. L. JONES AND SON, INC.,

Respondent

OSHRC DOCKET NO. 87-0003

Appearances: Bobbie J. Gannaway, Esq.
Dallas, Texas
For the Complainant

Steven R. McCown, Esq.
Dallas, Texas
For the Respondent

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Cornmission") pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. ї651 et seq. ("the Act"). Respondent contests an alleged willful violation of 29 C.F.R. 1926.500(b)(1). A penalty of $6,000 was proposed for the alleged willful violation.

An inspection was conducted at Respondent's workplace in July and August 1986. E. L. Jones timely contested the subject citation. A hearing was held on July 29-30, 1987 and September 9, 1987, in Dallas, Texas. No additional persons desired to intervene in this matter.

The citation provides as follows:

29 C.F.R. 1926.500(b)(1): Floor openings were not guarded by standard railings and toeboards or covers as specified in paragraph(8) of this section:

a) Employees exposed to the hazard of falling 35 feet through an unguarded elevator shaft, 17 feet long and seven (7) feet, one (1) inch wide, located at the Walnut-Story Office building construction site, Irving, Texas, Building C, 3rd floor.

This condition occurred on or prior to July 22, 1986.

Respondent does not dispute that 29 C.F.R. 1926.500(b)(1) applies, noncompliance occurred, and employees had access. E. L. Jones does contend that it lacked knowledge of the violative condition and that any violation, if found, was not of a willful nature.

A violation of the Act is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety." Simplex Time Recorder Co., 85 OSHRC ____ 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, 943 (No. 79-3831, 1984). I find that the record does not show such disregard, indifference and recklessness. Respondent know of the applicable standard, but did not consciously disregard the standard. My conclusion is based on an analysis of the testimony of several witnesses and on specific credibility determinations explained below.

E. L. Jones was the general contractor at the Walnut-Story office building project. It consisted of three concrete construction building. Buildings A and B were two-story office buildings. Building C had three stories. Each had a parking garage or basement underneath. On July 22, 1986, an employee of a drywall contractor fell through an open elevator shaft to his death. The shaft was not guarded by either guardrails or any covering. (Complainant and Respondent briefs).

Respondent, as noted above, knew of the applicable standard. In fact E. L. Jones' standard practice it the jobsite was to protect elevator shaft openings by erecting guardrails or placing lumber over the shaft opening. This procedure was a cooperative effort with Capform, the forming contractor. Up until the accident on July 22, 1987, all shafts had been protected. The basic question is whether E. L. Jones consciously disregarded 29 C.F.R. 1926.500(b)(1) in this case. The testimony is directly in conflict on this question.

The Secretary relies on four workers to establish conscious disregard by E. L. Jones of the applicable standard. The workers are all associated with three subcontractors. They testified that E. L. Jones management was told prior to the accident that the elevator shaft opening was not guarded. Respondent called three management officials who acknowledged discussions about the shafts coming open but who denied they were told the shaft in building C had, in fact been left uncovered by Capform.

E. L. Jones' witnesses were its general superintendent, field superintendent, and field engineer. These witnesses were extremely convincing. They responded forthrightly and candidly when questioned on the witness stand added to their credibility. In addition, I find fully credible their statements that if they had known, they would have corrected the hazard. This action would have been completely consistent with their past practices at the jobsite. The standard practice had been to erect guardrails around every open shaft to protect workers. Guardrails removed by other contractors had also been replaced. The procedure was done in conjunction and with the complete cooperation of Capform, the forming contractor. All contractors agreed that prior to the subject hazard, there had been no previous difficulty with E. L. Jones regarding guardrails or covering of the open elevator shafts. For these reasons I find Respondent's witnesses fully credible when they state a lack of knowledge that Capform pulled off the job and left the hole uncovered. If aware, as noted above, I conclude E. L. Jones would have taken the few minutes to protect the opening as they had done consistently throughout the project. Therefore, based upon the record evidence and the observation of the witnesses, I find that E. L. Jones did not consciously disregard the applicable standard. The characterization of the violation as willful is vacated.

Since the Secretary alleged the violation was willful in nature but failed to establish willfulness, it must now be determined whether to affirm the violation as serious or other than serious in nature. Respondent contends the Secretary has failed to prove that any knowledge existed of the violative condition.

It is the Secretary's burden to establish the employer knew or, with the exercise of reasonable diligence, could have known of the violative condition. See Monarch Water Systems Inc., 86 OSAHRC _____ 12 BNA OSHC 1897 1398, 1986 CCH OSHD І27,632 p. 35,932 (No. 83-943, 1986). As to actual Knowledge, as noted above, no evidence exists that Respondent's management knew of the unguarded shaft. The question remains whether there is sufficient evidence to conclude that Respondent could have known, with the exercise of reasonable diligence.

There is no question that the shaft was uncovered for at least on entire workday prior to the accident. Two of Respondent's own employees observed the condition. They walked by it but fail to report the condition. The two employees felt comfortable ignoring an open 17' x 7'1" opening with a fall of over 35' because no work was being performed in the area. Respondent testified about its hazard recognition and safety program. However, based upon the testimony of these two employees, I find that the program was inadequate. Reasonable diligence required a more effective program to emphasize the danger of such a hazard regardless of whether work was actually being performed. These employees lacked basic direction. The fact that they were not supervisors cannot absolve Respondent from the lesser charge of a serious violation. Respondent failed to detect and discover a basic safety violation. Reasonable diligence required a stronger inspection system to detect violations especially when employees felt free to ignore the hazard involved in this case. Lack of conscious disregard and lack of reasonable diligence are separate and distinct requirements of the Act. For the reasons stated above, I conclude that Respondent failed to exercise reasonable diligence to detect the unguarded elevator shaft under the circumstances of this case.

I now turn to the assessment of an appropriate penalty. The Walnut-Story project cost $8,000,000. At the same time Respondent was involved in a larger project constructing an eleven story control tower at DFW Airport. The overriding consideration is the high gravity of the violation. Several employees were exposed to the hazard of falling through an open elevator shaft. The duration of the exposure was long enough for one employee to fall to his death. There was a high probability that a serious injury could occur. On balance, I conclude that a penalty of $1,000 is appropriate in light of the record and the statutory criteria set forth in Section 17(j) of the Act.

CONCLUSIONS OF LAW

1. Respondent, E. L. Jones and Son 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 this proceeding.

2. On July 21 and 22, 1986, Respondent was not in willful violation of 29 C.F.R. 1926.500(b)(1).

3. On July 21 and 22, 1986, Respondent was in violation of 29 C.F.R. 1926.500(b)(1).

ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Item 1(a) Willful citation 1 is affirmed as a serious violation and a penalty of $1,000 is assessed.

STANLEY M. SCHWARTZ

Administrative Law Judge
Date: February 12, 1988

FOOTNOTES:
[[1/]] E.L. Jones and Son, Incorporated, is based in Dallas, Texas, and is now known as the Doyle Company.

[[2/]] Section 1926.500(b)(1) provides:
ї 1926.500 Guardrails, handrails, and covers.
(b) guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general , the railing shall be provided on all exposed sides, except at entrances to stairways.

[[3/]]Downs testified that he had meetings with Maras on July 8th, July 14th and the evening of July 15th. He believes the conversations about the exposed elevator shafts took place on these three days.

[[5/]] The Secretary also argues that "[t]he judge must specify the particular aspects of the demeanor or testimony of the witnesses that led him to conclude that they were not credible," citing Asplundh Tree Expert Company, 7 BNA OSHC 2074, 1978 CCH OSHD І 23,033 (No. 16162, 1979). In Asplundh, the judge rejected the testimony of four employer witnesses on the basis of a minor discrepancy with the testimony of the compliance officer, a discrepancy that the Commission felt could have been due to an honest misunderstanding. 7 BNA OSHC at 2079, 1978 CCH OSHD at p. 27,841. The Commission faulted the judge for failing "to specify any attribute of the demeanor of the witnesses or any part of their testimony that would warrant the rejection of the entire testimony of respondent's four witnesses." Id. Thus, like P & Z, Asplundh holds that a judge cannot simply reject testimony that is facially worthy of belief on the basis that witnesses are "not credible." However, the case now before us involves a different type of situation. Here the judge did not reject all of the Secretary's witnesses' testimony, only that part which was contradicted by the testimony of Jones' witnesses regarding Jones' actual knowledge of the open elevator shaft.

[[6/]] Indeed, had the judge gone on to specifically find the Secretary's witnesses not credible, he might have run afoul of the Commission's statement in C. Kaufman that a judge should "avoid discussions that will unnecessarily impugn the character of a witness." 6 BNA OSHC 1298, 1977-78 CCH OSHD at p. 27,102, n.8.

[[7/]] The Fifth Circuit, in whose jurisdiction this worksite is located, held that "[t]o prove a willful violation, the Secretary must show that the employer acted voluntarily, with either intentional disregard of or plain indifference to OSHA requirements." Georgia Electric Co. v. Marshall, 595 F.2d 309, 318 (5th Cir., 1979). The Fifth Circuit added in a footnote that "[t]his of course does not mean that every act consciously done is done willfully. The 'extra ingredient' needed for willfulness is either the element of intentional disregard or plain indifference." Id., 595 F.2d at 818, n.22. The D.C. Circuit cited the Fifth Circuit's Georgia Electric decision regarding willfulness when the D.C. Circuit held that "courts have unanimously held that a willful violation of the Act constitutes 'an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements.'" Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422 (D.C. Cir, 1983).