UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16162
ASPLUNDH TREE EXPERT COMPANY,
Respondent.

September 14, 1978

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BARNAKO, Commissioner:

The Secretary of Labor cited Respondent (Asplundh) for allegedly violating the construction safety standard at 29 C.F.R. 1926.556(b)(2)(v) because one of its employees failed to wear a body belt while working in an aerial lift basket. Prior to trial, and over Asplundh’s objection, Judge Vernon Riehl permitted the Secretary to amend the citation to allege that the same set of facts violated the general industry standard at 29 C.F.R. 1910.67(c)(2)(v)[1] . Judge Riehl affirmed the citation as amended. The issues on review are whether the Judge erred in allowing the amendment, and whether the Judge properly rejected Asplundh’s argument that the violation resulted from unpreventable employee misconduct. We agree that the Judge properly allowed the amendment, but, by a divided vote, reverse and remand for the Judge to make further findings and reconsider his decision on the preventability question.

OSHA compliance officer Strobach observed Asplundh’s foreman Anderson using an aerial lift to trim trees away from utility lines on a street near the University of Missouri campus in Rolla, Missouri. Anderson, who was working from a four foot high square fiberglass bucket that was approximately 25 feet in the air, was using a pole with a rotating saw at the end. At times he was reaching out of the bucket. Strobach thought that Anderson did not have a safety belt on, but he was not certain. After Strobach identified himself, an employee yelled to Anderson, who was in charge of a four man crew, to come down. When the basket of the lift came down. Strobach observed that although a belt was in the basket, Anderson was not wearing one. Strobach asked Anderson whether he had worn his body belt, to which, according to Strobach, Anderson replied, ‘No. I never wear it.’ On cross examination, Strobach stated he was ‘pretty sure’ he asked Anderson if it was company policy to wear safety belts, and he recalled that Anderson was aware of such a policy. Strobach testified that he did not probe why Anderson violated company policy.

Anderson testified that on the day of the cited violation the company truck was parked on a narrow two lane street near the entrance of the university and blocked one lane of traffic. He stated that he was hurrying to finish cutting the last few trees because university classes were getting out for lunch break and the traffic flow was increasing. Anderson said that he had his safety belt on for most trees on this job but that in hurrying to finish the last few trees he forgot to put on the belt. He stated that it took approximately 15 seconds to put on the safety belt, that the belt did not impede him on the job, and that the company was not pressuring him to get the job done. Anderson testified that he was asked by Strobach whether he had his safety belt on and he answered no, saying he was not wearing it at the time; he denied saying to Strobach that he never wore his belt.

Anderson stated that he usually wore a safety belt because it is strict company policy to require belt usage. When he was a foreman, Anderson instructed his men to wear safety belts, and he never authorized anyone not to use belts. On direct examination Anderson testified that as foreman he had caught men without a belt in very rare instances and ‘chewed’ them out for not wearing it. However, on cross examination, he said that he had seen men working without safety belts only one or two times in his four year experience with the company, but that he was not in charge when these incidents occurred. At first Anderson said that these employees were given time off for not wearing belts, but he later stated that he was not sure what happened to these men, and that he did not know of any employee being disciplined or demoted for not wearing a belt.

Ashworth, a tree trimmer with one year’s experience, said that he overheard Anderson’s conversation with Strobach at a distance of three to five feet and could hear everything clearly, although it was possible that conversation occurred between the two when he was not present. He heard Strobach ask Anderson whether he wore a belt, to which Anderson said no. Ashworth did not hear Anderson say he never wore a belt. Ashworth said that except for the cited violation he had never seen Anderson or any other Asplundh employee fail to wear a safety belt, and that on the date of the violation he saw Anderson wear his belt at times.

Robert Herder, who has served as Asplundh’s vice president for safety since 1955, stated that his company requires the use of body belts by employees in aerial lifts. This policy is outlined in Asplundh’s foreman’s manual, which is sent to every crew in the field, a safety poster and cover letter, which is distributed monthly to the general foreman for each crew, a safety ‘do and don’t’ list, which is mounted on every lift in the company and is discussed during safety meetings, and a safety instruction booklet, which is given to every employee. Asplundh also requires every foreman to conduct weekly safety meetings, which are about 15 minutes long. Herder testified that employees who persisted in not using the body belt would be let go, although nobody had been discharged in the past for this reason. Anderson, however, had been demoted from his job as foreman for violating the body belt policy.

Herder testified that Asplundh’s safety program predated OSHA, no employee had ever been injured by falling from buckets, and Anderson had never given him any trouble before the citation. It was Herder’s policy to write memos to the general foreman and the particular foreman involved when he is advised of safety violations. However, Herder has never issued written memos regarding body belt violations, since the only way he has known of such violations was by personally observing them. He dealt with those situations by means of oral reprimands.

Allen Pewitt, a general foreman for Asplundh with 15 years’ experience, was Anderson’s superior. Pewitt demoted Anderson from foreman to tree trimmer, which included a cut in pay, because of the incident which led to the citation. Pewitt stated that he visits his crews about twice a month, that he had never seen Anderson fail to wear a body belt, and that he had never known Anderson to violate company rules. Pewitt said that it is a company rule to give a stern oral or written reprimand for the first belt violation and to discharge an employee for the second violation. While he found three to five violations of the belt rule over a period of years, Pewitt stated that he has never caught anyone twice.

Before reaching the merits, Judge Riehl ruled that the Secretary’s amendment of the citation was proper. He noted that there was no prejudice resulting from the amendment as the wording of the two standards is identical and the factual allegations of the citation remained unchanged. Asplundh continues to argue on review that the amendment should not have been allowed, relying on an unreviewed, and therefore non-precedential, administrative law judge’s decision in Keibler Industries, Inc., 73 OSAHRC 30/F12, 1 BNA OSHC 3074, 1971–73 CCH OSHD para. 16,234 (No. 1689, 1973). We conclude that the Judge properly decided the issue for the reasons he assigned. Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977); Southern Colorado Prestress Company, 76 OSAHRC 1⅞, 4 BNA OSHC 1638, 1976–77 CCH OSHD para. 21,034 (No. 3035, 1976), petition for review filed, No. 76–1974 (10th Cir. Oct. 26, 1976).

As to the merits, the Judge concluded that Asplundh had a comprehensive safety program ‘on paper’ but that in practice the program was inadequately enforced. In reaching this conclusion, the Judge noted that there was conflicting evidence whether Anderson had told Strobach that he never wore a belt, and he made a specific credibility finding that Anderson did make the disputed statement. The Judge observed that when a foreman knowingly violates a company policy, it is strong evidence that implementation of that policy is lax, citing National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1267, n. 38 (D. C. Cir. 1973). Judge Riehl also noted that Herder, the company’s vice-president for safety, had seen employees not wearing belts, and he concluded that this indicated that violations of the rule occurred on a consistent basis because employees would be more conscious of following work and safety rules ‘when their boss is on the job.’ Additionally, the Judge cited the facts that Herder had never issued a written memo and that no employee had ever been discharged for body belt violations as evidence of lax enforcement of safety rules.

Asplundh argues that Judge Riehl’s finding its safety program was inadequate is contrary to the preponderance of the evidence. Asplundh contends that the Judge did not consider the entire record in reaching his decision, pointing out that the Judge did not mention or discuss evidence of favorable aspects of its safety program. Asplundh also asserts that Judge Riehl took evidence out of context to create a meaning contrary to the record. It points out that Judge Riehl in his summation of facts stated that Herder admitted he never issued a written memo regarding safety violations when in fact Herder said that he had never issued a memo concerning body belt violations. Asplundh contends that Judge Riehl erroneously concluded that ‘apparently the (safety belt) violations were on a consistent basis’ when the testimony of Herder, Anderson and Pewitt indicated that violations were infrequent. Another error assigned by Asplundh is that Judge Riehl failed to indicate why he found Strobach’s testimony more credible than Anderson’s and Ashworth’s concerning whether Anderson said he never wears safety belts, and that Judge Riehl in fact ignored Ashworth’s testimony. Asplundh concludes that the record compels the finding that it has done all it could to require use of the body belt, and that the violation therefore was unpreventable.

In Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975–76 CCH OSHD para. 20,167 (No. 5811, 1975), opinion withdrawn and rehearing granted, No. 76–1060 (4th Cir., Oct. 26, 1977), the Commission held that, although an employer is normally responsible for violations committed by its supervisory personnel, the employer can defend by showing that it took all necessary precautions to prevent the occurrence of the violation. The employer must show that it established work rules designed to prevent the violation, adequately communicated these rules to its employees, took steps to discover if violations of these rules occurred, and effectively enforced the rules when violations were discovered. See also Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD para. 22,668 (No. 13266, 1978).

Commissioner Cottine and I agree with Asplundh’s contention that the Judge’s decision concerning the effectiveness of Asplundh’s safety program is inadequate. The Commission will normally defer to a Judge’s credibility findings.[2] The Judge, however, must fairly consider the entire record and must adequately explain his findings.[3] It is not sufficient for the Judge to merely state his ultimate findings and conclusions; he must set forth sufficiently detailed findings and reasons to assist the Commission in fulfilling its role as the ultimate finder of fact.[4]

In a case where the evidence permits only one result, the Commission can make the necessary findings without the Judge’s assistance.[5] But this is not such a case. The critical issue is whether Asplundh effectively enforced its rule requiring the use of body belts. The testimony of Herder, Pewitt, and Ashworth tends to indicate that violations of this rule were infrequent and never by the same employee, and that the few violations which were discovered[6] were met with verbal reprimands. Although no further disciplinary steps had ever been taken, if the violations were indeed as infrequent as Asplundh’s witnesses claimed, then the need for more drastic discipline did not arise, and the failure to take further disciplinary steps does not reflect adversely on Asplundh’s safety program.

The only evidence tending to show that violations of the rule occurred frequently was Strobach’s testimony that Anderson told him he never wore his body belt. Judge Riehl states that Strobach was a more credible witness than Anderson, and he therefore finds that Anderson did make the statement. But the Judge does not even mention the testimony of Ashworth, who said that he did not hear Anderson make the statement and that it was Anderson’s consistent practice to use his belt, and Pewitt, who testified that he had never seen Anderson without his belt, and had never known Anderson to violate company rules. Moreover, the Judge did not consider whether the fact Strobach was a credible witness necessarily meant that his recitation of his conversation with Anderson represented an accurate picture of Anderson’s practices. Even though Strobach could testify as to what Anderson purportedly told him (Fed. R. Evid. 801(d)(2)), there is always the possibility that one party to a conversation will misunderstand statements made by the other. Thus, even if Strobach honestly believed that he was accurately relating what Anderson told him, there nevertheless exists the possibility that Strobach misunderstood what Anderson said. The possibility of such a misunderstanding is enhanced by certain circumstances present in this case: the statement was brief, was not responsive to the question Anderson was asked, and Strobach did not ask for nor did Anderson offer any further explanation.

In view of the Judge’s failure to consider the entire record, we do not accept the Judge’s conclusion that Asplundh’s safety program was inadequate. We cannot, however, resolve the issue without specific findings by the Judge concerning whether Ashworth, Pewitt, and Herder were credible witnesses. We therefore remand the case and instruct the Judge to make specific findings on the question whether violations of Asplundh’s body belt rule were in fact as infrequent as claimed by Ashworth, Pewitt, and Herder, and to evaluate Strobach’s testimony in light of the testimony of these other witnesses. The Judge should then reconsider whether Asplundh’s safety program was adequate.

Accordingly, it is ORDERED that the Judge’s decision is set aside and the case is remanded for further proceedings consistent with this decision.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATE: SEP 14, 1978

CLEARY, Chairman, DISSENTING:

I respectfully dissent from the majority action in remanding this case. The majority requests a further recitation of the Judge’s reasons for finding that the safety program of the respondent was not effective, and a further evaluation of witnesses’ testimony. In my opinion the Judge in this case has made a difficult value judgment regarding conflicting testimony which is supported by the record. I do not see that it would be profitable to require a laborious review of the testimony of various witnesses. The testimony in the case shows that the respondent’s employee was not wearing a body belt at the time of the inspection. This fact alone lends credibility to the finding on the disputed question whether the witness said he never wore it. It is also evidence of an ineffective safety program. Other testimony would attest to the adequacy of the respondent’s safety program, but the Judge’s findings on these issues were favorable to Asplundh, and I am satisfied the Judge properly evaluated this testimony. The inference contained in the majority opinion is that they might have decided the case the other way on the facts, but the primary responsibility to evaluate witnesses’ testimony reposes in the Judge. Moreover, in assessing the credibility of the witnesses Strobach, Anderson, Ashworth and Pewitt, it is implicit that Judge Riehl considered the usual criteria of narrative, perception and memory. I would affirm the Judge.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16162
ASPLUNDH TREE EXPERT COMPANY,
Respondent.

July 22, 1976

DECISION AND ORDER

APPEARANCES:

JOHN B. RENICK, Esquire, U. S. Department of Labor, Office of the Solicitor, Kansas City, Missouri, For the Complainant

STEVEN R. SEMLER, Esquire, Zimmerman and Obadal, Washington, D. C., For the Respondent

STATEMENT OF CASE

Vernon Riehl, Judge, OSHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting a citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act. The citation alleged that an inspection of a workplace under the operation and control of the respondent revealed the existence of workplace conditions that violated section 5(a)(2) of the Act for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation alleges that the violations resulted from a failure to comply with standards promulgated by publication in the Federal Register.

A description of the alleged violations contained in said citation states:

CITATION NUMBER 1, NONSERIOUS VIOLATION

Item 2, 29 CFR 1926.556(b)(2)(v)

The operator working in the aerial lift basket was not wearing his body belt.

At the commencement of the hearing, the parties stipulated the following facts: that the Asplundh Tree Expert Company is a Pennsylvania Corporation with its home office in Willow Grove, Pennsylvania; that the company has over 100 employees and operates in 42 states, and that it is, therefore, in a business affecting commerce; that the company owns the trim lift truck referred to in the complainant’s citation; that there are roughly 6,000 persons in the employ of the respondent company; that the affected employees are not represented by any labor organization; that they have received copies of the citation in the case, and that they have received copies of the notice of contest as well has copies of the notice of hearing.

The complainant amended his original complaint by deleting item 1, of citation number 1 (five gallon gas can) leaving only item 2, of citation number 1, in contest. The amount of the proposed penalty was not in contest.

The respondent moved to dismiss the amended complaint on the grounds of lack of jurisdiction of the Commission for the reason that item 2, of citation number 1, was originally cited as a violation of 1926.556(b)(2)(v). This was amended to allege a violation of 29 CFR 1910.67(c)(2)(v). The original citation 1926. 556(b)(2)(v) alleges that respondent’s operator, working in the aerial lift basket, was not wearing his body belt. The complaint and the amended complaint both allege the same fact but with the different standard numbers. Respondent has stated that there is no prejudice to him insofar as the facts being the same on the citation, complaint and amended complaint. There is no substantial deviation so as to mislead him (T. 5). Both standards cited are exactly the same. The amended complaint in paragraph VI states that the citation is amended to conform to the allegations of the complaint. It is complainant’s contention that the amendment goes to the citation itself. Complainant has cited Secretary v. Park Construction Company, 17 OSHRC 343 (1975) to sustain its position.

Respondent’s motion to suppress was overruled and the cause proceeded.

It is our ruling that there is no prejudice to respondent as the facts remain the same regardless of the standard cited. Respondent had to prepare the same defense for the exact factual situation (which was known to it) on either the original complaint or the amended complaint.

On November 12, 1975, a compliance officer of OSHA inspected a jobsite of respondent and found one man working in the basket of a vehicle-mounted aerial lift approximately 20 to 25 feet in the air (pages 162, 163 of respondent’s exhibit 1).

At this time Mr. Herbert Anderson, foreman of respondent’s crew, had the basket lowered and talked to the compliance officer. The compliance officer specifically recalled in his testimony that Anderson told him he never wore a belt while working. Anderson denied making such a statement. We believe the compliance officer’s testimony to be more credible in that Anderson did make the statement (T. 19).

Later, Anderson was demoted from foreman to trimmer by the general foreman, Mr. Allen Pewitt, after the respondent received the citation issued in this cause.

Respondent had a comprehensive safety program on paper (exhibits R–1 through R–8) which instructed employees that they were to wear body belts while working from the basket of an aerial device such as the one used on this particular job at the time of inspection.

The problem is that this program never quite left the paper.

Mr. Robert Herder, respondent’s vice-president in charge of safety, testified as to the respondent’s safety program. He stated that when he gets written reports of employees violating their safety policy, he issues a written memo to the general foreman specifying that such violations must be corrected or the employees will be terminated. Mr. Herder admitted that he had never issued such a memo and that no employee had ever been discharged for failure to wear a body belt while working from a basket.

The corporate vice-president for safety had himself been on a number of jobs and found employees not wearing their belts. It would seem that the employees would be more conscious of following work and safety rules when their boss is on the job, and this lends credibility to the fact that apparently the violations were on a consistent basis.

When a foreman knowingly violates a company policy, it is strong evidence that implementation of that policy has been lax. (National Realty and Construction Company, Inc., v. OSHRC, 489 F.2d 1257, 1267, footnote 38)

To further illustrate the fact of previous transgressions and lack of implementation of the safety program, on page 71 of the transcript it is indicated that the foreman had caught his men working without belts and chewed them out. On page 73, he claimed he did not know of any instance when members of his crew were working from the baskets with belts on. On page 74, he said that he had seen employees working without belts but never while he was in charge. Also, he stated that a couple of times employees were disciplined for working from the baskets without belts. On page 75, in response to a direct question as to whether he was aware of anyone having been disciplined for not wearing a belt, he answered ‘no’. In summation, there is no question but that the respondent has gone to great lengths in providing safety equipment and a very thorough safety policy on paper, in fact, a much more comprehensive policy than we have previously seen.

Unfortunately, the actual carrying through down to the working level has not functioned as it should and this indicates a certain degree of laxity on the part of respondent in enforcing the standards. There is no other course but for us to affirm the citation.

FINDINGS OF FACT

1. At the time of the inspection of respondent’s workplace, by a compliance officer of OSHA on November 12, 1975, there were four of respondent’s employees on a tree trimming job. The compliance officer found respondent’s employee, Herbert Anderson, in a vehicle-mounted aerial lift approximately 25 feet in the air (respondent’s exhibit 1) in a basket without wearing a body belt.

2. After alighting from the basket, Mr. Herbert told the compliance officer that he ‘never wore a belt’.

3. Respondent had a safety program which included excellent written material (exhibits R–1 through R–8) which instructed employees that they were to wear body belts while working from the basket of an aerial device such as the one found by the compliance officer on the date of inspection.

4. Respondent’s safety program, while excellent on paper, lacked implementation at the supervisory level and employees were permitted to work without wearing safety belts.

5. Mr. Anderson, respondent’s employee found working in the basket without a body belt, was the foreman of respondent’s crew.

CONCLUSIONS OF LAW

1. At all times material hereto, respondent was an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

2. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

3. At the time of inspection, respondent’s employee, in violation of item 2, citation 1, was working in the basket of a vehicle-mounted aerial device with two hinged boom sections without wearing a body belt.

4. Respondent violated section 5(a)(2) of the Act by failing to comply with the occupational safety and health standard promulgated under the Act, 29 CFR 1910.67(c)(2)(v).

5. The penalty of $45 is appropriate for the aforesaid violation.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that item 2 of the citation for nonserious violation is affirmed and a penalty of $45 is hereby assessed for said violation.

Vernon Riehl

Judge, OSHRC

Date: July 22, 1976

---

[1] The two standards are identically worded and provide:

A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.

[2] Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975–76 CCH OSHD para. 20,441 (No. 3395, 1976).

[3] C. Kaufman, Inc., 78 OSAHRC 3/C1 6 BNA OSHC 1295, 1977–78 CCH OSHD para. 22,481 (No. 14249, 1978).

[4] P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977–78 CCH OSHD para. 22,413 (No. 76–431, 1977).

[5] C. Kaufman, Inc., supra.

[6] The Judge concluded that the fact supervisors had discovered violations of the rule was itself an indication the rule was inadequately enforced because employees would be more likely to comply with safety rules when supervisors were present. As noted above, however, the Commission has held that an adequate safety program includes efforts to discover whether violations of work rules have occurred. Thus, the fact that supervisors discovered infrequent violations of the body belt rule supports, rather than discredits, Asplundh’s argument that its safety program was effective.