Docket No. 777

DRISCOLL CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 777

Occupational Safety and Health Review Commission

September 6, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On February 22, 1973, Judge Donald K. Duvall issued his decision and order in this case, affirming the Secretary's citation and proposed penalty in the amount of $120.

Thereafter, on March 2, 1973, that decision was directed for review by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590).

The Commission has considered the record in this case and finds no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision and order be affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition of this case but specifically reject that portion of the Judge's decision whereby he implies that the knowledge requirements of section 17(k) are applicable to a nonserious violation. See my concurring opinion in Secretary of Labor v. Mountain States Telephone & Telegraph Company,

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a nonserious violation, with a proposed penalty of $120.00, issued by Complainant on April 10, 1972, against Respondent under authority of Section 9(a) of the Act.

The citation, contested by Respondent on April 12, 1972, alleges that on the basis of an inspection of a workplace under Respondent's ownership, operation or control, located at 43d and Sansom Streets, Philadelphia, Pennsylvania 19046, being a sewer recontruction job, Respondent violated the Act, specifically, Section 5(a)(2) and the occupational safety and health standard set forth at 29 CFR 1926.104(d) (formerly 1518.104(d)), as adopted by 29 CFR 1910.12. The cited standard provides as follows:

(d) Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.

The citation called for correction of the alleged violation immediately and described it as follows:

Safety belt lanyards were noted to be more than the maximum length required to provide for a fall of no greater than 6 feet. Sewer reconstruction job site between Walnut and Sansom Streets at 43rd Street, Philadelphia, Pa.

A hearing in this matter was held before the undersigned Judge at Philadelphia, Pennsylvania on October 5, 1972, at which time the following stipulation of the parties was received in evidence:

(1) The respondent, Driscoll Construction Company, Inc., is a Pennsylvania corporation with its principal office and place of business located at 101 Greenwood Avenue, Jenkintown, Pennsylvania, and maintains a workplace at 43rd and Sansom Streets, Philadelphia, Pennsylvania.

(2) The said Driscoll Construction Company, Inc., is, and at all times hereinafter mentioned was, engaged in the business of heavy construction, using equipment and supplies manufactured outside the Commonwealth of Pennsylvania, has approximately 37 employees, and is an employer engaged in a business affecting commerce, and is subject to the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ).

(3) The respondent's workplace at 43rd and Sansom Streets, Philadelphia, Pennsylvania, was investigated on March 17, 1974, and March 20, 1972, by a Compliance Officer of the Occupational Safety and Health Administration, which resulted in the respondent being issued on April 10, 1972, a citation containing one item pursuant to section 9(a) of the Act.

(4) At the time the March 17th and 20th, 1972, inspections were conducted, the said Driscoll Construction Company had at least five employees working in the trench at the aforesaid workplace.

(a) The trench involved was approximately 30 feet deep.

(b) These employees had been working at this location for approximately five weeks.

(d) These employees were working approximately twelve or thirteen feet below the beams where the lanyards were tied off.

(e) These employees were working approximately twelve to fifteen feet above the water in the bottom of the trench.

(f) One of these employees, William Jones, was fatally injured as the result of a fall from the planking upon which they were working.

(g) Mr. Jones was found approximately thirteen feet below the plank where they were working.

(5) The proposed penalty was reasonable and proper and was assessed in accordance with requirements of section 17(j) of the Act.

(6) By letter dated April 12, 1972, Michael Driscoll, Vice-President of Driscoll Construction Company, Inc., notified the Occupational Safety and Health Administration of their intent to contest the citation and proposed penalty issued on April 10, 1972.

(7) The April 10, 1972, citation and proposed penalty were properly served upon the respondent.

(8) The respondent has posted the citation and notice of time and place for the hearing herein on September 26, 1972.

As set forth in the hearing transcript, on March 17, 1972, the deceased employee, William Jones, was one of several of Respondent's employees working to demolish an old sewer consisting of a brick arch and concrete mass located in a trench apprximately 30-35 feet deep. The employees, including decedent, were standing on steel beams at about 11:30 in the morning, approximately 18 inches above the mass, about 13 feet above the bottom of the partially flooded trench, with the lanyards of their chest-type harnesses anchored over beams 12-13 feet above them when, at the direction and in the presence of Respondent's superintendent, John Lynch, the key in the sewer arch was cut out causing the mass to collapse. This collapse somehow caused decedent to fall or be pulled off the beam on which he was standing and to be killed when he apparently struck the mass before coming to rest, still in his harness, with his feet practically touching the water in the bottom of the trench about 13 feet below where he had been standing.

In its answer to Complainant's complaint Respondent stated:

The specific excavation, in which these men were working, involved work activities at varying elevations between the existing street surface and approximately thirty-five feet of depth. The men were provided with and instructed in the use of required lanyards. The men would work at several different elevations during a given shift. Accordingly, the lanyards were purchased in a length to meet the requirements of the regulations (when properly implemented) at all working depths. The men were told and instructed how to eliminate the slack on the lanyard when working at an elevation higher than maximum depth (securing the lanyard in such a manner that a fall greater than six feet would not be possible).

This was the system being used at the workplace and in the absence of indifference on the part of the employees was a successful system, which was in accordance with the regulations.

The major issues to be resolved herein are (1) whether Respondent violated the Act as alleged in the citation, in effect, by failing to provide its employee with a safety belt lanyard with a maximum length to prevent a fall of greater than 6 feet; and (2) whether the proposed penalty of $120.00 for this alleged violation is reasonable and appropriate in accordance with Section 17(j) of the Act.

DISCUSSION

The principal thrust of Complainant's position is that under the Act the employer has the primary responsibility to provide safe and healthful working conditions for its employees by assuring a workplace free from recognized hazards; that the employer cannot diminish or relieve itself of this responsibility by transferring or delegating it to its employees, especially under circumstances perceived by the employer to be hazardous. Applying this interpretation of the Act to the instant case, Complainant contends that Respondent violated the Act, and particularly the cited standard 29 CFR 1926.104(d), by providing its employees at the cited workplace with safety lanyards 40 feet long, inadequate instructions to the employees in their proper use, i.e., how to tie off (shorten) the lanyards so as to allow for a fall of no greater than 6 feet, and/or inadequate enforcement of employee compliance with said instructions.

While the mere issuance or provision of a safety belt lanyard of a maximum length too excessive to prevent a fall greater than 6 feet might, in certain circumstances not here present (e.g., issuance without any instructions to incompetent or inexperienced employees) constitute a violation of the cited standard, the command of the standard is principally directed to the use of such lanyard, i.e., that any safety belt lanyard shall, in use, have a maximum length to provide for a fall no greater than 6 feet. Thus, in accordance with the apparent customary and accepted practice within the construction industry, a safety belt lanyard of an absolute length in excess of 6 feet would normally meet the standard if properly tied off to assure a maximum operable (fall) length of no greater than 6 feet at whatever above ground level the employee using the lanyard might be working (Tr. 22-24).

According to the record herein, employee Jones' fall left him suspended in his harness with his feet in or close to the water in the bottom of the trench, approximately 13 feet below the beam upon which he had been standing at the time the sewer mass collapsed (Tr. 21). This uncontested fact, absent any evidence of a defective harness or lanyard, lead to the undisputed conclusion that employee Jones had not effectively or sufficiently tied off his lanyard so as to provide against a fall of greater than 6 feet (Tr. 22-23). Complainant contends that the hazard proximately caused by this negligence or malfeasance on the part of employee Jones was the responsibility of Respondent who, principally through its supervisor John Lynch, did not do all that it could and should have done to reduce or eliminate the hazard. In short, contends Complainant, if Respondent had properly supervised and instructed employee Jones the hazard incident to the recognized danger of collapse of the sewer mass would have been minimized and the fatality may have been prevented (Tr. 23-24).

On the other hand, Respondent argues that employee Jones, together with the other affected employees, was instructed on how to use (tie off) the safety belt lanyards at the time they were issued (Tr. 53); that on the morning of the accident employee Jones was further instructed by fellow employee Richard Smith on how to tie off his lanyard and, just before the accident, the latter asked Jones to tie his rope (lanyard) up short (Tr. 54-55). Respondent takes the position that having provided the required safety equipment and reasonably instructed its employees in the use of that equipment (safety belt lanyards) it cannot be held legally responsible for the failure of one of its employees, in an isolated incident, to comply with the instructions and the cited standard and to carry out his own express obligations under the Act (Respondent's Brief).

The record establishes that immediately prior to his fatal fall employee Jones did not have his lanyard tied up with a maximum length to provide for a fall of no greater than 6 feet (Tr. 22, 54-55, 57-58). Compliance Officer Stanley did state than in the course of his investigation and inspection of the workplace employee Smith said that just before the accident he had told the men, including Jones, to take the slack out of their lines and that Jones did take the slack out of his line by taking it in his hand, but, in Stanley's opinion, this was not properly taking the slack out of the line in compliance with the intent of the cited standard (Tr. 24-25). On direct examination, Smith stated that he asked Jones to tie his rope up short just before he fell but Jones did not do so (Tr. 54-55). Violation of the cited standard is thus clearly proved and the question is whether employee Jones' violation of the standard, by failing to shorten his 40 foot safety belt lanyard as instructed, is imputable to Respondent-employer.

To answer that question fairly requires careful consideration of all the relevant circumstances existing at the workplace at the critical time on March 17, 1972, including such factors as the sufficiency and appropriateness of Respondent's instructions relative to the nature and gravity of the hazard of the sewer arch demolition and the intelligence and experience of the affected employees; and the reasonableness of Respondent's policy and procedures for enforcing its safety rules and instructions respecting proper use of safety belt lanyards as required by law.

The record shows that Respondent's superintendent, John Lynch, first instructed the six affected employees, including Jones, in the use of the safety belt lanyards at the time each employee was issued same about the first week in February 1972 (Tr. 33-34). This initial instruction included an explanation of how to tie up (shorten) the rope or lanyard, but left to each employee the determination of the point of tie-off (length of working rope) depending on the distance he was willing to fall, if a fall occurred (Tr. 34-35, 53). It is not clear from the record that the employees were instructed that the tie-off should be made at a length to prevent a fall greater than 6 feet. Mr. Lynch did state that he and the employees "talked about that" just about everyday or every week (Tr. 35) and that he "instructed them in that" (Tr. 42). But Mr. Lynch's testimony suggests that Respondent's safety procedures were primarily concerned with checking to make sure that the employees had their harnesses and ropes on whenever they went down in the hole (Tr. 35, 43, 50). Based on his inspection and investigation, Mr. Stanley was of the opinion that prior to the accident neither Mr. Lynch nor Mr. Smith was aware of the no greater than 6 feet fall rule governing the adjustment of lanyards (Tr. 26).

The record further shows that Respondent's superintendent (Mr. Lynch) conducted safety meetings "every week or so" with the affected employees which included instructions on the use of the safety lines (lanyards) (Tr. 43-45). But, again, insofar as this record reveals the safety meetings did not include specific instructions that the lanyards should be adjusted so as to provide against a fall greater than 6 feet; with respect to lanyards, the instructions apparently went no further than to emphasize to the employees to make sure they had their harness and lines on (Tr. 43-44). In addition to the safety meetings, Mr. Lynch testified that he watched the employees daily (Tr. 42) and had to remind them "on occasion" of the proper use of the safety line, even though they were "experienced" men (Tr. 44, 50). Indeed, just prior to the accident on March 17, 1972, Mr. Lynch told the employees, including Jones, "to make sure they tie themselves up, to get their ropes out of the way and get tied up" (Tr. 45). According to Mr. Lynch, if the employees, including Jones, had followed the instructions he gave them, no one should have fallen more than 6 feet (Tr. 42).

Mr. Lynch further testified that at the time he stopped the operation and had all the employees get clear of the arch just prior to cutting out the keystone to effect collapse of the sewer arch he noticed that Jones, who was standing on one of the steel beams with the other employees, had his rope looped over another beam not directly overhead and he was told to move his rope, presumably to a more overhead position (Tr. 40-41, 45). But just prior to or at the time of the accident Mr. Lynch did not notice the exact position of Jones' line, evidently for the same reason he did not notice that another employee (who also fell from the same beam and at the same time as Jones) did not have his safety line hooked to his harness, namely, because "you can't watch six men and six lines at one time. It is just impossible" (Tr. 45-47).

Under the circumstances existing at the workplace, did Respondent, acting through its superintendent-supervisor, do all that a reasonable and prudent employer could and should do to assure compliance with the cited standard and thus assure so far as possible safe working conditions for its employees as required by the Act? At the time of the accident, when the sewer arch collapsed upon cutting of the keystone, Mr. Lynch had gotten all the employees out of the way on the steel beams so that when the arch fell there would be "nobody under it or around it or near it (Tr. 40-41, 47-48). It was an obviously dangerous situation and everybody knew that (Tr. 48).

At this critical junction, having stopped the operation momentarily prior to cutting the keystone, Mr. Lynch satisfied himself that all the employees were out of the way and on the steel beams but did not check to make sure that the employees were tied up properly. He testified that it was impossible for him to make such a check on all six employees at the time. Since he had stopped the operation for the express purpose of allowing time for the men to take safer positions relative to the serious gravity of the hazard about to occur, it is not clear from Mr. Lynch's statement why such a check was impossible. Since he had control of the operation, he evidently had time to check or at least observe the status of the safety belt lanyards of these 6 employees who were within plain sight and under his supervisory authority. Certainly the most cursory observation or inquiry could have revealed employee Jones' untied lanyard and the other employee's unhooked lanyard.

In choosing not to check the employees' safety lines at this critical point, Mr. Lynch apparently relied on the employees' good faith compliance with his previous instructions concerning use of the safety lines and other safety procedures. Such reliance was not reasonable in the circumstances of this case. Despite all his instructions to and safety meetings with these employees from the time of issue of the safety belt lanyards in early February up to the date of the accident (March 17), Mr. Lynch had still found it necessary to remind these employees, whom he considered experienced, concerning proper use of the lanyards. While the record does not show that employee Jones had to be repeatedly so reminded, it does show that Jones was relatively inexperienced in the use of lanyards, and in this critical respect was considered a "new man" by his co-employee Smith who, as a volunteer, himself assisted and instructed Jones on adjusting his lanyard and immediately prior to the accident told Jones to shorten his line which the latter did not do. While this fact, in itself, tends to show that employee Jones was extremely negligent, indifferent, incompetent, unintelligent, unfit, and/or inexperienced, this negligence, deficiency or incapabity of employee Jones cannot relieve Respondent-employer of its obligation to assure compliance with the cited standard if, with the knowledge available or chargeable to it at the time, Respondent could have reasonably enforced timely compliance with the standard and probably minimized or avoided the safety hazard. Mr. Lynch, and, hence, Respondent, knew or should have known that Jones was relatively inexperienced in the use of safety belt lanyards, even though he had received the same instructions on this particular job as had the other employees. Even though he had worked for Respondent at an earlier time, Jones' inexperience in the use of lanyards relative to the same type of experience of the other employees, as stated by employee Smith, was not disputed by Complainant (Tr. 55-59). The fact that even as late as the date of the accident a co-employee, at Jones' request and as a volunteer, had a assist and instruct Jones in the adjustment of his lanyard evidences a lack of facility or understanding by Jones in the proper use of the safety belt lanyard which could not totally have escaped the observations of a reasonably alert supervisor over a month's period of time.

While it is true, and most commendable, that at its safety meetings Respondent, through superintendent Lynch, sought to promote a collective sense of safety consciousness on the part of the employees (Tr. 44), it is apparent that in doing so Respondent, consciously or not, tended, in effect, to delegate to its employees a measure of the employer's unique statutory obligation to furnish each of its employees safe and healthful working conditions insofar as possible. For example, Mr. Lynch testified that "all the men are told that if they notice anything that might cause an accident, they are supposed to get a hold of us right away and stop the operation" (Tr. 44). But if this instruction, apparently relied on by Mr. Lynch, was understood or taken seriously by the men, the effectiveness of such a procedure is not supported on the present record. On the contrary, for example, employee Smith, who was not a supervisor, did not notify Mr. Lynch at the critical time that Jones did not have his line tied up. The fact that Respondent had no policy of disciplining employees for safety violations relating to use of safety belt lanyards beyond letting them know "in no uncertain terms" that "they (should) have the lines on them, or get out of the hole" (Tr. 50), can hardly be described as a vigorous, if adequate safety enforcement policy or procedure likely to give assurance to a prudent employer that it reasonably could rely upon its employees to comply with its safety rules and instructions respecting the tied-off length of lanyards. Compare Secretary of Labor v. Standard Glass Company, Inc., A safety policy obtains effectiveness only through implementation ( Secretary of Labor v. National Realty and Construction Co., Inc.,

Here, not only the implementation but the pertinent safety policy itself appears weak and ineffective. Thus, the record leaves me unconvinced that Respondent ever specifically instructed the affected employees to tie off their lines so as to provide for a fall no greater than 6 feet. Simply instructing these employees how to tie up their lanyards at whatever length they needed in order to work at particular, varying elevations within the sewer excavation and to adjust them for the length of fall they desired, without clearly specifying the maximum fall of 6 feet permitted by law, did not effectively communicate to these employees the full requirement of the cited standard. Respondent's emphasis on employees wearing the harness and lanyard whenever in the excavation, leaving it essentially to the judgment or discretion of the employee to adjust the lanyard length in accordance with the height of the working depth and the desired length of fall, tended to sacrifice substance to form in this area of Respondent's safety program. So long as employees wore a safety harness and ropes when working in the excavation, it was Respondent's practice not to scrutinize them further to make sure that the adjustment of the lanyard length, perhaps the most important element of this safety equipment, was adequate and proper. While such a safety policy and practice might legally be sufficient and consistent with the requirements of the Act in other cases, I cannot so find in the particular circumstances of this case.

In view of Respondent's past history of no violations of safety and health regulations (Tr. 13), it may well be asked wherein Respondent was put on notice that more was required of it to assure compliance with the cited standard. The significance of Respondent's no violations record would, of course, depend on the extent to which its work involved operations requiring the use of safety belt lanyards and over what period of time, matters as to which the record is silent. To summarize the foregoing discussion, I conclude that immediately prior to the accident Respondent, through its superintendent who was present and supervising the affected employees at the workplace at the time, was chargeable with notice that two of its employees were in violation of the cited standard at a very dangerous juncture in the sewer demolition operation, in that they were standing on steel beams across a 30 foot deep excavation approximately 13 feet above the flooded bottom of the excavation and some 18 inches above the arch of a concrete sewer mass being demolished with jack hammers, that one employee (Jones) was wearing a 40 foot long safety belt lanyard whose length was not tied-off (shortened) to provide against a fall greater than 6 feet and the other employee was wearing a safety belt without any lanyard being hooked to it to provide against a fall of any distance.

Respondent has failed to show any convincing reasons why its superintendent (Lynch) could not or should not have checked or at least observed these blatant violations by these employees, who were in his presence and under his direct supervision. These deficiencies in the use of safety belt lanyards, which constituted violations of an occupational safety and health standard to which Respondent was subject, were of such a nature as to be readily observable by the superintendent or readily detectable or discernable by reasonable inquiry or inspection.

In addition to the requirements of the cited standard, Respondent's superintendent had the extra duty of exercising a high degree of care in assuring the safety of these employees given the recognized gravity of the hazard incident to imminent collapse of the concrete sewer arch mass, the precarious position of the employees standing on steel beams some 13 feet above the partially flooded excavation and concrete mass, and the known propensity of these employees, especially Jones, who obviously had less experience in the use of safety belt lanyards, to need reminders on the proper use of such equipment, despite periodic instructions and safety meetings relating to such use. Under these circumstances, and absent any convincing proof of the alleged impossibility of the superintendent's discovering and correcting the violations at the time, his failure to so act and, in effect, his reliance on the effectiveness of his previous instructions, safety meetings, and employee cooperation and self-enforcement of safety policy and procedures which, insofar as the cited standard is concerned, may not have been clearly, consistently or sufficiently communicated to the employees, much less strictly enforced, cannot be deemed reasonable or consistent with the requirements and purposes of the Act.

In its brief, Respondent argues that the Act does not impose upon employers strict liability without fault and that having, through superintendent Lynch, instructed the affected employees in the use of the lanyards at the time of their issuance in January 1972 and thereafter at weekly safety meetings, and, in employee Jones' case, on the day of and immediately before the accident by employee Smith, Respondent had fulfilled all of its express obligations under the cited standard (Respondent's Brief, pp. 3-8). By inference from several of the decisions in cases cited by Respondent as legal authority for its position Respondent also seems to be arguing that employee Jones' negligence in not having his lanyard properly adjusted was an isolated occurrence which Respondent could not reasonably be expected to have prevented or to have foreseen. However, it is noteworthy that each of the decisions cited are distinguishable from the case at bar.

In Standard Glass Company, Inc.,

An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards all the time. An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer's instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer.

Unlike the circumstances in Standard Glass, the employer-Respondent here knew or, with the exercise of reasonable diligence (through its superintendent), could have known of the violations of the cited standard. Also, the fact that more than one of Respondent's employees failed to have his lanyard properly tied-off at a time of danger obvious to all, and after over a month of periodic instructions and safety meetings relating to use of the lanyards, tends to outweigh the inference to be drawn from Respondent's history of no cited violations and raises doubts as to how isolated this type of violation was at this workplace. Furthermore, while there is substantial evidence that the general company rule requiring employee use of the safety belt lanyard when working in the excavation was uniformly enforced, as previously discussed, the evidence of record does not clearly show that trying-off lanyards to provide against falls greater than 6 feet was included specifically in the Respondent's policy and instructions to employees or, if so, that it was uniformly enforced. Thus, I do not consider superintendent Lynch's testimony quoted on page 4 of Respondent's brief, read in context of the whole record, as clear assurance that the affected employees were so specifically instructed.

It is reasonable to expect employers, acting through their supervisors, to instruct their employees so specifically, with due regard for the practical realities of the on-the-job situation in this type of work. While some supervisors may be loathe to instruct employees "experienced" in the use of lanyards, so specifically, i.e., that they must be tied-off in such a manner as to provide against a fall greater than 6 feet, one of the very purposes of the Act in providing for promulgation of a standard to that effect was and is to require compliance with such a specific standard so as to specity and spell out the limits within which both employers and employees have judgmental latitude or personal discretion in determining the tie-off length of safety belt lanyards in use. However elementary or repetitious specific instruction as to the maximum fall length of lanyards permitted by law might be, the importance of this factor in achieving the intended full benefit and protection of the safety belt lanyard and the requisite intelligence level of employees often engaged in this type of work, suggests the need for fairly strict compliance with the cited standard if it is to be effective in achieving the purpose of the Act -- "to assure so far as possible . . . safe and healthful working conditions. . . ."

In Clements Paper Company,

In that case, the employee's action of putting his head under the grossly overloaded fork lift was truly an isolated occurrence of which the employer had no actual or imputed knowledge and which was not reasonably foreseeable. The affected employer was an experienced mechanic with over 20 years experience, the last seven of which were with the current employer; he was regarded as safety conscious, was familiar with the load-lifting equipment, and had received instructions and attended safety meetings on safety maintenance. There was no way the employer could know that the employee would deviate from the proper method of elevating this particular load, as he did while alone in the rear of the warehouse. In contrast, the affected employee in the present case was not so experienced or safety conscious and, while his negligent act may not have been reasonably foreseeable, it was performed in the presence of Respondent-employer's superintendent, who thus had actual or imputed knowledge of the violation. In the circumstances of this case, it was incumbent upon Respondent's superintendent to have checked the proper use and adjustment of the employees' safety belt lanyards so as to assure compliance with the cited standard.

While the Act recognizes in Section 5(b) that accomplishment of its purposes cannot be totally achieved without the fullest cooperation of affected employees, that section of the Act is not intended to diminish in any way the employer's compliance responsibilities or his responsibility to assure compliance by his own employees. Senate Report 91-1282, 91st Congress, 2d Session 10, Legislative History of the Occupational Safety and Health Act of 1970, 92d Congress, 1st Session 150 (June 1971). Indeed, final responsibility for compliance with the requirements of the Act remains with the employer ( Ibid., at 151).

In CAM Industries, Inc., The applicable standard (29 CFR 1910.133(a)(1)) required the employer to "make conveniently available" to his employees a type of protector suitable for the work to be performed, but then required the employee to "use the protectors." No such express division of obligations between employers and employees is found in the standard cited in the present case. Judged by its specific wording, such as the words "safety belts, and lanyards . . . shall be used . . ." in subsections (a) & (c), the entire standard set forth at 29 CFR 1926.104 imposes the obligation on both employers and employees to assure the proper use of such equipment.

In Industrial Steel Erectors, Driscoll, employee Jones, in effect, having refused to tie-off his lanyard in compliance with instructions and the cited standard. Similarly, substantial weight may be given Respondent for good faith in having furnished the required equipment, issued instructions (albethey incomplete) seeking compliance, and enforced the instructions for substantial compliance. But consideration of this factor in determining the appropriateness of the penalty must be premised in both cases on a finding of violation of the applicable cited standard. It should be noted, of course, that in Erectors affirmation of the citation for a serious violation under Section 17(b) of the Act required an assessment, whereas assessment of a penalty for a nonserious violation, as in Driscoll, is, under Section 17(c) discretionary up to $1,000. Also, in Erectors the standard and the employees' refusal to tie-off were directed to securing the lifelines "above the point of operation to anchorage or structural member" and only incidentally to tie-off in a manner to provide against a fall greater than 6 feet, which is the essence of the standard and violation in Driscoll.

In view of the circumstances of this case, particularly the fact that a fatal accident was involved, Complainant's determination that the alleged violation in this case was other than serious may well be questioned. In deciding whether a violation is serious under Section 17(k) of the Act, Complainant must determine whether there is substantial probability that death or serious physical harm will result from the violation and, if so, whether the Respondent-employer knew, or with the exercise of reasonable diligence should have known, of the hazard. It would appear that an unchecked fall from an unguarded position on a steel beam approximately 13 feet above a partially flooded excavation and concrete mass (collapsed or intact) involved substantial probability that death or serious physical harm would result. Employee Jones was in fact killed when he fell, even without reaching the bottom of the excavation, his fatal injuries evidently having been sustained by hitting the concrete mass in the course of his fall to the full, untied off length of his lanyard (Tr. 21). The injuries, if any, of the other employee who fell without a hooked lanyard at the same time as Jones are not specified in this record, although it may be inferred that he was not killed.

However, compliance officer Stanley testified that nobody could really say that the fatality would have been prevented if the cited standard had been complied with. The most he would say is that if the slack in Jones' line had not been there he may have survived (Tr. 23). Thus, Complainant apparently had some basis for doubting the likelihood that death or serious physical harm could result from the condition which was violation of the cited standard (See U.S. Department of Labor OSHA, Compliance Operations Manual VIII-3, 4, 5 (January 1972); Complainant's Exhibit C-3). As previously discussed, Complainant, through its Superintendent, who had stopped the operation in preparation for the critical cutting of the keystone of the old sewer, whose imminent collapse was a recognized hazard, knew or by exercise of reasonable diligence could have known of the presence of the violation. In those circumstances, Mr. Stanley testified that "somebody should have been there to see that the line was not slacked off the way it was" (Tr. 24). However, the testimony of Stanley, Lynch and Smith concerning the reasonable precautions Respondent had taken to avoid the violation by repeated instructions and periodic safety meetings, Smith's instructions to Jones on the date of the accident, and Lynch's opinion that it was impossible for him at that time to check the status of the employees' lanyards apparently carried some weight in Complainant's determination respecting the seriousness of the alleged violation.

In any event, the Commission now considers itself without authority, absent the consent of the Secretary, to find a violation of a degree higher than that charged by the Secretary. Secretary of Labor v. Wetmore and Parman, Inc., Secretary of Labor v. Dundas Pallet Company, Secretary of Labor v. Republic Creosoting Company, Division of Reilly Tar and Chemical Corporation,

Turning to the appropriateness of the penalty of $120.00 proposed for the non-serious violation cited in this case, it appears from evidence of record that in determining the appropriateness of this civil penalty Complainant did consider the size of Respondent's business (net worth of 1-1/2 million dollars and approximately 37 employees for 1972, Tr. 13), the gravity of the violation, Respondent's good faith, and history of no previous violations (Tr. 13; Complainant's Exhibit No. C-3). Additionally, the parties have stipulated that the proposed penalty is reasonable and proper and in accordance with Section 17(j) of the Act (Complainant's Exhibit C-4, item 5). However, such a stipulation between the parties cannot derogate from the Commission's responsibility under Sections 17(j) and 10(a) of the Act, to determine the appropriateness of the penalty in a contested case before it, taking into consideration the criteria set forth in Section 17(j). Secretary of Labor v. Thorleif Larsen and Son, Inc.,

In determining the amount of the proposed penalty here, Complainant considered the violation to be of high gravity warranting an unadjusted penalty of $380.00 (on a $1,000 maximum scale), taking into consideration the probability or likelihood of injury (moderate), the severity of injury (very high), and the extent to which the standard was violated (high). This unadjusted penalty was diminished by 35% based on a 10% deduction for good faith, a 5% deduction for size, and a 20% deduction for history. The resulting adjusted penalty of $247, was further reduced by a 50% abatement credit and rounded off to $120.00 as the final proposed penalty. On balance, all factors considered, this proposed penalty was determined consistent with the requirements of Section 17(j) and appears not inappropriate or unreasonable as a matter of law.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. On March 17, 1972, Respondent, a Pennsylvania corporation engaged in heavy construction and using equipment and materials manufactured outside the Commonwealth of Pennsylvania, had ownership, operation or control of a sewer reconstruction project at Sansom and 43d Streets, Philadelphia, Pennsylvania (Citation; Stipulation, Complainant's Exhibit No. C-4).

2. On March 17, 1972, at about 11:30 a.m. Respondent's superintendent, John Lynch, directed six of Respondent's employees working on the sewer reconstruction project to get clear of the old concrete sewer mass in the process of being demolished just prior to cutting out the keystone of the 17-1/2 feet high arch of said sewer mass which was intended to cause and actually resulted in the collapse of said arch into the water and debris at the bottom of the sewer excavation which was about 30 feet wide and 35-38 feet deep. This operation was recognized as an obviously dangerous situation (Tr. 24-25, 40, 38-39, 47-48).

3. At the time of the keystone removal Respondent's employees were standing on steel beams across the excavation, about 18 inches above the concrete sewer mass, with the lanyards of their safety belts looped over another steel beam about 12-13 feet above them. At this same time, two of these employees, including William Jones, did not have their respective safety belt lanyards adjusted or tied-off at a maximum length to provide for a fall of no greater than 6 feet (Tr. 21-23, 41).

4. The collapse of the sewer arch upon removal of its keystone somehow caused employee Jones to be pulled off the steel beam on which he was standing, resulting in his death evidently by striking the concrete mass as he fell approximately 13 feet to a position where, suspended in his safety harness, his feet were in or almost in the water at the bottom of the excavation (Tr. 21). Another one of the six employees on this job also fell about the same distance at the same time (Tr. 45-46).

5. Earlier in the morning of March 17, 1972, employee Richard Smith had hooked employee Jones' lanyard to his (Jones') safety belt at the latter's request and showed him how to tie off the lanyard to limit any fall; and just prior to the accident employee Smith and superintendent Lynch told the employees, including employee Jones, to tie-up (shorten) their lanyards (Tr. 45, 54-55), but instead of doing this Jones simply took up the slack in his hand (Tr. 25, 57-58). The other employee who fell did not have his safety line (lanyard) hooked on to his harness at the time (Tr. 46).

6. While employee Jones was less experienced than the other five employees in the use of safety belt lanyards (Tr. 58), he had received instructions from superintendent Lynch on how to use this equipment together with the other employees when the equipment was issued to the employees early in February 1972 (Tr. 34). Every week or so safety meetings of these employees at the workplace were held by superintendent Lynch, which covered safety lines (Tr. 45). Also superintendent Lynch reminded the employees from time to time as necessary to be sure to wear their lines (Tr. 44, 50), but no discipline was imposed to enforce compliance with the superintendent's instructions (Tr. 50).

7. The safety belt lanyards issued by Respondent to these employees were 40 feet long in order to be usable at any elevation within the sewer excavation workplace, the employees being instructed to make their own tie-offs to give them the freedom they needed (Tr. 34, 36). The instructions, given by superintendent Lynch, explained how to tie-up the lanyard and that it should be tied at whatever length the employee wanted to fall (Tr. 53). While superintendent Lynch contends that following his instructions the employees should have been able to limit any fall to 3-6 feet, the record does not clearly show that Lynch specifically instructed the affected employees that they should adjust their lanyards to assure a maximum length to provide for a fall no greater than 6 feet (Tr. 42, 45, 26).

8. Just prior to the accident on March 17, 1972, superintendent Lynch told the employees to get their ropes out of the way and get tied up (Tr. 45). While Lynch noticed that employee Jones' rope was not anchored directly over his head, and had Jones correct this, he did not know exactly the position of Jones' line or the unhooked status of the line of the other employee who fell, and stated that it was impossible to watch all 6 employees and their lines at the same time (Tr. 45-46).

9. Based on its inspection of Respondent's workplace on March 17 and 20, 1972, Complainant issued to Respondent a citation and Notification of Proposed Penalty on April 10, 1972, alleging violation of Section 5(a)(2) of the Act and the occupational safety and health standard set forth at 29 CFR 1926.104(d) in that safety belt lanyards used by Respondent's employees at the workplace exceeded the maximum length required to provide for a fall no greater than 6 feet (citation; Notification of Proposed Penalty).

10. Complainant's determination of the proposed penalty in the amount of $120.00 took into consideration the gravity of the alleged violation, the size of Respondent's business, Respondent's good faith and history of previous violations (Complainant's Exhibit C-3, Tr. 13).

CONCLUSIONS OF LAW

1. Respondent is and at all times material hereto was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and the Commission has jurisdiction of the parties and of subject matter herein.

2. On March 17, 1972, Respondent was subject to Section 5(a)(2) of the Act, effective April 29, 1971, and to the regulations duly promulgated thereunder, including 29 CFR 1926.104(d), published in the Federal Register (36 FR 7351), on April 17, 1971.

3. On March 17, 1972, Respondent violated Section 5(a)(2) of the Act and the occupational safety and health standard set forth at 29 CFR 1926.104(d) (formerly 1518.104(d)), as adopted by 29 CFR 1910.12, in that two of its employees at its sewer reconstruction workplace located at 43d and Sansom Streets, Philadelphia, Pennsylvania were not wearing safety belt lanyards adjusted to the maximum length required to provide for a fall no greater than 6 feet. Accordingly, the citation issued by Complainant to Respondent on April 10, 1972, should be affirmed.

4. Complainant's determination of the proposed penalty for the aforesaid violation, in the total amount of $120.00, is appropriate and consistent with the requirements of Section 17(j) and (c) of the Act. Accordingly, the notification of proposed penalty issued by Complainant to Respondent on April 10, 1972, should be affirmed.

ORDER

Based on the foregoing findings of fact and conclusions of law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Complainant's citation of Respondent for violation of Section 5(a)(2) and a standard duly promulgated thereunder, specifically 29 CFR 1926.140(d) (formerly 29 CFR 1518.104(d)), as adopted by 29 CFR 1910.12, issued to Respondent on April 10, 1972, be and hereby is affirmed.

2. Complainant's notification of proposed penalty in the total amount of $120.00, issued to Respondent on April 10, 1972, be and hereby is affirmed.