Dynamic Painting Corp.

Plain-English summary

Dynamic Painting employees worked on a bridge and suspended scaffold above water at a Bay Shore, New York, site. The judge vacated the fall-protection item because the compliance officer gave inconsistent testimony about when the photographs were taken, where the employee was located, and whether the employee was tied off. He also vacated the scaffold-lifeline item under the unpreventable employee misconduct defense, crediting evidence of an effectively communicated and enforced rule requiring lanyards to be attached to a fixed structure. A life-jacket item was vacated because a distant photograph and the lack of employee interviews did not prove that workers lacked buoyant vests. The judge affirmed only the ring-buoy item because the required buoy and line were not shown to be within 200 feet of the work, and he assessed no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.105(a), 1926.106(a), 1926.106(c), and 1926.451(i)(8).
• Outcome: Mixed. Three items were vacated, and one other-than-serious ring-buoy item was affirmed without a penalty.
• Key point: OSHA must prove the observed condition with reliable evidence, while an effectively enforced safety rule can support an unpreventable employee misconduct defense to an isolated violation.

Full text (OSHRC public release)

                          UNITED STAES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW COlWWSSlON
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th FIoor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0398
DYNAMIC PAINTING CORPORATION
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATTVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on December 28, 1994. The decision of the Judge
will become a final order of the Commission on January 27, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
January 17 , 1995 in order to ermit sII& cient time for its review. See
Comrmssion Rule 91, 29 C.F.5. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also maiI a copy to:
Dtiel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: December 28, 1994
DOCKET NO. 93-0398
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick, Room 70?
New York, NY 10014

Allan Ross, Esquire
N dick & Ross
275 Broad Hollow Road
Melville, NY 11747

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safe7 and Heal &
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00106882764:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

                                          .
                                          .

SECRETARY OF LABOR, ..
l
a

   Compkiinan~                            ..
                                           a.
           v.                               ..        Docket No. 93-0398
                                             ..

DYNAMIC PAINTING CORP., ..
..
Respondent. ..
..
..

Appearances:
Alan L Kammermaq Esq. Alan Ross, Esq.
U.S. Dept.of Labor Nydick & Ross, Esqs.
New York, New York Melville, New York

                    For the Complainant                                    For the Respondent

BEFORE: CHIEF AIMINISTRATIVE LAW JUDGE IRVING SOMMER

                                 DECISION AND ORDER

   This is a proceeding under Section 10(c) of the Occupational Safety and Health Act

of 1970, 29 U.S.C. section 651 et seq.,( the Act), to review citations issued by the Secretary

of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties

therein issued, pursuant to section 10(a) of the Act.

Following an inspection      of Respondent’s         business site at Bay Shore, New York the

Secretary of Labor issued two citations to the Respondent charging a serious-repeat violation

of the standard at 29 CFR 1926.105(a), serious violation of the standard at 29 CFR

1926.451(i)(8) and other than serious violations of the standard at 29 CFR 1926.106(a) and
 2

(c). A hearing was held in New York, N.Y. No jurisdictional issues are in dispute, the

parties haying pleaded sufficient facts to establish that the Respondent is subject to the Act

and the Commission has jurisdiction of the parties and of the subject matter.

                     Alleged Violation of 29 CFR 1926.105(a)

 Section 1926.105(a) provides:

 1926.105 Safety Nets

 (a) Safety nets shall be provided when workplaces are more than 25 feet above the

ground or water surface, or other surfaces where the use of ladders, scaffolds, catch

platforms, temporary floors, safety lines, or safety belts is impractical.

  The citation alleges that the Respondent violated the standard because one of its

employees was painting a diagonal beam on a bridge located seventy-five feet above the

water and was not protected from falling by the use of a safety net. This allegation

was amended in the complaint to charge that the violation occurred because the employees

was not protected from falling “by a safety net, a safety belt, or any other means of fall

protection.”

   Compliance officer Donohue testified on direct examination that he appeared at the

jobsite at 10 A.M. (T 8) and spoke to the Respondent’s foreman, Mr. Magasic indicating

that a man on a diagonal bridge beam who was painting had no fall protection and the

foreman brought the man down (T 12). He further testified that he took two photographs

(C 1& 2 in evidence) at approximately lo:30 a.m., both of which depict employees on the

bridge structure. The employee lying on the steel was situated “close to the center of the

bridge at the highest point,--4th no fall protection, approximately 75 feet above water.”
 3

(T 11). On examination by counsel for the Respondent a distinct change of scenery took

place. In reconstructing the happenings of that day (October 16, 1992), Donohue testified

that the pictures were taken after the opening conference which his OSHA l(a) form reports

states occurred at 11:25 AM. Upon further examination he changed the time of picture

taking to 10 AM. after counsel confronted him with his own report which listed same. The

denouement of this episode was a complete reversal of his original testimony as follows:

Q. (Respondent’s Counsel): Now, based on the document that you entered at the

time in the regular course of your duties as a Compliance Officer, you actually took this

photograph that is marked Exhiiiit C-l for identification one hour and 25 minutes before

you presented your credentials; isn’t that a fact--based on the document?

A           Yes. (T19-20)

    Magasic testified that he first saw Donohue between 7:30 and 8 AM. on October 16,

after being told by one of his men than someone was taking pictures. He went over to

Donohue who stated, “I’m from the OSHA, and if I were you, I wouldn’t put those guys on

that rig.“, and with that he was told “I’ll come to you later.” Magasic testified he saw

Donohue about 11:30 AM.

 Of further interest herein is the distance the employee working on the beam was above

the ground or water surface. When questioned by the Court Donohue stated that the

roadbed was only 15 feet below structure but that if the employee was over the water it was

approximately seventy-five feet (T23-4). He further testified that “close to the center of the

bridge at the highest point, I observed a man lying on a piece of steel with no fall protection,

approximately 75 feet above water.” (Tll). To further confuse the issues, in later
 4

demonstrating by Exhibit C-3 (a Dept. of Transportation official map of the bridge),

Donahue states the location of the employee was where he wrote in “105(a) on the

map”; a review of this exhibit shows that the employee was very close to or working over

the roadbed and not as testified working at the highest point in the superstructure above the

water. I have had the opportunity of observing this witness upon the stand and to weigh

accordingly the crediiibility of his testimony. His testimony as to the circumstances giving rise

to the violation of 1926.105(a) is far from convincing and presents a pattern of

inconsistencies and equivocation both as to the time the photographs were taken, the area

where the employee was working as to cause one to doubt the veracity of the comDliance

officer’s statements as to where to violation occurred, what the employee was doing at the

time, and whether or not he was tied on or not (Donahue merely referred to the

photographs, which were not helpful). In short, the trustworthiness of his testimony relative

to a violation of 1926.105(a) is suspect. As Judge Learned Hand stated in NLRB IA

Remington Rand, 94 F’2d862,873 (2nd Cir), cert. den. 304 U.S. 576, we must rely in making

findings upon “the kind of evidence on which responsl%le persons are accustomed to rely on

inserious affairs.” The evidence as to the alleged violation of 1926.105(a) is totally

insuflicient to sustain the Secretary’s burden of proof. Accordingly, citation no. 1, item no.1

alleging a violation of 29 CFR 1926.105(a) is vacated.

                     Alleged Violation of 29 CFR 1926.451(i)(8)

  Section 1926.451 Scaffolding as relevant provides:

  (i)(Swinging scaffold) two-point suspension

5

 (8) Each employee shah be protected by an approved safety life belt attached to a

lifeline. The lifeline shall be securely attached to substantial members of the structure(not

scaffold), or to securely rigged lines, which will safely suspend the employee in case of a fall.

  Concerning this alleged violation, the compliance officer testified that he observed an

employee of the respondent doing painting work on a scaBold with his lanyard wrapped

around the guard rail of the scaffold. This is depicted in photographic exhibits C-l and C-2.

Said condition is in contravention of the standard that lifelines be attached to the structure

from which a scaffold is suspended, not the scaffold itself. The compliance officer stated

that fall protection was not provided in case the scaffold itself fell, causing the employee to

fall approximately 85 feet into the water with the possibility of being killed.

Respondent contends that if there was a violation in the ftiure to comply with the standard

it was unpreventable employee misconduct, and additionally the scaffold was being set up

prior to doing any work thereon, and it was infeasible to tie on during the process. The

compliance officer admitted that the respondent had a safety program in effeq that they

had a “rule requiring the workers to tie off their lanyard to a fixed structure”(T26).

Furthermore, he testified in response to the question, “How could the company have known

of this condition?, that They had a lifeline there, they had lifelines in place. The Foreman

directed him to tie off when working 25 feet above water.“(T46) Respondent’s foreman

testified there were weekly safety meeting wherein all safety matters were discussed and

emphasized including tieing off and in some instances disciplinary action had been taken.

The compliance officer interviewed none of the employees and neither sought nor obtained

any information from them as to the efficacy of the program, its communication to the
 6

employees or any other aspect of its enforcemenL The general testimony of Magesic as to

the concern of respondent with safety, the presence : of a written program, with regular safety

meetings and a presence of past discipline of employees for non-observance was not

discredited nor contradicted by direct evidence, nor by any legitimate inferences from the

evidence. It was not opposed to the probabilities nor by its nature surprising or suspicious.

Consequently, I am of the opinion there is no reason for denying the conclusiveness that the

respondent’s safety program was being carried out effectively, and that the violation that

occurred was one due to unpreventable employee misconduct. In making this finding?

concerning the presence of unpreventable employee misconduct, I have accepted the

testimony of Magasic and the documentary evidence regarding the issue of safety and the

company program to carry it out inasmuch as he impressed me as one testifying in a

straightforward, fhnk and convincing manner worthy of belief.

                        Alleged Violation of 29 CFR 1926.106(a)

  Section 1926.106(a) provides:

   (a) Employees working over or near water, where the danger of drowning exists, shall

be provided with U.S. Coast-Guard approved life jacket(s) or buoyant vests.

   The citation alleges that respondent violated the standard at 1926.105(a) because

employees were not wearing life jackets or buoyant work vests while they were painting a

roadway 40 feet above water. The compliance officer testified that he saw two men painting

from a hanging scaffold 40 feet above the water with “no type of life jackets or buoyant

work vests’. C-7 & C-8 in evidence are photographs he took of the scene. The

Respondent’s foreman stated that the men were not permitted to work without such vests,
 7

and no man was workingwithout one to his knowledge. The evidence shows that under the

company safety program, all men were provided with such vests (R-5 in ‘evidence). The

citation is based solely on a picture taken fkomat least twenty-fivefeet away; the compliance

officer stated he had never observed such vests being worn under the shirt, but there is no

evidence either that it is not done, nor that it is not possrble. There is no direct evidence

concerning the presence or absence of the use by the said employees of the requisite life

vests; the compliance officer never spoke to them, nor observed them in his presence. The

evidence as a whole is insufficientto support a findingof a violation of the standard.

The Secretary has not borne its burden of proof of a violation of the standard at 1926.106(a)

by a preponderance of the evidence, and the citation is vacated.

             Alleged Violation of 29 CFR 1926.106(c)

    Section 1926.106(c) provides:

    (c) Ring buoys with at least 90 feet of line shall be provided and readily available for

emergency rescue operations. Distance between rig buoys shall not exceed 200 feet.

    The citation alleged that the respondent violated 1926.106(c) because employees

painting the side of the roadway were not provided with ring buoys with at least 90 feet of

line attached. The compliance officer testified that during his inspection of the area where

the men were painting he observed no ring buoy with line as required; he observed a skiff

which allegedly belonged to the company and a barge and he observed no such ring thereon;

in contrast, the company foreman stated he had seen the ring buoy with 90 feet of line the

day before on the inspection (October 15,1992) on the boat next to the barge. Obviously,

being present the day before the inspection does not make it available thereafter. The
 8

record supports a finding that said ring buoy as required by the standard was not within 200

feet of where the employees were working. The preponderance of the evidence reasonably

demonstrates that the Respondent was in violation of 1926.106(c).The citation is affirmed

with no penalty assessed,

                          Findings of Fact and Conclusions of Law

All findings of fact relevant and necessary to a determination of the contested issues

have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil

Procedure. Proposed motions, findings or conclusions inconsistent with this order are

denied.

                                           ORDER

      10       The allegation of a serious-repeat violation of 29 CFR 1926.105(a) found in

citation no. 1, item 1 is vacated

      2a       The allegation of a serious violation of 29 CFR 1926.451(i)(8)found in citation

no. 1, item 2 is vacated.

      30       The allegation of an other than serious violation of 29 CE?R1926.106(a) found

in citation no. 5 item 1 is vacated,

      4.       The allegation of an other than serious violation of 29 CFR 1926.106(c) is

atied, and no penalty is assessed.

                              I
                                                          IRVIhG SOMMER
                                                          Chief Judge

DATED: OEC 22
Washington,
‘99g .C.