JACK SHELTON, d/b/a JACK SHELTON PAINTING CONTRACTOR

OSHRC Docket No. 1111

Occupational Safety and Health Review Commission

October 9, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On March 2, 1973, Review Commission Judge Henry C. Winters issued a decision in this case.   Thereafter, on April 5, 1973, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.  

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

  CLEARY, COMMISSIONER, concurring in part and dissenting in part: I do not concur in the majority's affirming the Administrative Law Judge's order modifying the Secretary's citation for serious violation by ruling that it constituted a non-serious violation.

Respondent, a painting contractor, had a workplace at the site of the construction of a manufacturing plant at Jerome, Idaho that was inspected on May 16, 1972.   At this site, respondent employed as many as six employees.   On June 16, 1972, respondent was issued two citations, one alleging a serious violation and another alleging six non-serious violations.

Respondent was cited for a serious violation [*2]   of section 5(a)(2) of the Act for its failure to comply with the standard at 29 CFR §   1910.244(b) by using an abrasive blast cleaning nozzle in its sandblasting operation without the required manual operating valve, thus exposing the employee holding the nozzle to the hazard of the spray should he lose control of the nozzle.

There is undisputed evidence of record that the employee holding and directing the blast nozzle from his position on an elevated scaffold had no way to stop the sandblasting other than to "signal" another employee some distance away to shut off the   equipment.   With an air pressure of 150 to 200 p.s.i. a hose of this nature, if unfettered, would be likely to whip about.   Respondent conceded that the "force of the nozzle" or a whipping hose could cause serious injury.   Respondent argued, however, that a serious injury was unlikely.

The Judge found that these facts constituted a violation of the Act, but he erroneously concluded that the violation was not serious, within the meaning of section 17(k) of the Act.   He misinterpreted that section to require substantial probability that an accident occur as well as substantial probability that death or serious [*3]   physical injury could result in order for a violation to be serious.   The Commission has held that only the latter circumstance is relevant to the seriousness of a violation.   The probability of an accident occurring is relevant to the gravity of the violation and is considered in the process of assessing an appropriate penalty.   McDevitt and Street Co., Inc., No. 319 (May 1, 1974) and cases cited therein.

In this case, the violation was properly cited as being a serious violation within the meaning of section 17(k) of the Act.   In view of the limited exposure to the violation and the moderate probability of the occurrence of an accident, and in consideration of respondent's small size, good faith, and the absence of evidence regarding previous violations of safety and health regulations, I would assess a penalty of $200.

The majority's opinion also affirms the Administrative Law Judge's vacating items 5 and 6 of the citation for non-serious violations.   While I agree that these items should be vacated, I reach this conclusion for reasons other than those set forth by the Administrative Law Judge and affirmed by the majority.   Respondent was cited for its alleged failure to   [*4]   maintain a log of occupational injuries and illnesses as required by 29 CFR §   1904.2 (Item 5) and for its alleged failure to maintain a supplementary record of occupational injuries and illnesses as required by 29 CFR §   1904.4 (Item 6).   The Judge vacated item no. 5 on the grounds that "there are other ways to comply and the respondent may well have met the alternative requirements." This statement is unsupported by the evidence of record.   The reason assigned by the Judge for vacating item no. 6 is, however,   equally applicable to vacating item no. 5.   In regard to item no. 6 the Judge states, "No employee of respondent at the involved establishment had ever had an occupational injury or illness. Therefore, there could not have been a violation of 29 CFR §   1904.4." I conclude that in the absence of any "recordable occupational injury or illness" as defined by 29 CFR §   1904.12, employers should not be required by 29 CFR §   1904.2 or §   1904.4 to maintain blank pieces of paper.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE: This is an action under Section 10 of the Occupational Safety and Health Act of 1970, hereinafter called the Act, in which the Secretary [*5]   seeks affirmance of two citations, one alleging a serious violation and the other, six non-serious violations, and seeking the imposition of penalties proposed therefor.

Citation Number 1 and Citation for Serious Violation Number 1, both issued June 16, 1972 by the Secretary's Area Director at Portland, Oregon, state that on the basis of an inspection of a workplace under the onwership, operation or control of the Respondent at Tupperware Project, Jerome, Idaho and described as a construction site, it is alleged that the Respondent had violated the Act by failing to comply with certain safety and health standards or regulations, promulgated by the Secretary.   By Notification of Proposed Penalty, issued June 16, 1972, the Area Director notified Respondent of penalties proposed for each violation.

The specific violations described in Citation Number 1 are as follows:

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation

1. -- 1926.451(a)(13) -- Failure to provide a safe access ladder on the manually propelled mobil scaffold in Building "A." Workmen were using the frame of the scaffold as a ladder.

2. -- 1926.451(e)(3) -- Failure to use the   [*6]   proper length bracing on the top 4 foot section of the manually propelled mobile scaffold in Building "A." Workmen had used 6 foot bracing instead of 4 foot bracing

  3. -- 1926.451(e)(10 -- Failure to use a mid-rail on the manually propelled mobile scaffold in Building "A." The drop to lower level is 16 feet.

4. -- 29 CFR 1903.2(a) -- Failure to post Official Poster to inform employees of protections and obligations.

5. -- 29 CFR 1904.2 -- Failure to maintain a log of occupational injuries and illnesses on Form OSHA 101 or acceptable alternative record.

6. -- 29 CFR 1904.4 -- Failure to maintain a supplementary record of occupational injuries and illnesses on Form OSHA #101 or acceptable alternative record.

A total penalty of $75.00 was proposed for Item Numbers 1, 2 and 3.   No penalty was proposed for Item Numbers 4, 5 and 6.

The standards or regulations referred to in Citation Number 1 read as follows:

Item No. 1. -- 1926.451 Scaffolding (a) General Requirements (13) An access ladder or equivalent safe access shall be provided.

Item No. 2 -- 1926.451 Scaffolding (e) Manually propelled mobile scaffolds (3) Scaffolds shall be properly braced by cross bracing anf horizontal [*7]   bracing conforming with paragraph (d)(3) of this section.

Section (d)(3) reads: (d) Tubular welded frame scaffold (3) Scaffolds shall be properly braced by cross bracing or diagonal braces, or both, for securing vertical members together laterally, and the cross braces shall be of such length as will automatically square and aline vertical members so that the erected scaffold is always plumb, square and rigid.   All brace connections shall be made secure.

Item No. 4 -- 29 CFR 1903.2 Posting of Notice; availability of Act, regulations and applicable standards (a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act, and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.   Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted.   Each employer shall take   [*8]   steps to insure that such notices are not altered, defaced, or covered by other material.

Item No. 5 -- 29 CFR 1904.2 Log of occupational injuries and illnesses: (a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury   and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred.   For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used.   OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100.   If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA [*9]   Form No. 100 itself.   (b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances: (1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.   (2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience fo that establishment complete and current to a date within 45 calendar days.

Item No. 6 -- 29 CFR 1904.4 Supplementary record.   In addition to the log of occupational injuries and illnesses provided for under §   1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and   [*10]   Health Administration Form OSHA No. 101.   Workmen's compensation, insurance or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101.   If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

The violation described in Citation for Serious Violation and the penalty proposed therefor are as follows:

Standard or regulation allegedly violated -- Description of alleged violation -- Proposed penalty

CFR 1910.244(b) -- Failure to provide an abrasive blast cleaning nozzle equipped with an operating valve which must be held open manually on the small sand blaster -- $500.00

The standard or regulation referred to in Citation for Serious Violation reads as follows:

1910.244 Other portable tools and equipment. . . .

(b) Abrasive blast cleaning nozzles. The blast cleaning nozzles shall be equipped   with an operating valve which must be held open manually. A support shall be provided on which the nozzle may be mounted when it is not in use.

As this Judge interprets the Respondent's Notice of Contest of June 28, 1972,   [*11]   Respondent is contesting each alleged violation and proposed penalty and has admitted no allegation of the Complaint. n1

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n1 A letter of June 28, 1972 from Respondent's Business Manager states in part: "As per instructions of the Boise office of Occupational and Safety (sic) and on behalf of Jack Shelton Painting Company, I hereby protest and contest the proposed penalty and citations as noted OSHA -- 1 No. 43, dated June 16, 1972." The letter then went on to recite certain reasons for the protest.   The fact that these reasons referred only to some of the alleged violations does not limit the scope fo the contest.   No formal answer was filed but Respondent's letter of July 19, 1972 which is after the Complaint was filed herein, stated in part: " . . . as listed in our contest dated June 28, 1972 to the Portland, Oregon office of OSHA, we protect these citation and fines for the reasons mentioned therein."

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The case was heard by the Judge on October 18, 1972, at Boise, Idaho.   The Respondent was not represented by an [*12]   attorney.   He appeared pro se and by his business Manager.   A brief and proposed findings and order were submitted on behalf of the Secretary, but none were submitted on behalf of the Respondent.

DISCUSSION

The most important issue requiring discussion is the alleged serious violation. There is no doubt that the Respondent's employee was using a rented portable sand blasting machine that was not equipped with an operating valve which must be held open manually as required by 29 CFR 1910.244(b).   The Respondent had ordered a new portable sand blaster for this particular job.   Although he was not familiar with the specific standards issued by the Secretary, he was aware that OSHA existed and had specified that the new machine be equipped with everything required by OSHA.   The new sand blaster, properly equipped with the required nozzle, was tried on the job but found to be otherwise defective because of a missing part.   It was necessary to remove it from service and rent the replacement which was in use at the time of the inspection.

  Generally speaking the blaster in use here consisted of a remote tank called a pot, containing an air compressor and into which sand or other [*13]   abrasive material is placed.   On the top of the pot was a shut-off valve with a long handle readily accessible to a person standing next to the tank.   A long rubber hose leading from the tank has a nozzle from which the abrasive material comes out under high pressure, in this case at about 150 p.s.i.   At the worksite, two employees of Respondent were engaged in operating the blaster inside a building.   One employee was on a scaffold holding the nozzle end of the hose and directing the stream of abrasive material against parts of the building on or near the ceiling.   The other employee, referred to as a pot tender, was standing on the ground immediately next to the pot watching the man using the nozzle end.   In addition to keeping the blaster supplied with abrasive material, the only other duty of the pot tender was to stand by the pot and watch the operator of the nozzle so as to be able to shut off the blaster upon a signal from the operator or in the event of an emergency such as the accidental dropping of the nozzle end of the hose. On the day of the inspection the pot tender was doing exactly as he was supposed to do.   He was standing next to the pot looking up at the operator [*14]   on the scaffold.

The Respondent had been doing sandblasting for more than 25 years and hand never heard of the kind of nozzle required by the above standard.   He had no yet carefully examined the recently purchased blaster. During those 25 years he has used the same method of sandblasting as was used at the time of inspection. This was customary to the industry in the area where his business is conducted.   Respondent has never heard of any employee being injured by a sandblaster.

The Secretary,s compliance officer recited an incident which happened when he was safety director of a group of industrial concerns where an employee was severly injured on the arm when he dropped the nozzle end of a blaster hose which was also not equipped with the automatic shut-off now required by the above standard.   All of the details of that incident are not and should not be of record in this case.   The compliance officer was of the opinion that if an employee dropped a hose not equipped   with the required shut-off valve the hose would have a tendency to whip and if it hits any part of the human body would cut into flesh very, very strikingly.   The Respondent testified that if a sandblast [*15]   hose is dropped, it just generally falls to the ground and the pot tender is generally right there and shuts off the blaster. The Respondent recognized that the force of the nozzle of a blaster could seriously injure a person but he did not believe it was likely to do so.

As indicated, there is no doubt that the Respondent violated 29 CFR 1910.244(b).   The Judge is not at all convinced, however, that there was a substantial probability that death or serious physical harm could result from the practices and operations used by Respondent at the time of the inspection. It is very likely that the compliance officer in making a recommendation to classify the violation as a serious one was unduly influenced by the one incident in his personal experience.   The violation is not a serious violation within the meaning of Section 17(k) of the Act.   In this Judge's opinion the violation is a non-serious violation with a relatively low level of gravity.   Giving consideration to the low level of gravity, and particularly to the small size of Respondent's business, as well as to the demonstrated good faith of the Respondent and the absence of a past history of violations, the Judge concludes   [*16]   that no monetary penalty should be imposed.

Brief comments are in order with respect to the alleged non-serious violations.

Item Numbers 1, 2 and 3 concern the alleged failure of Respondent to comply with standards in connection with the use of a manually propelled mobile scaffold, approximately 16 feet in height, on which an employee was standing while engaged in sandblasting.

Item Number 1 alleges that the Respondent failed to provide a safe access ladder and that the men were using the frame of the scaffold as a ladder. The Respondent admitted that the workmen were using the frame of the scaffold as a ladder but contended this was a safe method of getting to the top, having been the standard practice in his business for more than 25 years.   When asked for his opinion of the hazard involved in failing to have an   access ladder to the scaffolding, the compliance officer testified (TR 17):

A.   These scaffoldings, if they are not equipped with access ladder, a workman has to climb basically part of the reinforcing framework on these scaffoldings. These are normally very unequal in length.   They vary up to 18 inches, and in some instances down to 6, and you are not climbing [*17]   in a horizontal or vertical position.   You used to have to climb this framework, across this framework.

The compliance officer must have referring to scaffolds other than the one involved here.   An examination of the photographs of the involved scaffold [Exhibits 1 and 2 but Exhibit 2 particularly] discloses that there were horizontal bars at regular intervals up at least one side of the scaffold. There is one bar approximately 2 feet from the ground and another every 2 feet up to the floor of the scaffold which was approximately 16 feet from the floor of the building.   This Judge cannot conclude, upon the meager evidence in this record that the use of the scaffolding itself as a means of access to the top is not "equivalent safe access" within the meaning of the somewhat vague standard at 29 CFR 1926.541(a)(13).   Item Number 1 should be vacated.

There is no doubt that the scaffold was not properly braced so as to comply with the requirements of 29 CFR 1926.451(e)(3) which incorporates by reference 29 CFR 1926.451 (d)(3).   The cross-bracing at the top section of the scaffold was shorter than the cross-bracing on the sections below, with the result that two of the four sides of [*18]   the scaffold bowed in slightly at the top. The language in the Citation explaining that "workman had used 6 foot bracing instead of 4 foot bracing" is difficult to understand in the light of the photographs received in evidence (Exhibits 1 and 2).   The Respondent's explanation is more logical although not well articulated.   As this Judge interprets what the Respondent was trying to explain, an employee made a mistake in erecting the scaffold and the mistake consisted of using as criss-cross bracing on the top platform certain pieces, which were intended to be used as horizontal railing around the top of the scaffolding. As soon as the Respondent arrived on the scene he noticed the error and used the correct bracing which was there all the time.   The Judge is unable to conclude that under the   circumstances existing at the time of the inspection the scaffold was weakened significantly because of the faulty erection.   There was undoubtedly a violation but was of a low level and no penalty should be imposed for this item.

The violation alleged at Item Number 3 was in a sense connected with the failure to use the proper parts in the proper place in erecting the scaffold.   [*19]   There would appear to have been enough braces to have provided a midrail as well as the top rail which was in place at the time of the inspection. The excuse offered by Respondent that the midrail was not used because of the obstruction caused by light fixtures extending down from the ceiling does not have validity because the top railing was in place.   Apparently, the Respondent did not understand what is meant by the term "midrail." In this Judge's opinion, the absence of a midrail was not so hazardous as to warrant the imposition of a penalty.   The employees had been furnished with safety belts to use when they were needed.

Item Number 4 should be vacated because there is no evidence in this proceeding that OSHA had furnished the Respondent with the poster required by 29 CFR 1903.2(a) to be posted.

There was evidence that the Respondent did not maintain a log of occupational injuries and illnesses on OSHA Form No. 100 at the construction job site in question.   But this is not necessarily required by the applicable regulations. There are other ways to comply and the Respondent may well have met the alternative requirements.

No employee of Respondent at the involved establishment [*20]   had ever had an occupational injury or illness. Therefor, there could not have been a violation of 29 CFR 1904.4.   As a matter of fact, the last time the Respondent was made aware of an injury or illness of one of his employees was two or three years previously when an employee got a splinter in his finger.   Item Number 6 should be vacated.

In consideration of the entire record and of the proposed findings and brief submitted on behalf of the Secretary and of the position of Respondent expressed orally at the hearing, the Judge makes and enters the following Findings of Fact and Conclusions of Law:

  FINDINGS OF FACT

1.   at all times pertinent hereto, the Respondent, Jack Shelton, doing business as Shelton Painting Contractor, maintained a work place in the State of Idaho, near Jerome, Idaho, where he was engaged in construction work, in connection with which he employed six employees.

2.   At all times pertinent hereto, the Respondent used equipment which was purchased outside the State of Idaho and brought directly to Respondent in the State of Idaho.

3.   On May 16 and 17, 1972, at the above described worksite the Respondent failed to comply with standards promulgated [*21]   by the Secretary in the following respects:

(a) The Respondent failed to equip an abrasive blast cleaning nozzle with an operating valve which must be held open manually, as required by 29 CFR 1910.244(b) (Citation for Serious Violation Number 1);

(b) The Respondent failed to use the proper length bracing on the top section of a manually propelled mobile scaffolding in Building "A", as required by 29 CFR 1926.451(e)(3) (Item Number 2 of Citation Number 1); and

(c) The Respondent failed to use a midrail above the platform on the manually propelled mobile scaffold in Building "A", as required by 29 CFR 1926.451(e)(10) (Item Number 3 of Citation Number 1).

4.   Each instance of non-compliance mentioned in paragraph 3 of these Findings of FAct had a direct and immediate relationship to safety and health but was not of a serious nature.

5.   Each instance of non-compliance found herein to have existed has been corrected.

6.   At all times herein pertinent, the Respondent has acted in good faith.

7.   Respondent has no history of past violations.

CONCLUSIONS OF LAW

1.   At all times herein pertinent, the Respondent was and is   engaged in a business affecting commerce and subject [*22]   to the provisions of the Act.

2.   This Commission has jurisdiction of the parties and of the subject matter of this case.

3.   With respect to Item Numbers 1, 4, 5 and 6 of Citation Number 1, issued June 16, 1972, the Secretary has failed to prove a violation of the Act and these item numbers and any penalties proposed therefor should be vacated.

4.   Each instance of non-compliance referred to in Paragraph 3 of Findings of Fact, including the alleged serious violation, constitutes a non-serious violation of a standard promulgated pursuant to Section 6 of the Act and subjects the Respondent to the assessment of a civil penalty as provided in Section 17(c) of the Act.

5.   Due consideration having been given to the appropriateness of the penalties with respect to the size of the business of Respondent, the gravity of the violations, the good faith of the Respondent, and the history of previous violations, no penalties should be imposed for the violations found to have existed.

ORDER

In view of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

(1) Item Numbers 1, 4, 5 and 6 of Citation Number 1. issued June 16, 1972, be and they are hereby, vacated;

(2) The   [*23]   violation alleged in Citation for Serious Violation Number 1, issued June 16, 1972, be and it is hereby modified so as to allege a non-serious violation, and as so modified by, and it is hereby, affirmed;

(3) Item Numbers 2 and 3 of Citation Number 1, issued June 16, 1972, be, and they are hereby, affirmed; and

(4) The penalties proposed in Notification of Proposed Penalty, issued June 16, 1972, be, and they are hereby, vacated.