JERRY BOTCHLET MASONRY CONSTRUCTION CO.

OSHRC Docket No. 13135

Occupational Safety and Health Review Commission

May 27, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Peter T. Van Dyke, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge James A. Cronin, dated March 9, 1976, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held, inter alia, that respondent was in serious violation of 29 U.S.C. 654(a)(2) for failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.451(d)(10) in that it had failed to provide guardrails, midrails, and toeboards on three scaffolds. The Judge assessed a penalty of $250 therefor. On review respondent contends that the evidence fails to establish the requisite employer knowledge of the alleged violative conditions. For reasons that follow, we modify the citation, recharacterize it as nonserious, and reduce the penalty to $50.

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n1 Chairman Barnako does not agree to this attachment.

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Respondent was doing masonry work on a gymnasium under construction when inspected. Upon his arrival at the jobsite, complainant's inspector located respondent's foreman in the office of the project's superintendent. Respondent's foreman then accompanied the inspector on a tour of the worksite.

At the time of the inspection, employees of respondent were working on three scaffolds, a main scaffold from which masonry work was being done and two "relay" scaffolds that were five feet lower than the level of the main scaffold. The main scaffold was protected by a toprail but had no midrail or toeboard. The two relay scaffolds were completely unguarded.

One of the relay scaffolds supported a container of mortar. The employee on that scaffold was engaged in supplying the masons on the higher main scaffold with mortar. The other relay scaffold supported a load of concrete blocks, and the employee on that scaffold was engaged in transferring the blocks to a higher level.

Although guardrails for the relay scaffolds were not erected at the time of the inspection, they were available at the worksite. The testimony about [*3] why they were not erected at the time of the inspection came from respondent's forklift operator. He explained that the relay scaffolds had initially been erected at the same level as the main scaffold with guardrails in place. A few hours before the inspection, it was discovered that the forklift could not stock the relay scaffolds at that level. The relay scaffolds were then disassembled and erected five feet lower. Once lowered, they were stocked by the forklift, an operation which could not be performed with the guardrails in place. The employees then commenced work on the relay scaffolds. The guardrails, however, were not reinstalled until the conclusion of the inspection.

The evidence is unclear as to the amount of time which transpired between the employees' commencement of work on the relay scaffolds after they were stocked and the beginning of the inspection. Varying estimates of the time the scaffolds were lowered and stocked were given by the forklift operator. From these estimates, it can be concluded that the period that employees worked on the scaffolds without guardrails may have lasted only a few minutes to over an hour. No evidence was presented on the whereabouts [*4] or activities of respondent's foreman during this period or on whether he could observe the workmen from the superintendent's office where he was located when the safety inspector arrived at the worksite. The evidence does show, however, that the foreman observed the employees working on the relay scaffold for a period of 20 minutes while accompanying the safety inspector on the inspection.

Respondent does not dispute complainant's contention that a violative condition existed when employees commenced working on the relay scaffolds after they were stocked without reerecting the guardrails. Rather, respondent maintains that a violation cannot be found because there is no evidence that respondent's foreman knew or should have known about the violative condition. Such knowledge cannot be found, respondent argues, because there is no evidence that the violative condition was visible to the foreman prior to the safety inspector's arrival and the duration of the violation was too brief to support an inference that the foreman should have known of the condition. Complainant counters that the duration of the violation was sufficiently long to support the inference that the foreman, in [*5] the exercise of his duties, should have known of its occurrence, and, in addition, that the evidence shows the foreman had actual knowledge of the violative condition because he witnessed it during the course of the inspection.

An employer's knowledge of the existence of a violation, either actual or constructive, is an essential element of proof for establishing a violation of the Act. Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Secretary v. Scheel Construction, Inc., OSAHRC Docket No. 8687, November 8, 1976. Therefore, it is incumbent upon complainant to establish by a preponderance of the evidence that the cited employer knew or should have, with the exercise of reasonable diligence, known of the alleged violative conditions. Secretary v. D.R. Johnson Lumber Company, 17 OSAHRC 426 (1975).

Our review of the evidence indicates that this showing has not been made with respect to the relay scaffolds. While the duration of the violative condition cannot be fixed with exactitude based on the evidence presented, it was unquestionably brief. This, coupled with the fact that there is no evidence that respondent's foreman witnessed the violation prior [*6] to the inspection, compels us to conclude that the evidence is inadequate to support a finding that the foreman should have known of the condition. Having the burden of proof, complainant must be charged with these evidentiary deficiencies. National Realty & Construction Company v. OSAHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973).

Furthermore, we reject complainant's contention that a finding of employer knowledge can be predicated on observations made by a representative of the employer while accompanying a safety inspector on an inspection. To allow such observations to serve as a basis for finding employer knowledge would tend to deter employers from exercising their right, afforded by 29 U.S.C. 657(e), to accompany complainant's representative on an inspection and, thereby, frustrate an important provision of the Act. See Secretary v. Western Waterproofing Co., Inc., OSAHRC Docket No. 1087, June 21, 1976. The portion of the citation pertaining to the lack of guardrails on the relay scaffolds will therefore be vacated.

We find nevertheless that a violation of 29 C.F.R. 1926.451(d)(10) has been established with respect to the lack of midrails and toeboards on [*7] the main scaffold. There is no evidence that they had ever been installed prior to the inspection. Employer knowledge of their absence can therefore be found because respondent's foreman should have known of this condition in the exercise of his duties. n2 Since toprails were in place on the main scaffold, however, this condition did not pose a substantial probability of death or serious injury and therefore constitutes a nonserious violation. Compare 29 U.S.C. 666(c) with 29 U.S.C. 666(j). In view of the evidence discussed in the Judge's decision relating to respondent's size, history, and good faith, and because the presence of a toprail lessened the gravity of the violation, a penalty of $50 is deemed appropriate for the lack of midrails and toeboards on the main scaffold.

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n2 In fact, in the proposed findings of fact which it submitted to the Judge, respondent acknowledged the existence of this violation by stating that "[t]he only violations which existed were the absence of mid-rails and toe boards."

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Accordingly, the portion of the citation pertaining to the relay scaffolds is vacated, as so modified the citation for a violation of 29 C.F.R. 1926.451(d)(10) is affirmed as nonserious, and a penalty of $50 is assessed therefor. The remaining findings of the Judge are affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I respectfully dissent from the disposition reached by the majority. In my view, a serious violation of the Act for failure to provide the guardrails mandated by 29 CFR 1926.451(d)(10) n3 has been established as to all three scaffolds.

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n3 1626.451 Scaffolding

* * *

(d) Tubular welded frame scaffolds.

* * *

(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[*9]

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It has been established that respondent's employees worked on two unguarded relay scaffolds for at least twenty minutes, the length of time the hazard was observed by the compliance officer. Estimates provided by respondent's forklift operator indicate that the condition may have existed for 1 1/2 hours before the arrival of the inspector. Nevertheless, finding that the duration of the violation was brief, and failing to find any evidence that respondent's foreman witnessed the violative condition before the compliance officer's arrival, the majority concludes that the Secretary has failed to establish that respondent knew or, with the exercise of reasonable diligence, could have known of the violative condition. I disagree.

In showing that at least two employees were working on the unguarded relay scaffolds the Secretary established a prima facie case of a violation of the cited standard. Respondent was then free to establish an "isolated ocurrence" defense by proving that the actions constituting noncompliance were: (a) unknown to the employer, and (b) contrary to both the employer's instructions [*10] and a uniformly enforced company work rule. Leo J. Martone & Associates, Inc., No. 11175 (April 11, 1977); Floyd S. Pike Electrical Contractors, Inc., 5 BNA OSHC 1088 1976-77 CCH OSHD para. 21,584 (No. 12398, 1977), petition for review docketed, No. 77-1659 (5th Cir., March 28, 1977); B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).

It is undisputed that at least two of respondent's employees worked on the unguarded relay scaffolds for a minimum of twenty minutes. Although respondent argues that it did not, and could not, have known of the violation, it has failed to adduce any evidence of a work rule, uniformly enforced or not, prohibiting employees from working on unguarded scaffolds. Furthermore, the fact that respondent's foreman observed the violative condition for twenty minutes while accompanying the compliance officer, without either ordering employees off the scaffold or directing that the guardrails be replaced, not only indicates respondent's knowledge of the violation, n4 but also indicates the absence of an enforced work rule prohibiting such conduct. This is evidence of routine practice that is relevant [*11] in proving the conduct of the employees. Fed. Rules Evid. Rule 406.

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n4 A foreman's knowledge of the violation is imputed to respondent unless respondent has proved that the supervisory employee himself was adequately supervised with regard to safety matters. The Kansas Power & Light Co., 5 BNA OSHC 1202, 1977-78 CCH OSHD para. 21,696 (No. 11015, 1977). Respondent has failed to make the requisite showing, and, accordingly, the foreman's knowledge is imputable to respondent.

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The majority's refusal to consider the foreman's observations made during the inspection as a basis for finding employer knowledge of the violation on the ground that it "would tend to deter employers from exercising their [section 8(e)] right" is conjecture having no foundation whatsoever in this record. It is no basis for excluding evidence cognizable under Fed. Rules Evid. Rule 403.

Also, under the Chairman's own theory, ". . . when a compliance officer observes a violation in the course of a routine inspection, the fact that [*12] the violation is visible and occurs on a worksite which is under the employer's control is sufficient to give rise to such a presumption [of knowledge] Green Constr. Co. and Massman Constr. Co., 4 BNA OSHC 1808, 1976-77 CCH OSHD para. 21,235 (1976). The presumption is fair in light of the fact it is evidence of routine practice. The presumption of knowledge has not been rebutted and, accordingly, the violation should be affirmed. As stated, I would affirm the violation because respondent has not sustained its affirmative defense.

Finally, I disagree with the majority's modifying to nonserious the violation occurring on the main scaffold. Although the scaffold had a top rail, it was not equipped with a midrail or toeboard. Had an employee fallen, he could have easily slipped beneath the top rail and off the scaffold to the ground twenty feet below. Thus, while the top rail reduced the likelihood of an accident, if one occurred the result would have been likely death or serious physical harm. L.C. Anderson & Sons, Inc., No. 9314 (April 28, 1977). The Commission has consistently held that the probability of an accident occurring is relevant only to the gravity of a violation. [*13] A "serious" violation exists if, in the event of an accident, there is a substantial probability of death or serious physical harm. California Stevedore and Ballast Co., 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff'd 517 F.2d 986 (9th Cir., 1975); Brady-Hamilton Stevedore Co., 3 BNA OSHC 1925, 1975-76 CCH OSHD para. 20,342 (No. 2265, 1976). Here, employees were exposed to the hazard of a 20-foot fall and the violation should be classified as "serious". n5 The presence of the top rail did, however, substantially reduce the likelihood of an accident. Therefore, the gravity of the violation is low, and I agree that a $50 penalty is appropriate.

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n5 I would also find that the hazardous condition on the relay scaffolds constitutes a serious violation.

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APPENDIX A

DECISION AND ORDER

Jane A. Matheson, For Complainant

William D. Curlee, For Respondent

Cronin, Judge, OSAHRC: This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et [*14] seq., hereafter called the Act) involving an inspection of a respondent worksite at 300 North Eastern Street, Moore, Oklahoma, on March 6, 1975.

As a result of this inspection, two citations were issued to respondent on March 19, 1975. Citation No. 1 alleged a non-serious violation of 29 C.F.R. 1926.450(a)(10), and Citation No. 2 alleged violations of four different standards which is combination were alleged to constitute a single "serious" violation of the Act. Subsequently, on April 9, 1975, an amendment to Citation No. 2 was issued deleting two of the originally alleged violations; a notification of proposed penalty was issued the same date proposing a $600.00 penalty for the "serious" violation. The respondent contests only the "serious" citation.

Amended Citation No. 2, dated April 9, 1975 alleges a "serious" violation of the Act as follows:

Item 1A 29 C.F.R. 1926.451(a)(2)

"Unstable objects were used to support scaffolds; i.e., supporting blocks and associated wooden plates with openings were used to support the tubular welding frame scaffold located adjacent to the east wall in the handball court and swimming pool area."

Item 1D 29 C.F.R. 1926.451(d)(10) [*15]

"Guardrails not less than 2 inches X 4 inches or the equivalent and approximately 42 inches in height with a midrail of 1-inch X 6-inch lumber or equivalent and toeboards were not installed at open ends and sides of the scaffold; i.e., the tubular welded frame scaffolds at the following location: (a) North side of the gym. (b) North end of scaffold adjacent to the east wall in the handball court and swimming pool area. (c) The scaffold used for transferring materials to the main scaffold near the center and south end in the handball court and swimming pool area."

Amended Citation No. 2, dated April 9, 1975, adds the following statement, in amended form, to the end of Item 1D as follows:

"The employees were exposed to hazards when they were required to work on the tubular welded frame scaffold that was supported by unstable objects and was not provided with guardrails, which resulted from two standards or regulations allegedly violated, which combined constitute a serious violation."

Standard 1926.451(a)(2), as promulgated by the Secretary provides:

"The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling [*16] or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support scaffolds or planks."

Standard 1926.451(d)(10), as promulgated by the Secretary, provides:

"Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section."

The hearing took place on November 4, 1975, at Oklahoma City, Oklahoma, and the parties submitted a post-hearing brief, or proposed findings of fact and conclusions of law.

Jurisdiction and Issues

Respondent does not contest Commission jurisdiction and the only issues to be determined are: Whether the respondent violated the Act as alleged, and, if it did, what penalty is appropriate?

Discussion

The alleged violation of 1926.451(a)(2) will be vacated, but a "serious" violation [*17] of 1926.451(d)(10) will be found.

In this Judge's view, the Secretary's evidence with respect to the adequacy of the foundation of the scaffold shown in Exhibit C-1 is insufficient to establish a violation of 1926.451(a)(2).

The Secretary's contention that the footing of the scaffold was not sound and rigid, or capable of carrying its intended load without settling or displacement relies on the factually unsupported opinions of the compliance officer that the smaller cinder block used as a wedge was an unstable object and that two of the scaffold legs were too near to the edge of the planking.

Although the language of the standard appears to prohibit any use of concrete blocks by characterizing them as "unstable objects," the Secretary himself issued a Field Information Memorandum clarifying this particular provision. As he there pointed out, a concrete block should not always be considered an "unstable object" when used as a base for scaffolding; the circumstances and techniques under which it is used also must be considered to determine the scaffolding's stability. (Field Information Memorandum #75-19 (P9711, Employment Safety and Health Guide, CCH))

The compliance officer [*18] did not attempt to test the rigidity of the scaffold, and did not know whether the cinder block, used as a wedge to make the scaffold rigid, was strong enough for that purpose. Further, the compliance officer was under the erroneous impression that the scaffold was not anchored and, therefore, capable of movement. The respondent's credible evidence, on the other hand, established that the scaffold was anchored to prevent movement, rigid, and its foundation capable of carrying its intended weight.

The evidence with respect to respondent's failure to install a toprail, midrail, and toeboards on three of its scaffolds clearly establishes a "serious" violation of 1926.451(d)(10). The main scaffold lacked a midrail and toeboard, and the two relay scaffolds were completely unguarded. The objective of the standard is plain -- to eliminate the hazard of employees falling off scaffolds which are more than 10 feet above the ground or floor level and to prevent material and tools from falling upon employees working underneath the scaffolds.

Although a fall with resulting injury was not a certainty on March 6, 1975, it obviously was a possibility, particularly from the "relay" scaffolds, [*19] and if a fall of 15 to 20 feet to a concrete floor had taken place there was a substantial probability that serious physical harm could have resulted.

Because the proposed penalty of $600.00 was based in part on the alleged violation of 1926.451(a)(2), which is to be vacated, this Judge believes a $600.00 penalty would be excessive.

All record evidence relating to the four factors prescribed by section 17(j) of the Act in assessing penalties has been considered. Respondent employs approximately 19 employees and its gross annual income is estimated to be between two and four million dollars. It has no prior history of violations, and there is nothing to indicate bad faith on respondent's part with respect to carrying out its compliance responsibilities under the Act.

In determining the gravity of any violation, serious or non-serious, several elements not intended to be exclusive must be considered: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury. Secretary v. National Realty and Construction Co., No. 85, 1 OSAHRC 731 [*20] (1972). Two employees were working on a 20 foot scaffold without a midrail and toeboard, and two other employees were exposed to falling hazards created by the completely unguarded "relay" scaffolds. The duration of exposure is uncertain, but apparently it was relatively brief. Respondent does provide standard railings for its scaffolds, and the incident on March 6th resulted primarily from an employee's oversight in not replacing the railings after hoisting the material to the "relay" scaffolds. As previously pointed out, while a fall was not a certainty, it was a possibility.

Based on the foregoing, and in order to insure that respondent railings in the future are promptly replaced after removal, a penalty of $250.00 will be assessed.

Findings of Fact

Upon the credible evidence of record, the following facts are found. Any proposed findings of fact inconsistent with these findings are denied:

1. On March 6, 1975, respondent employees were working from two, adjoining and abutting, but separate, scaffolds. The scaffold depicted in Exhibit C-1 ran in a northeasterly and southwesterly direction; the scaffold in Exhibit C-2 ran in a northerly and southerly direction. [*21] When employees were working on both scaffolds, plywood or scaffold planking was installed to provide access between both scaffolds at the working level (Tr. 10-12, 55-56, 61).

2. Unstable objects were not used to support the tubular welded frame scaffold shown in Exhibit C-1. The concrete blocks constituting part of the support for this scaffold were not unstable objects under the circumstances and techniques used. The smaller concrete block used as a wedge was strong enough to withstand the weight placed upon it. The three boards marked with "x's" on Exhibit C-1 were not part of the support for the scaffold (Tr. 63-64, 67, 72-75).

3. Prior to March 6, 1975, when this scaffold was at the first, five foot jack level, the respondent's scaffold erector tested the scaffold to see that it was level and didn't "rock" (Tr. 66). The compliance officer at the time of inspection did not test the rigidity of the scaffold and does not know the strength of the cinder block with respect to its ability to support the weight to which it was subjected (Tr. 24-27).

4. The scaffold legs were set on a foundation adequate to support the maximum intended load (Tr. 72-75).

5. To prevent movement, [*22] the three scaffolds shown in Exhibits C-1, C-2, and C-3 were anchored to the walls at the third jack level with number nine wire. These scaffolds had been so anchored a week to 10 days prior to March 6, 1975, and remained anchored until the scaffolds were taken down at the end of the job (Tr. 67-71, 90-97, 98-100, 107-108).

6. The main, or higher level, scaffold shown in C-2 and C-3 was at least 20 feet high, and the 2 "relay" scaffolds approximately 15 feet high (Tr. 14, 52). Two of respondent's employees were observed working on the main scaffold, and two other employees were observed for approximately a 20 minute period working from the two "relay" scaffolds (Tr. 14-15, 19; Exhibits C-2, C-3).

7. The main scaffold had a top rail but no midrail or toeboard. The two "relay" scaffolds lacked top rails, midrails, and toeboards on their open sides (Tr. 13-14; Exhibits C-2, C-3).

8. Standard railings were available for installation on the "relay" scaffolds in question but had been removed in the course of lowering these scaffolds on the morning of March 6, 1975 (Tr. 51-55).

9. In order to hoist the container of mortar and concrete block to the relay scaffolds, the standard [*23] rails on the "relay" scaffolds must be removed (Tr. 49-51; Exhibits C-2, C-3). The standard rails were replaced on the scaffolds only after the compliance officer made his observations, but before he left the worksite (Tr. 53).

Conclusions of Law

1. Respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C. 652(5).

(2). There is insufficient record evidence to establish that the footing or anchorage for the scaffold shown in Exhibit C-1 on March 6, 1975 was not sound and rigid, or incapable of carrying the maximum intended load without settling or displacement.

3. On March 6, 1975, respondent was not in violation of 29 C.F.R. 1926.451(a)(2).

4. On March 6, 1975, respondent was in violation of 29 C.F.R. 1926.451(d)(10), and this violation was "serious" within the meaning of 29 U.S.C. 666(j).

5. A penalty of $250.00 for respondent's "serious" violation of 29 C.F.R. 1926.451(d)(10) is appropriate.

ORDER

Based on the foregoing findings, conclusions of law, and the entire record, it is ORDERED:

1. Amended Citation No. 2, dated April 9, 1975, is modified by vacating the alleged violation of 29 C.F.R. 1926.451(a)(2), [*24] and as modified is AFFIRMED. A penalty of $250.00 is ASSESSED.

James A. Cronin, Jr., Judge, OSAHRC

Dated: March 9, 1976

Lawndale, California