OSHRC Docket No. 15381

Occupational Safety and Health Review Commission

October 27, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

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

Arthur L. Forbes, for the employer




BARNAKO, Commissioner:

The issue in this case before us is whether administrative law judge Dee C. Blythe erred in finding that Thermo Tech, Inc. committed a serious violation of 29 C.F.R. 1926.451(c)(13) n1 by failing to equip scaffolds with midrails, toeboards, and wire mesh screens. We affirm the judge's finding of a violation with respect to the midrails and toeboards. We are divided, however, on whether the judge properly found a violation as to the screens.

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n1 This standard provides:

Guardrails made of lumber not less than 2 X 4 inches (or other material providing equivalent protection) approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboard 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.

Subparagraph 1926.451(a)(6) provides:

Where persons are required to work or pass under the scaffold, scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2-inch mesh, or the equivalent.


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Thermo Tech, an insulation contractor, employed seventeen workers to install insulation and a protective aluminum jacket (flashing) around three cylindrical towers, or pressure vessels, at a chemical plant in Freeport, Texas.   In order to install the material, Thermo Tech erected fifty-foot high metal tube and coupler scaffolds around each of the pressure vessels. Two-by-twelve planks laid across the scaffold framework formed a working surface for the employees installing the insulation. Horizontal tubular components of the scaffold framework served as 39 inch high railings for the employees on the planks, but the scaffolds were not equipped with midrails, toeboards, or wire mesh screens. The surface on which the scaffolds stood was concrete.

Employees on the scaffolds first installed the insulating material around the towers and then covered the insulation with flashing. The aluminum sheets composing the flashing were fabricated at a table on the ground about thirty feet from the nearest tower. The material was lifted onto a scaffold by means of a hoist operated by an employee on the ground about [*3]   twenty feet from the base of the scaffold. No employee was assigned work closer than twenty feet from the base of the scaffold.

Thermo Tech contends that the scaffold was built in accordance with normal industry practice, that there was no hazard requiring the use of a midrail or toeboard, and that screening was not necessary because employees were not required to work or pass under the scaffolds.

Judge Blythe rejected Thermo Tech's arguments.   He noted that the standard unequivocally requires midrails and toeboards on scaffolds such as Thermo Tech was using.   He also concluded that screening was required because Thermo Tech's employees had access to the area on the ground at the base of the scaffolds, citing our decisionin Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

Thermo Tech makes essentially the same arguments on review it made before the judge, and we agree that the judge properly found that the lack of midrails and toeboards violated the standard for the reasons he assigned. The standard assumes the existence of the hazard. Accordingly, the Secretary is not required to show that employees could have fallen [*4]   nor is he required to show that tools could have fallen.

I conclude, however, that the judge erred in finding that, because employees had access to the areas at the base of the scaffolds, the failure to use screening violated the standard.   It is true that according to the general rule the Secretary must show that employees had access to a zone of danger created by a condition in violation of a standard.   Gilles & Cotting, Inc., supra.   Here, however, 29 C.F.R. 1926.451(a)(6) requires screens only "where persons are required to work or pass under the scaffold." The job duties assigned to Thermo Tech's employees did not require them to come any closer than 20 feet of the base of the scaffold. Moreover, the record demonstrates that employees did not pass under the scaffold. Accordingly, screening was not required.

Chairman Cleary would affirm the judge's holding of a violation because employees had access to the areas beneath the scaffolds. He reads paragraph (6) of the pertinent section to compel the use of screening when there is a risk to employees who may pass under the scaffold. The word "required" is not always mandatory.   See Words and Phrases, "Required." Here, the [*5]   plain objective of the standard is to protect employees who may come under the scaffolds. The standard should be read in light of that objective.

Thermo Tech also contends that if a violation occurred, it is not properly classified as "serious." As the judge noted, however, the absence of midrails could result in an employee falling fifty feet to a concrete surface. Although Thermo Tech contends that such an accident is unlikely, it is well settled that, in determining whether a violation is serious, only the probable result and not the likelihood of an accident is relevant.   Sun Outdoor Advertising, Inc, 77 OSAHRC 35/E8, 5 BNA OSHC 1159, 1977-78 CCH OSHD para. 21,632 (No. 13334, 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357 (4th Cir., April 14, 1977).   An employee falling fifty feet to a concrete surface is in all likelihood going to suffer death or serious harm.   The violation was serious.

The judge assessed a penalty of $400.   We agree.   The penalty is appropriate in view of the gravity posed by the failure to install midrails and toeboards.

Accordingly, the judge's decision is affirmed insofar as it found a violation of 29 C.F.R. 1926.451(c)(13) due to the absence [*6]   of midrails and toeboards and assessed a penalty of $400.   Insofar as the absence of screening is concerned, the judge's decision is the final action of the Commission.   Vappi & Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).