CHARLES H. TOMPKINS

OSHRC Docket No. 15428

Occupational Safety and Health Review Commission

November 8, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Harold J. Engel, Assistant Counsel for Regional Litigation, U.S. Department of Labor

Ronald F. Sullivan, Safety Supervisor, J.A. Jones Construction Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge Joyce Capps is before the Commission pursuant to 29 U.S.C. 661(i). In her decision, the Judge, among other things, n1 vacated Citations III and IV for "serious" violations of 29 U.S.C. 654(a)(2), issued to respondent Charles H. Tompkins Co. Citation III alleged a failure to comply with the standard published at 29 CFR 1926.451(a)(13), n2 and Citation IV alleged noncompliance with the standard at 29 CFR 1926.550(a)(9). n3

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n1 The Judge also affirmed two other citations for failure to comply with various standards. Neither party has excepted to the disposition of these citations. They are not before us.

n2 1926.451 Scaffolding.

(a) General requirements.

* * *

(13) An access ladder or equivalent safe access shall be provided (emphasis added).

n3 1926.550 Cranes and derricks.

(a) General requirements.

* * *

(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane (emphasis added).

[*2]

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A petition for discretionary review was filed by the Secretary. The petition was granted, and submissions were invited on the following issues: n4

(1) Whether the Administrative Law Judge erred in holding that scaffold "bucks" constitute "equivalent safe access" within the meaning of 29 CFR 1926.451(a)(13)? n5

(2) (a) Whether the Judge erred in finding that the area around the crane was not "accessible" within the meaning of 29 CFR 1926.550(a)(9)?

(b) If a violation of 29 CFR 1926.550(a)(9) occurred, was it "serious"?

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n4 A direction for review was also issued by former Commissioner Moran which did not specify any issues.

n5 A scaffold buck was defined by the compliance officer as a "section of the scaffold which is formed in a H-shape with cross bracing." It was the cross bracings, or rungs, which were used by respondent's employees as access to level 8 of the scaffold.

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For reasons that follow, we conclude that there was a [*3] failure to comply with 1926.451(a)(13), but that the violation was de minimis. The Judge's disposition of the 1926.550(a)(9) violation is affirmed.

In September 1975, respondent was engaged as the general contractor for the building of an addition to the National Gallery of Art in Washington, D.C. In an area of the worksite referred to as POD 2, respondent was erecting a series of work platforms. At the time of the inspection platforms up to Level 7 had been completed, and about 11 employees were engaged in the construction of the platform at Level 8. There was a metal scaffold running from Level 6 to Level 8. The compliance officer observed that no ladder was provided from Level 7 to Level 8, which were 14 feet apart. To reach Level 8, the employees had to climb the rungs of the scaffold bucks which were 18-20 inches apart. The rungs of a ladder would have been 12 inches apart. Section 1926.450(a)(3)-(5). The compliance officer noted that if an employee had fallen from the scaffold bucks, he could have fallen 30 feet to Level 6 below. Respondent's failure to provide a ladder between Level 7 and Level 8 resulted in the citation for noncompliance with 1926.451(a)(13). [*4] A penalty of $900 was proposed for the alleged violation.

During the inspection, the compliance officer also observed a 60-ton P and H crane located between two walls of a building which was used as respondent's personnel office. The two walls formed an L-shaped area. One of the walls (Wall A) was to the side of the driver's side of the crane, while the other wall (Wall B) was to the rear of the crane. The driver's side of the crane was five feet from Wall A, and the rear of the crane was five feet from Wall B. The building under construction was 25 feet from the passenger side of the crane.

The crane rotated 90 degrees toward the building under construction and back again. When rotated, the crane's counterweight came no closer than two feet from either wall.

The compliance officer noted that respondent failed to erect barricades between the crane and the two walls. Although no employees were observed between the crane and the walls, several of respondent's employees were seen walking within 5 to 25 feet of the crane. Neither wall contained a door or other means of ingress or egress from the building. Because respondent failed to erect barricades between the access to [*5] the areas between the crane and the walls, respondent was cited for a failure to comply with 1926.550(a)(9). A penalty of $900 was proposed.

In her decision, Judge Capps held that the scaffold bucks provided an "equivalent safe access" to the platform being constructed at Level 8. Although she agreed with the Secretary that a fall from the scaffold bucks would be hazardous, she noted that the same hazard would exist for employees falling off a ladder. Accordingly, she vacated the citation for noncompliance with 1926.451(a)(13).

Regarding the alleged failure to comply with 1926.550(a)(9) Judge Capps found that although it was possible for an employee to enter the area between the walls and the crane, there was no "conceivable reason" for an employee "to go to the inordinate trouble" of entering the area. She concluded that the area behind the crane was not "accessible" under the standard. She further concluded that the walls themselves were a form of barricade contemplated by the standard, and therefore that respondent was in compliance with the standard. Alternatively, the Judge held that should her decision be reversed and a violation found, the violation was not serious. [*6] The Judge noted that the crane rotated very slowly and that if an employee had been struck by the counterweight he would merely be nudged or pushed down.

On review, the Secretary argues that the scaffold bucks climbed by the employees were neither equivalent to a ladder nor as safe. The Secretary points out that the specifications for ladders, which are set forth in the American National Safety Institute (ANSI) standard A 14.1-1968, A 14.2-1956, and A 14.3-1956, and incorporated by reference at 29 CFR 1926.450(a)(3)-(5), require a uniform distance between rungs of 12 inches. The rungs on respondent's scaffold bucks were 18 to 20 inches apart. According to the Secretary this increases the possibility of an employee slipping.

We agree with the Secretary that the scaffold bucks were not equivalent to a ladder and therefore there was no compliance with the standard. Rust Engineering Co. and Allegheny Industrial Electrical Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD para. 21,693 (Nos. 12200 & 12201, 1977); Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD para. 21,790 (No. 12589, 1977). However, we find the violation to be de minimis [*7] because climbing safety was not appreciably diminished by the additional distance between the rungs. We note that the rungs in Rust Engineering were spaced 19 to 21 inches apart. In Perini the rungs were spaced every 19 to 20 inches. Accordingly, an abatement order is not appropriate in this case.

Regarding respondent's failure to barricade the rear of the crane's rotating superstructure, the Secretary argues that it was possible, either through inadvertence or design, for an employee to walk into the area between the building and the crane. According to the Secretary, it is reasonable to infer that there were many employees passing near the crane due to its location adjacent to both the main thoroughfare at the worksite and respondent's office. Thus, it is argued, potential exposure was established.

Moreover, the Secretary cites to the testimony of respondent's apprentice operating engineer, Timothy Reese, that there were one or two occasions when the crane rotated a full 360 degrees. On these occasions, it is argued, the area of danger would be expanded to include the additional arc of the crane. Finally, the Secretary contends that if an employee had been struck [*8] by the rotating crane the results could have been death or serious injury, thereby establishing a serious violation.

We are not persuaded. We construe the term "accessible" in the context of the standard to mean "reasonably accessible." Cornell Company, Inc., 77 OSHRC/ 55/D13, 5 BNA OSHC 1736, 1977-78 CCH OSHD para. 22,095 (No. 8721, 1977). See "Words and Phrases," "accessible." Although the Secretary is correct in noting the possibility of an employee moving between either wall and the crane, we conclude that possibility to be remote. As the Judge noted, "there is no conceivable reason for anyone to go to the inordinate trouble of squeezing in between the rear of the crane and those walls."

The Secretary has not proved that there was a wider area of accessibility. The Judge found that respondent's crane "only rotated one-fourth circle." The Judge did not credit the testimony of respondent's apprentice operating engineer that the crane, on one or two occasions, had rotated 360 degrees. We defer to her credibility finding. Williams Enterprises, Inc., 77 OSAHRC 165/C7, 5 BNA OSHC 1785, 1977-78 CCH OSHD para. 22,113 (No. 12100, 1977).

Accordingly, it is ORDERED that [*9] Citation III for failure to comply with 1926.451(a)(13) is affirmed as de minimis, and no penalty is assessed. In all other respects, the Judge's decision is affirmed.