A. C. GONZALEZ PAINTING CONTRACTORS, INC.

OSHRC Docket No. 4319

Occupational Safety and Health Review Commission

April 14, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

A. C. Gonzalez, Painting Contractor, Inc., for the employer

Amado L. Garcia, Accountant, A. C. Gonzalez Painting Contractors, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On April 29, 1974, Administrative Law Judge John S. Patton issued a decision dismissing the citation and complaint. Complainant, the Secretary of Labor, had alleged that respondent, A.C. gonzalez Painting Contractors, Inc., was in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"].

Following this dismissal, complainant filed a petition with the full Commission seeking review of the Judge's decision. Exceptions were taken to the portions of the decision holding that noncompliance with 29 CFR 1926.451(i)(8) [hereinafter 1926.451(i)(8)] was not established and that 29 CFR 1926.28(a), standing alone, was too vague to be enforceable.

Review was ordered on May 29, 1974, pursuant to section 12(j) of the Act, on the issues raised in complainant's petition for discretionary review. [*2]

Respondent is a corporation engaged in the painting contracting business. An authorized representative of complainant conducted an inspection of respondent's worksite at a Holiday Inn Motel in Miami Springs, Florida, on August 2, 1973. On this date, respondent was performing exterior painting operations on the ground through tenth floors of the motel.

In the citation for serious violation issued to respondent on August 8, 1973, complainant alleged that respondent failed "to protect each employee on [a] swinging scaffold at the ninth floor level by a safety life belt attached to a lifeline." This conduct was alleged to constitute a failure to comply with the safety standards at 29 CFR 1926.28(a) and 1926.451(i)(8). The standards read as follows:

1926.28 Personal Protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

1926.451 Scaffolding.

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(i) (Swinging scaffolds) two-point suspension.

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(8) On suspension [*3] scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall 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. In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be appropriately changed as the work progresses.

There is little dispute regarding the facts surrounding the alleged violation. The compliance officer observed two of respondent's employees painting while on a scaffold at the exterior of the ninth floor of the motel. Neither employee was wearing a "safety line belt attached to a lifeline." n1 Indeed, there were neither safety belts nor lifelines in the area of the scaffold. Photographic exhibits corroborate the observations of the compliance officer and also show that the scaffold was [*4] of the two-point suspension" type as defined at 29 CFR 1926.452(b)(34). n2

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n1 See 1926.451(i)(8).

n2 This standard reads:

1926.452 Definitions applicable to this subpart.

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(b) "Scaffolding" -

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(34) "Two-point suspension scaffold (swinging scaffold)" - A scaffold, the platform of which is supported by hangers (stirrups) at two points, suspended from overhead supports so as to permit the raising or lowering of the platform to the desired working position by tackle or hoisting machines.

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We conclude that noncompliance with 1926.451(i)(8) was proved by complainant. Judge Patton held, however, that complainant failed to show that the standard was applicable to the cited working condition. He concluded that the first two sentences of subparagraph (8) of 1926.451(i) limit the application of the entire subparagraph, including the safety belt and lifeline requirements, to scaffolds designed for working loads of either 500 or 750 pounds. The Judge then reasoned that, in the absence of proof [*5] indicating that the scaffold was designed for one of these two load limits, the citation could not be affirmed.

Complainant excepts to the Judge's interpretation of the standard. He argues that a reading of the standard reveals two independent and clearly divisible requirements. The first is that no more than two men be permitted to work on a swinging scaffold with a 500 pound working load, or no more than three men on a scaffold with a 750 pound limit. The second requirement is that each employee on a swinging scaffold, without limitation as to its working load, must be protected by a safety belt attached to a properly secured lifeline. We agree with the interpretation urged by complainant.

Provisions in 1926.451(i)(8) dealing with the load limits of scaffolds are designed to prevent overloading and resultant falling of the scaffold itself. In contrast, those provisions dealing with safety belts and lifelines are designed to protect employees in the event they slip from the scaffold or in the event the scaffold collapses.

It was error for the Judge to find a necessary relationship of scaffold weight load requirements with safety belt and lifeline requirements when clearly [*6] no relationship exists. Complainant was only required to prove that the cited scaffold was of the "two-point suspension" type and that respondent's employees were not wearing approved safety belts that were attached to properly secured lifelines. These facts having been proved, we find that noncompliance with 1926.451(i)(8) has been established.

Respondent's failure to comply with 1926.451(i)(8) constituted a "serious" violation within the meaning of 17(k) of the Act. There is a substantial probability that death or serious physical harm could have resulted if respondent's unprotected employees fell from the scaffold while it was located at the ninth floor level. Moreover, on this record it is clear that respondent, with the exercise of reasonable diligence, could have known of the presence of the violation. Mr. A. C. Gonzalez, respondent's manager, testified that he was aware that employees often removed their safety belts as soon as he left a worksite. It should be noted, however, that this is not a case where a system of safety belts and lifelines was set up on the scaffold and not used by the employees. The evidence shows that there was no personal protective system [*7] available for use on the scaffold.

Accordingly, we reverse the vacating of the citation. The citation for serious violation alleging a failure to comply with 1926.451(i)(8) is affirmed. n3

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n3 Inasmuch as we find that a serious violation of 1926.451(i)(8) was slown, we do not reach the issue of whether it was error for the Judge to rule that 29 CFR 1926.28(a), standing alone, was too vague to be enforceable under the facts of this case.

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Complainant proposed a $500 penalty for this serious violation. We note that the gravity of the violation was relatively high inasmuch as two employees were exposed to a possible fall of approximately 85 feet. Respondent is, however, a small corporation having no history of previous violations of the Act. In addition, there is evidence on the record indicating respondent's good faith. n4 Considering the evidence in light of section 17(j) of the Act, we assess a $500 penalty.

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n4 Respondent owned safety belts and lifelines and advised its employees to use them while they worked on scaffolds. Nevertheless, it is clear that respondent knew that such efforts were not accomplishing compliance with the standard.

[*8]

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So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The disposition below was correct and should be affirmed. Furthermore, Judge Patton correctly concluded for the reasons stated in his decision, which is attached hereto as Appendix A, that the evidence did not establish that respondent had failed to comply with the occupational safety and health standard codified at 29 C.F.R. 1926.451(i)(8).

The Judge below concluded, in effect, that the third sentence of section 1926.451(i)(8) was not severable from the first two sentences thereof and, therefore, that the requirement in the third sentence for a "safety life belt attached to a lifeline" applied only to suspension scaffolds designed for working loads of 500 or 750 pounds. My colleagues reject this construction by interpreting the standard to set forth two entirely unrelated requirements.

Paragraph (i) of section 1926.451 contains 11 subparagraphs. Nine of these subparagraphs contain requirements which clearly apply to all two-point suspension scaffolds. Subparagraphs (8), the one here in issue, and subparagraph (10) are the only ones which contain [*9] requirements that only pertain to particular types of two-point suspension scaffolds. Subparagraph (10) is different from subparagraph (8), however, in that the former contains four of its own subparagraphs which are preceded by subtitles designating the specific types of platforms (ladder-type, plank-type, beam-type, and light metal-type) to which each subparagraph pertains.

The layout of paragraph (i) obviously leads employers to conclude that, if the third sentence of subparagraph (8) was intended to apply to all two-point suspension scaffolds, the requirement therein for fall protection would have been stated in a separate subparagraph rather than in one which opens with limitations on the number of persons that are permitted to work on scaffolds designed for certain specified working loads. Furthermore, analysis of Part 1926 indicates that individual paragraphs and subparagraphs normally address themselves to a particular subject matter and do not have totally unrelated and inseverable parts. After all, if (theoretically) subject A is the subject matter of a particular paragraph or subparagraph, why in the same paragraph or subparagraph add subject B which is totally unrelated [*10] to subject A?

As the United States Court of Appeals for the Fifth Circuit has recently stated in Diamond Roofing Co. v. OSAHRC, No. 73-3704 (5th Cir., March 15, 1976):

"An employer . . . is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents."

* * *

"The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them"

The conclusions of the Circuit Court area consistent with the findings made in [*11] a recent study by the Subcommittee on Environmental Problems Affecting Small Business, entitled The Effects of the Administration of the Occupational Safety and Health Act on Small Business. n5 The subcommittee found that:

"[G]iven the technical nature of [complainant's] responsibilities and the diverse nature of those who must adhere to them, [complainant] has a duty to write its standards in a clear and concise manner so that they can be easily understood by the employer and the employee and thereby quickly implemented." n6

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n5 H.R. Rep. No. 93-1608, 93d Cong., 2d Sess. (1974).

n6 Id. at 23.

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The standard here in issue gives employers a "fair warning" that a safety life belt attached to a lifeline is required for employees working on two-point suspension scaffolds designed for working loads of 500 or 750 pounds - nothing else. n7 Since the evidence does not establish that respondent's scaffold was designed for either of these working loads, the citation for noncompliance with section 1926.451(i)(8) was properly [*12] vacated by the Judge.

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n7 It is the Secretary of Labor's responsibility to write standards that are clear and understandable. If he intended that the requirement apply to all two-point suspension scaffolds, he should have said so. Furthermore, it is an easy matter for him to clarify that intent by promulgating a change in the regulation. Diamond Roofing Co. v. OSAHRC, supra.

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There remains, however, the charge of failure to comply with complainant's standard codified at 29 C.F.R. 1926.28(a) for failure to provide this same safety equipment. When originally adopted as an occupational safety standard, this standard provided that:

"[t]he employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees." (Emphasis added.)

Prior to the inspection in this case, the standard was modified by substituting the [*13] word "or" for the word "and." For the reasons given in my separate opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), the modification was improperly promulgated and the original version remains in effect. Therefore, as I stated in that opinion, in order to establish a failure to comply with this standard, proof of two elements is necessary: (1) that there was exposure to a hazardous condition warranting the use of personal protective equipment, and (2) that there was a failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.

Since, as previously stated, the complainant failed to establish that 29 C.F.R. 1926.451(i)(8) applied to respondent's scaffold, no violation of 29 U.S.C. 654(a)(2) for failure to comply with 29 C.F.R. 1926.28(a) has been proved. Standing alone, this standard cannot be the basis of a violation.

APPENDIX A

DECISION

This case is before John S. Patton, the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus A.C. Gonzalez Painting Contractors, Inc., hereinafter referred to as [*14] respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604; 29 U.S.C. 651, et seq.) hereinafter referred to as the Act and Occupational Safety and Health standards 29 CFR 1926.28(a) and 29 CFR 1926.451(i)(8). Hearing was held before the undersigned Judge in Miami, Florida, on March 8, 1974. Mr. Stephen J. Simko, Jr., appeared as counsel for the complainant. Mr. Amado L. Garcia represented the respondent. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It is alleged that respondent violated standards 29 CFR 1926.28(a) and 29 CFR 1926.451(i)(8) in that respondent failed to protect its employees working on a swinging scaffold at the 9th floor level of a construction project in Miami, Florida, by requiring said employees to wear a safety life belt attached to a life line. Standard 29 CFR 1926.28(a) reads as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees. [*15]

Standard 29 CFR 1926.451(i)(8) reads as follows:

On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall be protected by an approved safety life belt attached to a life line. The life line shall be securely attached to substantial members of the structure (not scaffold) or to securely rigged lines which will safely suspend the employees in case of a fall. In order to keep the life line continuously attached with the minimum of slack to a fixed structure, the attachment point of the life line shall be appropriately changed as the work progresses.

EVIDENCE IN THE CASE

Mr. John Arnette, who was the compliance officer with the complainant at the time of the inspection on August 2, 1973, and now is safety representative for the State of Florida, testified on behalf of complainant. He testified that on August 2, 1973, he went to the respondent's job site at the Holiday Inn in Miami, Florida, and observed that two employees were working from a scaffold which was nine [*16] stories high. They did not have safety belts or life lines (TR 8, 9, 10). He saw no safety belts or life lines in the area (TR 9). There were no guardrails between the scaffold and the building (TR 9). Mr. Gonzalez testified on behalf of the respondent that safety equipment was provided that safety belts and life lines were in the employee's truck. He stated that his instructions were that they were to be used (TR 25). He stated that when he ask the painters why they didn't have belts and life lines on they replied that they were changing the place of the scaffold at the time. He stated, however, that certain pictures which were introduced into evidence convinced him that his employees were not telling him the truth and that they had not been wearing the safety belts and life lines (TR 25, 26). He stated that after the inspection he met with them and reemphasized the importace of complying. He stated that it was his policy to make employees hook the lines on front of him but that if he would go off and come back in an hour he would find that they had been removed (TR 26, 27). He stated he did not have time to check the men at all places where they were working, there may [*17] be ten different jobs (TR 27). He stated that when he found instructions were disobeyed he would attempt to enforce his instructions by not assigning the men to the large job site for a period of time (TR 28). There was no evidence in the record as to the size of the scaffold or the working load that the scaffold was designed for.

EVALUATION OF THE EVIDENCE

As above stated, standard 29 CFR 1926.451(i)(8) provides:

On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall be protected by an approved safety life belt attached to a life line. The life line 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.

It will be noted that the section in question deals with suspension scaffolds designed for a working load of 500 pounds and suspension scaffolds with a working load of 750 pounds. In the opinion of this Judge, unless the scaffold in question was [*18] one designed for a working load of 500 pounds or one designed for a working load of 750 pounds, said section is not applicable. There is absolutely no evidence in the record that these scaffolds were designed for working loads of 500 pounds or 750 pounds nor is there any evidence in the record as to what working load the scaffold was designed for. The burden of proof was on the complainant. The complainant has failed to establish that the scaffold in the case at bar was the type of scaffold referred to in standard 29 CFR 1926.451(i)(8). In the absence of proof that the scaffold involved in this case is the type scaffold regulated by said section of the standard, the complainant has failed to sustain the citation.

It is further alleged that the respondent violated standard 29 CFR 1926.28(a). Said standard reads as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.

This Judge is of the opinion that said standard is entirely too vague to be a proper [*19] standard. It requires the "wearing of appropriate personal protective equipment." There could be as many opinions as there are persons interpreting the section as to what is appropriate protective equipment. There is no designation as to what is required and the standard is utterly lacking in specificity as to the type of equipment referred to. The term "exposure to hazardous conditions" is also extremely vague and suggests no criteria as to what would constitute hazardous conditions. There is no reference in this section to safety belts or life lines. Section 29 CFR 1926.451(i)(8) might be viewed as identifying one type of appropriate protective equipment under the circumstances. It has not been established in the case at bar, however, that the scaffold used in the case at bar is the type of scaffold referred to in said standard, therefore, standard 29 CFR 1926.451(i)(8) cannot be referred to in conjunction with standard 29 CFR 1926.28(a) insofar as the evidence in this case is concerned. In the case of Secretary v. G.E. Drywall, Inc., 1 OSHC 3217, it was held that the provisions of standard 29 CFR 1926.104(a) that life lines, safety belts and lanyards be used only [*20] for employees' safeguarding is too vague and indefinite to provide adequate notice to the employer and must be cited in conjunction with a more specific standard to be enforceable. The Review Commission held in the case of Secretary v. Sante Fe Trail Transport Company, 1 OSHC 1457, that the requirement of a standard that an employer employ persons trained in first aid in the absence of a hospital, infirmary or clinic in "near proximity" to the work place is unenforceably vague. Commissioner Van Namee stated in said opinion

We have indicated that a standard written in broad terms will not be declared unenforceably vague so long as employers of common intelligence are apprised of the conduct required of them and need not guess as to its meaning. Georgia Pacific Corporation, 1 OSHC 1282. Such terms may acquire meaning when read in the light of other regulations . . . but standards which are unlimited in scope and application and which can be applied according to the whim of an area director must fall. Such standards are not adequately measured by common understanding and practice and therefore did not convey a sufficiently definite warning of the prescribed practice.

Chairman [*21] Moran, in a concurring opinion stated:

The enforcement of vague standards like the one at issue in this case results in denial of respondent's right of due process of law. This constitutional requirement affords the parties against whom regulations are enforced the right to have fair warning of the conduct which is prohibited or required whenever the violation of such regulations are subject to civil or criminal sanctions. It also requires that a party be free from arbitrary application of the law which can vary with each individual enforcement official.

It therefore would appear that the complaint cannot be sustained for the reasons above stated. Other issues in the case are not reached.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business in Miami, Florida, where it is engaged in painting contracting. Respondent is and at all times relevant hereto has been an employer engaged in a business affecting commerce within the meaning of the Act.

2. On or about August 2, 1973, respondent was engaged in painting at a job site at the Holiday Inn, Miami Springs, Florida.

3. On or about August 2, 1973, two employees were engaged in painting [*22] on a scaffold nine feet high.

4. There is no evidence in the record as to the dimensions of said scaffold or as to the working load for which said scaffold was designed.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce within the jurisdiction of the Occupational Safety and Health Act.

2. There being no evidence in the record that the suspension scaffold used by the respondent in this case was designed for a working load of 500 pounds or 750 pounds, it has not been established that standard 29 CFR 1926.451(i)(8) is applicable and a violation of said standard has not been established.

3. Standard 29 CFR 1926.28(a) is, standing alone, too vague to be enforceable.

ORDER

It is therefore Ordered that:

It has not been established that respondent has violated section 5(a)(2) of the Act or standards 29 CFR 1926.451(i)(8) and 29 CFR 1926.28(a).

The citation and complaint in this case be and hereby are dismissed.

Dated this 29 day of APR, 1974.

JOHN S. PATTON, Judge, OSHRC