MARYLAND SHIPBUILDING AND DRYDOCK COMPANY

OSHRC Docket No. 4503

Occupational Safety and Health Review Commission

October 9, 1975

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: BARNAKO

OPINION:

  BARNAKO, CHAIRMAN: The issues presented in this case are whether Judge Ben D. Worcester erred in (1) vacating a citation for violation of 29 C.F.R. 1910.66(b)(5)(iii) and (2) affirming a citation for violation of 29 C.F.R. 1910.28(e)(1) and (2).   For the reasons which follow, we vacate both citations.

The facts surrounding the alleged violations arise out of a fatal accident at a shipyard owned by Respondent (Maryland Shipbuilding).   Work had been started to repaint a sign on the machine shop building at the shipyard. The sign was about fifty feet above the ground, and the work was to be done from a scaffold. The scaffold was erected by Carl True, a highly experienced and skilled employee, and the best qualified employee at the shipyard in scaffold erection.   The scaffold platform was supported by two wooden beams lying on the flat roof of the building, and extending about ten inches over the edge.   The beams were eighteen feet long and six by six inches in cross section.   Counterweights, consisting of bags of gravel and an aluminum beam, were placed on the inboard ends of the beams. The beams were not [*2]   in any way fastened to the roof.

The scaffold platform was a commercial unit twenty-eight feet long and two feet wide.   It was suspended by two steel cables tied to the beams. The vertical movement of the platform was controlled by two electric power lifts at each end of the platform.

Several days before the accident two experienced employees, Payne and Clounts, used the scaffold to paint out the old sign.   On the day of the accident, True and Payne used the scaffold for several hours to lay out the new sign.   They then left the scaffold, and returned after a short time.   Several minutes later, while the scaffod was being raised, a beam fell and both men fell to the ground.   True was killed, and Payne was seriously injured.

None of the three men who had worked on the scaffold had been protected from falling by a tied off safety belt. Maryland Shipbuilding did make safety belts available, and required their use   under these circumstances.   Maryland Shipbuilding, however, generally relied only on the experience of its employees to use the safety belts. On occasion, supervisors would remind employees that protective equipment was to be used in certain work.

Alleged   [*3]   Violation of 29 C.F.R. 1910.66(b)(5)(iii): n1

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n1 This standard states, in pertinent part:

The employer shall require employees working on Type T equipment to wear safety belts, which are attached by lifelines to either the working platform or the building structure.

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At the close of Complainant's evidence, Judge Worcester granted Maryland Shipbuilding's motion to vacate the citation for Complainant's failure to prove a prima facie case.   The Judge held that the failure of the employees using the scaffold to wear safety belts was an isolated incident in which experienced employees had disregarded the employer's instructions.

In considering whether a judge has erred in granting a motion to dismiss at the close of Complainant's case, we must view the evidence in the light most favorable to Complainant.   Sano v. Pennsylvania R.R., 282 F.2d 936 (3rd Cir., 1960).   Complainant's evidence indicates that Maryland Shipbuilding's policy regarding safety belts was only weakly enforced.   This is perhaps best shown by the fact [*4]   that three experienced employees who worked on the scaffold for significant lengths of time failed to use the belts that were available.   Additionally, it appears that employees were not always informed of the exact circumstances under which they were required to use safety belts, but that it was generally left to their discretion as to when they would use such equipment.   Thus, as the record now stands, the judge clearly erred in finding that the failure to use safety belts was an isolated occurrence.   Murphy Pacific Marine Salvage Co., 15 OSAHRC 1 (1975).

Maryland Shipbuilding, however, also claims that the type of scaffold used was not a Type T powered platform to which the cited standard applies, and that the citation should be vacated on this basis.   We agree.

The standards in 29 C.F.R. Part 1910 contain two sections regulating platforms. Section 1910.28 is entitled "Safety Requirements   for Scaffolding." The term "scaffold" is defined as meaning "any temporary elevated platform and its supporting structure used for supporting workmen or materials or both." n2 In his citation for violation of 29 C.F.R. 1910.28(e)(1) and (2), discussed infra, Complainant alleges [*5]   that the scaffold at issue falls within Section 1910.28.

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n2 29 C.F.R. 1910.21(f)(27).

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On the other hand, 29 C.F.R. 1910.66 applies to specialized equipment, designated Type F and Type T powered platforms. n3 As stated at 29 C.F.R. 1910.66(b)(1)(i):

This section establishes safety requirements for the design construction, installation, operation, maintenance, inspection, and use of power-operated platforms for exterior building maintenance.   The requirements of this section do not apply to temporary equipment used for construction work; or to devices which are raised and lowered manually.

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n3 The basic difference between Type F and Type T is that Type F platforms are supported by four wire ropes, and Type T by two. 29 C.F.R. 1910.66(b)(5)(ii) and (iii).

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Section 1910.66 contains detailed provisions governing the construction of Type F and Type T equipment,   [*6]   and regulating the manner in which such equipment is to be interfaced with the building on which it is used. n4 These provisions, considered as a whole, make it plain that they are intended to apply to permanently installed platforms. This conclusion is enhanced by the fact that section 1910.66, is derived from American National Standard, ANSI A 120.1-1970 "Safety Requirements for Powered Platforms for Exterior Building Maintenance." n5 The source   standard contains additional provisions which indicate that it is intended to apply only to permanently installed equipment. n6

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n4 See, for example, 29 C.F.R. 1910.66(d)(1) - (roof cars); 1910.66(d)(2) - (construction of working platform); 1910.66(d)(4) - (two independent braking means); 1910.66(d)(7) - (emergency communications); 1910.66(e)(2) - (periodic inspections at least every 12 months); and 1910.66(e)(12) - (building face guiding members).   A description of the type of equipment to which this section applies may be found in Apex Building Cleaning Corp., 3 OSAHRC 265 (1973).

n5 29 C.F.R. 1910.69.

n6 For example, the ANSI standard contains the following requirements:

10.8 Permanently Installed Equipment. Powered platforms shall be permanently installed on a building or structure.

11.2.1 Contract Arrangements. The design of the building or structure face in conjunction with the design of the building contact member on the working platform (Sec. 13.8) shall provide continuous contact of the working platform with the building or structure in order to absorb wind forces and horizontal compondents of dead and live loads on the working platform. The face of the building shall be provided with T rails, indented mullions, or equivalent guides which will positively engage building contact members on the working platforms.

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The evidence of record is that the scaffold at issue was a temporary platform within the meaning of 29 C.F.R. 1910.21(f)(27) rather than a permanent platform within the meaning of 1910.66.   It is therefore governed by 29 C.F.R. 1910.28 rather than 1910.66. n7 Accordingly, Maryland Shipbuilding did not violate 29 C.F.R. 1910.66(b)(5)(iii), and the citation must be vacated.

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n7 Safety belts are required on some of the types of scaffolds regulated by 29 C.F.R. 1910.28.   They are not, however, required on outrigger scaffolds, which Complainant originally alleged the scaffold at issue to be, or on stone setters' adjustable multiple-point suspension scaffolds, which he now claims the scaffold was.

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Alleged Violation of 29 C.F.R. 1910.28(e)(1) and (2): n8

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n8 These standards state, in pertinent part:

(e) Outrigger scaffolds. (1) outrigger beams shall extend not more than 6 feet beyond the face of the building. . . .   The beams shall be secured in place against movement and shall be securely braced at the fulcrum point against tipping. (2) The inboard ends of outrigger beams shall be securely supported either by means of struts bearing against sills in contact with the overhead beams or ceiling, or by means of tension members secured to the floor joists underfoot, or by both if necessary.   The inboard ends of outrigger beams shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement.

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Maryland Shipbuilding defended this charge on the basis that the scaffold was not an outrigger scaffold to which the standards apply.   Although the Judge held that the standards were applicable,   Complainant now concedes that the scaffold was indeed not an outrigger scaffold. This concession accords with our decisions in Elmer Vath, Painting Contractor, 9 OSAHRC 833 (1974), and The Austin Co., Inc., 9 OSAHRC 681 (1974).

Complainant now, however, argues that the scaffold failed to conform to 29 C.F.R. 1910.28(h)(5), n9 a standard applicable to stone setters' adjustable multiple-point suspension scaffolds. He claims that a violation of this standard was tried by the implied consent of the parties, and asks us to amend the citation to conform to the proof and find Maryland Shipbuilding in violation of this standard.

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n9 This standard states:

Outriggers when used shall be set with their webs in a vertical position securely anchored to the building or structure and provided with stop bolts at each end.

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We decline to find that a violation of 29 C.F.R. 1910.28(h)(5) was tried by consent.   The possibility that the scaffold may have been a stone setters' adjustable multiple-point suspension scaffold was not mentioned prior to Complainant's brief on review.   Maryland Shipbuilding defended the allegation of violation of 29 C.F.R. 1910.28(e)(1) and (2) on the basis that its scaffold was not an outrigger scaffold. If it had been charged with a violation of 29 C.F.R. 1910.28(h)(5), it might have defended on the basis that the scaffold was not a stone setters' adjustable multiple-point suspension scaffold. n10 It has not, however, had an opportunity to present this defense or any others that might have been available and cannot be said to have tried the issue by consent.   Isaacson Structural Steel Company, 17 OSAHRC 496 (1975).

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n10 We express no opinion as to whether the scaffold was in fact a stone setters' adjustable multiple-point suspension scaffold. Since there was no opportunity to try the issue of whether the scaffold was of this type, there is no basis in the record for concluding that it either is or is not such a scaffold.

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Accordingly, the citations for violation of 29 C.F.R. 1910.28(e)(1) and (2), and 29 C.F.R. 1910.66(b)(5)(iii) are vacated. It is so ORDERED.  

DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I respectfully dissent from the vacation of these citations.

  I agree with the majority's statement that the platform at issue is governed by 29 CFR §   1910.28 rather than by section 1910.66.   Type T powered platforms are permanently installed equipment.   This is made plain by section 1910.66(b)(5)(iii) which incorporates the requirements of Part III of ANSI A120.1 -- 1970 American National Standard Safety Requirement for Powered Platforms for Exterior Building Maintenance.   Section 20 of that ANSI standard makes applicable section 10.8, which requires that Type T powered platforms be permanent installations. n11

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n11 Our construction of section 1910.66 renders part of section 1910.66(b)(1)(i) mere surplusage.   In pertinent part, that subsection states that "[t]he requirements of this section do not apply to temporary equipment used for construction work. . . ." (Emphasis added).   Because section 1910.66 has been construed to apply to permanent equipment only, the italicized words are meaningless.

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I disagree, however, with my colleagues' conclusion that the citation must be vacated on this ground. n12 That a citation cites an inapplicable standard is not sufficient ground to vacate that citation.   Park Constr. Co., No. 2044 (April 24, 1975).   It is well established that under Fed. R. Civ. P. 15(b), which is made applicable under Commission Rule 2(b), we may amend the pleadings to conform to the evidence so long as the underlying facts were tried by the parties, and no prejudice results from the amendment.   Copelan Plumbing Co., No. 867 (June 17, 1974).   Moreover, section 10(b) of the Act makes the Administrative Procedure Act (5 U.S.C. §   551 et seq.), applicable to our   proceedings.   Under section 5(b)(2) of the APA, non-prejudicial shifts in legal theory are permissible so long as the respondent was apprised of the underlying facts on which the case rests.   N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 490 F.2d 1105, 1111-1112 (2d Cir. 1973). Inasmuch as the majority explicitly states that section 1910.28 is the applicable standard, and then does not consider [*12]   whether that section will support the citation, it errs.   S.E.C. v. Rapp, 304 F. 2d 786, 790 (2d Cir. 1972). We have an affirmative duty to consider this question.   American Boilers Mfrs. Ass'n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966). Underwriters Salvage Co. v. Davis & Shaw Furniture Co., 198 F.2d 450, 453 (10th Cir. 1952). Cf.   Michigan Consolidated Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960). Under the majority holding the employer has avoided an order to abate hazardous work practices on the basis of what amounts to a game of naming the scaffold n13 The use of a game theory derogates from the Commission's proper role of adequately protecting the public interest as it is stated in the statutory purpose.   See Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974).

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n12 Parenthetically, I also disagree with the majority's reading of Fed. R. Civ. P. 41(b).   Whether the Secretary has made out a prima facie case is not relevant when ruling on a Rule 41(b) motion.   Woods v. North American Rockwell Corp., 480 F.2d 644 (10th Cir. 1973); Ellis v. Carter, 328 F.2d 573 (9th Cir. 1964). See generally, 9 Wright & Miller, Federal Practice and Procedure: Civil §   2371 at 224-227 (1971); 5 Moore, Federal Practice, para. 41.13 at 1155-1159 & n.13 (2d ed. 1974); United States v. United States Gupsum Co., 67 F. Supp. 397, 417-421 (D.D.C. 1946), rev'd on other grounds, 333 U.S. 364, 388, reh. denied 333 U.S. 869 (1948) (excellent discussion).   The question is instead whether the evidence and the inferences drawn therefrom preponderate in the Secretary's favor on every necessary element of his case.   Bragen v. Hudson News Co., 321 F.2d 864 (3d Cir. 1963) (collecting cases).

n13 Reliance on Isaacson Structural Steel Co., No. 1731 (April 30, 1975) is misplaced.   There, unlike here, the Secretary attempted to inject a legal theory which he had first eschewed.   See Godwin Bevers Co., Inc., No. 1373 (January 7, 1975).

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Rather than vacate a citation because a scaffold has been mislabeled, I would amend the pleadings in conformity with the evidence, to substitute the correct scaffold type.   Clearly, the character of this scaffold has been hotly litigated by the parties, and there is no suggestion as to how respondent could be prejudiced by the amendment.   See Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-48 (5th Cir. 1973). And, of course, the safety belt issue was vigorously tried.

In resolving the safety belt question, we must first determine what kind of scaffold respondent used because the use of safety belts is required on some but not all scaffolds regulated by section 1910.28.   They are not, however, required on outrigger scaffolds, which the Secretary originally alleged the instant scaffold to be.   I   agree that the instant scaffold is not an outrigger scaffold. n14 Cf.   Elmer Vath, Painting Contractor, No. 773 (July 2, 1974) (Cleary, Commissioner, concurring in part and dissenting in part); The Austin Co., Inc., No. 899 (July 1, 1974) (Cleary, Commissioner, concurring in part and dissenting [*14]   in part).   The present scaffold (equipped as it was with stirrups) is, however, a two-point suspension scaffold (swinging scaffold) as defined by 29 CFR §   1910.21(f)(34):

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 machine.

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n14 I would also find that this scaffold is not a stone setters' adjustable multiple point suspension scaffold. Section 1910.21(f)(30) defines that type as being suspended at four points.   The instant scaffold was suspended at only two points.

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Section 1910.28(g)(9) requires that each workman on two-point suspension scaffolds "be protected by a safety lifebelt attached to a lifeline." The underlying facts (i.e., whether the workmen were required to use their safety belts) remain identical and the two standards are functionally equivalent in this respect.   By the amendment, respondent will not be deprived of any [*15]   defense.   See respondent's pre-hearing Statement of Issues.   Indeed, respondent's only defenses to the safety belt allegations were the "isolated incident" defense, and a denial of the fact of non-compliance.   Clearly then, with respect to the 29 CFR §   1910.28(g)(9) (safety belt) theory, a Rule 15(b) amendment should be made, and non-compliance with 29 CFR §   1910.28(g)(9) has been shown.   Nevertheless, because Judge Worcester granted the respondent's Rule 41(b) motion at the close of the Secretary's case-in-chief, it would be necessary to remand so   that the respondent can present evidence supporting its defenses to the safety belt allegations. n15

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n15 We should also express our dissatisfaction with the handling of this motion.   The better and preferred practice, except in unusually short, clear, and uncomplicated cases (which this is not) would be to reserve a ruling and carry the Rule 41(b) motion with the case -- or simply deny it, because the effect will be the same -- and then enter a final judgment at the close of all the evidence.   Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784, 793 n.19 (5th Cir. 1975). If the Commission had reversed Judge Worcester's decision here (as it most certainly should), a remand would be necessary so that the respondent could present its evidence.   The comments of Chief Judge Brown of the Fifth Circuit on this state of affairs is instructive: From an administrative standpoint, this process of disposition under F.R.Civ.P. 41(b) is patently unsatisfactory.   There has been a partial trial, followed by an appeal and reversal.   There must now be a second trial, or at least another partial trial, and still more appellate consideration may be sought in the future.   In this short, uncomplicated case it would have been a simple matter indeed for the District Court to carry the defendants Rule 41(b) motion with the case, let the defendant put on his evidence, and enter final judgment at the close of the evidence.   Not much time would have been lost, and if one or both of the parties had sought appellate review, the entire case would have come before this court at one time rather than in piecemeal fashion.

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Similarly, respondent should be found in non-compliance with 29 CFR §   1910.28(a)(2) for its failure to secure soundly the anchorage for its scaffold. That section reads as follows:

§   1910.28 Safety requirements for scaffolding.

(a) General requirements for all scaffolds.

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

The essential issue here concerns the adequacy of the scaffold's anchorage.   Respondent vigorously litigated this issue, and received sufficient notice as required by section 5(a)(3) of the APA. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., supra. White v. Rimrock Tidelands, Inc., 414 F. 2d 1336, 1340 (5th Cir. 1969).

The citation alleged that the two beams were not secured in place against movement, and were not securely braced at the   in place against movement, and were not securely braced at the fulcrum point to prevent tipping.   [*17]   In view of the singular importance of these beams to the safety of the workers on the scaffold, and in view of the majority's finding that section 1910.28 (and therefore its general requirements subsection) applies it would be inconsistent with the purposes of the Act not to apply 29 CFR §   1910.28(a)(2) where, as here, the issue was actually tried.   The evidence clearly establishes that neither the fulcrum or the inboard ends of these beams were securely and soundly anchored, as indicated by the incident which gave rise to this investigation.   The Judge correctly found that the means that were used were either inadequate or carelessly arranged, rendering the otherwise adequate counterweights totally useless, and were therefore unsound within the meaning of 29 CFR §   1910.28(a)(2).   For the reasons n16 cited by the Judge, I would therefore find that the Secretary proved a serious violation of section 5(a)(2) of the Act.

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n16 The Judge's partial reliance on the doctrine of res ipsa loquitur should be qualified.   Clearly, the mere occurrence of an engineering failure, without more, is insufficient evidence on which to find that a violation of the Act has occurred.   Cf.   Manuel Maes Constr. Co., Inc., No. 1363 (April 30, 1973), aff'd, No. 73-1464, 10th Cir., March 28, 1974.   The occurrence of an engineering failure is only probative, but not necessarily sufficient, evidence from which an inference of unsoundness or inadequacy of equipment may be drawn.   See Texports Stevedore Co., Inc. v. Secretary of Labor, 484 F.2d 465, 467 (5th Cir. 1973); Atlas Roofing Co., Inc., No. 1130 (May 7, 1973) (Administrative Law Judge), aff'd No. 73-2249, 5th Cir., September 8, 1975 (slip op. at 7671).   Cf.   Brennan v. O.S.H.R.C. & Republic Creosoting Co., 501 F.2d 1196, 1202 n.9 (7th Cir. 1974). Insofar as the Judge drew a logical inference from the facts, he did not err.

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[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to a notice of contest filed by the respondent, Maryland Shipbuilding and Drydock Company (hereinafter Maryland) under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter   called the Act.   On August 24, 1973, a citation was issued alleging that the respondent had violated section 5(a)(2) of the Act on August 9, 1973.   After issues were joined the matter came on to be heard at Baltimore, Maryland, on April 30, 1974.

On August 9, 1973, two of Maryland's employees, a sign painter and a helper, were working on a scaffold about 50 feet above the ground.   That afternoon just after raising themselves to the working level after a coffee break, the cable on the left as the observer would face the building became disengaged and the scaffold fell throwing both men to the ground.   They were not wearing safety belts although both had been issued belts by their employer.   The painter was killed and the helper   [*19]   was so severely injured that he was physically unable to attend the hearings eight months later.

Upon being notified of the accident the Secretary's compliance officer was directed to make an inspection of the worksite.   This resulted in the issuance of two citations for serious violation.   A penalty of $600.00 each was proposed.

In citation no. 1 there was an allegation of violation of 29 CFR 1910.28(e)(1) and (2).   This standard specifies the requirements for installing an outrigger scaffold as follows:

(e) Outrigger scaffolds. (1) Outrigger beams shall extend not more than 6 feet beyond the face of the building.   The inboard end of outrigger beams, measured from the fulcrum point to the extreme point of support, shall be not less than one and one-half times the outboard end in length.   The beams shall rest on edge, the sides shall be plumb, and the edges shall be horizontal. The fulcrum point of the beam shall rest on a secure bearing at least 6 inches in each horizontal dimension.   The beam shall be secured in place against movement and shall be securely braced at the fulcrum point against tipping.

(2) The inboard ends of outrigger beams shall be securely supported either [*20]   by means of struts bearing against sills in contact with the overhead beams or ceiling, or by means of tension members secured to the floor joists underfoot, or by both if necessary.   The inboard ends of outrigger beams shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement.

The alleged violation was described as follows:

The two beams of an outrigger scaffold were not secured in place against movement and were not securely braced at the fulcrum point to prevent tipping.

  The inboard ends of the outrigger beams were not secured against tipping and the entire supporting structure was not securely braced in both directions to prevent any horizontal movement.

Citation no. 2 alleged that there had been a violation of 29 CFR 1910.66(b)(5)(iii) because:

The employer did not require two employees working on a T type powered platform to wear safety belts which were attached by lifelines to the working platform or the building structure.

Maryland, as its name implies, is a corporation which was at all times relevant to this proceeding involved in shipbuilding and ship repair at its [*21]   shipyard in the port of Baltimore, Maryland.   Its normal work force averaged 1700 persons.   Because this work involved lettering on ships, they have full-time sign painters. Carl True was a highly skilled sign painter with 20 to 25 years of experience working at high levels such as on bridges, water towers and on ships. He had a reputation, wherever he was known in the industry, as being extraordinarily skillful at erecting staging for work aloft.

Maryland's shipyard covers a large area on the water front.   Its machine shop is approximately 1000 feet from the nearest ship dock.   On Friday, August 3, 1973, Carl True, the painter, was ordered by his supervisor, Holthouse, to erect staging on the wall on the south side of the machine shop so that an existing sign could be painted out and a new sign painted on in its place.   True completed this work on Friday afternoon.   Holthouse left Friday for his vacation.   On Monday, August 6, Holthouse's replacement, Boram, was told about the new sign which was to be put on the machine shop. He assigned two painter helpers, Herman Payne and William Clounts, to the job since the painting out process had to be done first and this did not require [*22]   a skilled painter like True.   When Boram went out to look at the machine shop wall he noticed that the staging was already up so he asked who had erected it.   True, who was present, said that he had.   According to Boram's testimony, he had so much confidence in True as a rigger of staging that he did not bother to go onto the roof himself to make sure that the scaffold was secure.   True told him that they had tested it thoroughly.   True was not a supervisor. He had declined an opportunity to become a foreman before this.   He preferred to be just a painter. Boram nevertheless accepted his   word that the scaffold was adequately secure and safe to work from.

Clounts and Payne completed the preliminary work Monday afternoon, but because True was working on another project on board a ship on Tuesday and Wednesday he was not available to start painting a sign on the machine shop until Thursday, August 9.   He and Payne began that morning.   Neither Boram nor anyone else in a supervisory capacity climbed to the roof of the machine shop between August 6 and 9 to inspect the rigging.

The scaffold, which they referred to as aluminum staging, was approximately 28 feet long and 2 feet [*23]   wide.   It was supported by two electrically operated power lifts secured to skids on the roof. There were two cables on each end of the scaffold. These were attached to 6 inch by 6 inch by 18 foot fir beams on each end of the scaffold, one on the east end and one on the west end.   These wooden timbers extended from a northerly direction to the south so that 10 inches projected over the edge of the roof. The scaffold cables were attached to the 10 inch projection.   There was no parapet at the edge.   At the opposite end of the beam there were counterweights. The east beam counterweight consisted of one or two sandbags and a standard size aluminum bar 10 feet long which weighed approximately 8,600 pounds.   On the west side, the beam had only sandbags.   Neither of the beams were fastened to a stationary object.   They were totally dependent on the counterweights as a means of keeping them in place.

Maryland presented two witnesses whose testimony, based upon their education and experience, is entitled to great weight.   On the basis of their testimony it is established that the total weight of the scaffold and the two men upon it could not have been more than 935 pounds.   Taking into [*24]   consideration the composition of the materials used for the staging and the manner in which they were used, it was shown that it would have taken a weight of at least 8,700 pounds (or more than nine times the total weight of the scaffold and the men and their equipment) to tip the beams and cause the scaffold to fall as long as the counterweights remained in place.

At about 10 a.m. True and Payne ran the scaffold up again after their coffee break.   For some reason which is unknown but   possibly because of the scaffold striking a border which protruded four inches from the wall or eye bolts projecting from the sign, the west beam was displaced.   It fell to the ground along with the cable dropping Payne and True to the ground also.   Both men, in accordance with company policy had been furnished with safety belts. It was a standing rule of the company that all employees were to wear safety belts when working at high levels.   True, at his own request, had been furnished with a special harness but neither he nor Payne was wearing his belt at the time of the accident.

At the conclusion of the case for the Secretary, Maryland moved, among other things, for a vacation of the citation [*25]   for violation of 29 CFR 1910.66(b)(5)(iii).   This motion was granted.   The Secretary has asked for reconsideration of this ruling.   The evidence shows that this was an isolated incident in which experienced employees disregarded a standing employer rule.   Contrary to the allegation in the citation, the respondent did require all of its employees working on scaffolds to wear safety belts but it would be impossible for any employer to assign a supervisor to each employee particularly in an area as large as a shipyard employing 1700 persons.   An employer is responsible for employee misconduct only when its safety program is inadequate.   Secretary of Labor v. Bechtel Power Corp.,   The vacation of the citation and proposed penalty for an alleged violation of 29 CFR 1910.66(b)(5)(iii) was proper.

Maryland in its post hearing brief argues:

1.   That this Commission lacks jurisdiction of the subject matter because the Secretary's area director did not sign the citation.

2.   The citation should be vacated because it was not issued with reasonable promptness.

3.   The General Industry Standards are inapplicable to Maryland because it is regulated   [*26]   by the Maritime Standards.

4.   Assuming arguendo that the General Industry Standards are applicable the Secretary has not met the burden of proof.

5.   Maryland discharged its responsibility under the Act when it entrusted a skilled and experienced employee with erection of a scaffold and that this man's negligence relieves Maryland of responsibility for the accident which is the basis of the citation.

  The contention that this Commission lacks subject matter jurisdiction because of alleged unlawful delegation of power in the case at bar cannot be sustained by either the law or the facts.   A presumption of regularity supports the official acts of public officials and, in the absence of clear evidence to the contrary, it is presumed that they have properly discharged their official duties. Consolidated Edison Co. v. NLRB, 59 S. Ct. 206, 215 (1938); United States v. Chemical Foundation, 47 S.Ct. 1, 6 (1926).

The argument that the citation is invalid because of an unlawful, and thus void, delegation of power cannot be sustained even by the authorities cited by Maryland.   The evidence in the case at bar reveals that the area director could not be physically present   [*27]   in the area office at all times.   If all pending citations in the area office were held in suspense until he returned to his headquarters the delay between citation and inspection which Maryland complains of would have been longer.   For that reason the area director found that it was necessary to delegate to the senior compliance officer authority to act in his absence.   This procedure was wholly consistent with the provisions of section 8(g)(2) of the Act.   It would be impractical to publish rules for every administrative and ministerial function in a local office of the government in the Federal Register.   Where an administrative body finds it impossible to perform duties which are so manifold and voluminous that they could not be actually performed by the person holding the office and charged with the performance of its duties, it must delegate such duties.   Krug v. Lincoln National Life Insurance Company, 245 F.2d 848, 853 (5th Cir. 1957). The principles which will admit of delegation in any case may suffice to justify a redelegation or subdelegation.   Shreveport Engraving Co., Inc. v. United States, 143 F.2d 222, 228 (5th Cir. 1944). The Administrative Procedure Act   [*28]   does not require that all internal delegations of authority be published in order to be effective. Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970).

It is elemental that the issue of jurisdiction of the subject matter may be raised at any time in the proceeding, even sua sponte by the court after trial, but there is not even a scintilla of evidence of lack of jurisdiction here.

  Before any testimony was heard a timely motion putting in issue the Commission's jurisdiction of the subject matter because of an alleged unreasonable delay between inspection and citation was denied.   The same motion was denied again at the conclusion of the case for the Secretary.   Maryland asserts this issue again in its post hearing brief citing in support of its contention Secretary of Labor v. Chicago Bridge and Iron Company,   Maryland's argument is not supported by this decision.   At page 4 Commissioner Van Namee speaking for the majority said:

It is our judgment that section 9(c) is a statute of limitations.   It is written in terms usually employed for such purposes, and it was characterized as such by the House and Senate Conferees.   [*29]   H.R. Rep. No. 91-1765, 91st Cong., 2d Sess. 38 (1970).   Accordingly, its only function is to act as a bar of limitations to the issuance of a citation for an old or stale violation.

Section 9(a) on the other hand governs the issuance of citations for alleged violations which are not subject to the bar of section 9(c).   Such citations must be issued with 'reasonable promptness.' The term 'reasonable promptness' is imprecise when viewed in isolation.   On the other hand, it follows the phrase '[i]f, upon investigation, the Secretary or his authorized representative believes that an employer has violated . . . this Act,' and therefore the term does not have application to the decisional process of forming a belief that a violation has occurred.   When the decisional procress ends, only ministerial tasks remain to be performed, e.g., the tasks of typing, signing, and mailing the citation.   We conclude that the term 'reasonable promptness' has application to such tasks. . . .

The record shows that the decisional process was not completed until August 21, 1974.   It also shows that when Daley, the Regional Director, had determined that a citation should be issued he acted expeditiously.   [*30]   As soon as he learned, when talking to his designee, Hill, by telephone that the necessary documents had been prepared he ordered Hill to sign his name so that they could be served upon the respondent as soon as possible.   Maryland has conceded that it suffered no harm because of the elapse of time between inspection and citation.   It has also failed to show that there was unreasonable delay.   The evidence totally rebuts this assertion.

For its third ground for dismissal of this proceeding, Maryland contends that the only standards which it is required to comply with are the Maritime Standards and that, for that reason, charges   brought under the General Industry Standards are a nullity.   It is clear that Maryland must comply with the provisions of the Maritime Standards.   However, 29 CFR 1910.14 of the General Industry Standards adopted standards pertaining to safety and health of employees in shipbuilding in effect on April 28, 1971.   Both this standard and 29 CFR 1915.2, a maritime industry standard made shipbuilding and ship repair standards applicable to each employee engaged in shipbuilding or "related" employment.   The term "related" is defined in both standards   [*31]   as:

including, but not restricted to, inspection, testing and employment as a watchman. n1

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n1 29 CFR 1910.14(b)(2); 29 CFR 1915.2(j).

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The Act is remedial legislation, the kind which is to be liberally construed.   The Congressional purpose is clear.   It should not be frustrated by technical, strained construction of standards which are plainly intended to fulfull this purpose.   A watchman, as such, has no tasks which have anything to do with shipbuilding or ship repair, but an injury to a watchman due to a tripping hazard, for example, is within the purview of the Act.   It would make no difference whether the fall occurred on the dock or in front of the machine shop. The standard is broad.   It is made clear that coverage is not limited to the three occupations mentioned.   There can be no doubt that Maryland's sign painters were subject to the General Industry Standards while on scaffolds wherever they were assigned work in the shipyard. Unfortunately an error in the publication of the General Industry Standards in [*32]   October 1972 creates some confusion.

The standards now known as the Maritime Standards were formerly designated as Part 1501 et seq. of Title 29, Code of Federal Regulations.   On December 30, 1971, at 36 F.R. 25232, Part 1501 was redesignated as Part 1915 and Part 1502 as Part 1916 of Title 29.   It is clear that when Part 1910 was first published on May 29, 1971, at 36 F.R. 10466 references to Parts 1501 and 1502 were correct but when Part 1910 was republished on October 18, 1972, at 37 F.R. 22102 that the incoroporation of   the Maritime Standards by reference failed to redesignate them as Parts 1915 and 1916.

There is nothing in this legislative history which shows an intention to relieve shipbuilding and ship repairing companies from compliance with the General Industry Standards.   On the contrary, Sections 1910.13 and 1910.14 show that ship repairing and shipbuilding companies are expected to meet the requirements of both.   The argument of Maryland that it should be excused for its inadequate supervision of its employees because they were painting a building in the shipyard instead of a ship is repugnant to the purpose of the Act.

Because no inspection of the staging [*33]   on the roof was made after True rigged it, no one knows why the counterweights did not prevent the west beam from tipping. There was more than enough weight to hold the load.   Either the bags were defective and split letting the contents spill out or they were so carelessly arranged that there was not enough counterbalance to hold the load.   If that were not true, the scaffold would not have fallen.   One of the burdens an employer must bear is that of regular and persistent personal observation of the methods used by its employees in performing their work.   The most skilled employees are often the first to get careless and, if they are not carefully supervised, they are likely to unnecessarily risk their own lives.   In the case at bar, Holthouse must have been too busy getting squared away for his vacation to take time to climb up to the machine roof shop on August 3rd when the scaffold was hung.   Boram, when he arrived on the following Monday, never went to the trouble of going up to the roof although he had three full days to do it before the fatal accident occurred.   Misplaced confidence in a skilled employee may explain this pattern of conduct but it does not excuse it.   Supervisors [*34]   as experienced as Holthouse and Boram are presumed to know that the beams of an outrigger scaffold should be secured against movement.   Even True knew that.   They made the mistake of putting too much confidence in True.

The provisions of the Maritime Standards do not fit the factual situation which existed in the instant case.   29 CFR 1910.28(e) does.   The scaffold was rigged in connection with work being performed in a shipyard but under circumstances which might   exist when painting a sign on a building anywhere.   Clearly, the General Industry Standards are applicable.

Maryland's argument that the Secretary failed to sustain the burden of proof that there was a violation of Section 1910.28(e)(1) and (2) is not supported by the record.   The evidence reveals that a scaffold fell because its outrigger beams were not secured "in place against movement." n2 Theoretically the counterweights were more than enough to hold a load of less than a thousand pounds on the two beams but, inadequately secured, no counterweights would prevent them from tipping if they became dislodged which is what happened in the instant case.

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n2 29 CFR 1910.28(e)(1).

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Finally, Maryland, asserts that an employer can discharge his responsibility to his employees under the Act by designating any one performing a given task as an expert with unusual skills and thus excuse himself from responsibility for the consequences of any negligent, thoughtless, or careless act committed by the skilled workmen.   It is true that an employer is not an insurer of the safety of his employees, and that he is not required to have a supervisor for each one, but, in circumstances such as existed in the instant case, supervisors as experienced as Holthouse and Boram would be expected to make routine checks on the work of the type of employees like True.   He was an expert in his field but not reliable enough, even in his own estimation, to be entrusted with supervisory responsibility.

FINDINGS OF FACT

1.   The Maryland Shipbuilding and Drydock Company is a corporation chartered in the State of Maryland and engaged in the business of shipbuilding and ship repair with its principle office in Fairfield, Maryland, and has an average of 1700 [*36]   employees in the Baltimore area.

2.   On August 9, 1973, Carl True and Herman Payne, employees of the respondent, were working on a two-point scaffold suspended from two wooden beams on the south side of the machine   shop at the shipyard. They were about 50 feet above ground.   They were not wearing safety belts in violation of Maryland's safety rules.

3.   The wooden beams were held in place by means of sandbags and an 800 pound aluminum bar on the east side beam. The counterweights were not secured against movement so that when the beam on the west side became dislodged, the scaffold fell, throwing Payne and True to the ground.   Payne was severely injured.   True was killed.

4.   True was an experienced sign painter and was considered to be especially skilled at rigging scaffolds. He had rigged the scaffold, which later fell, several days before the accident.   He never had held any type of supervisory position.

5.   No representative of management with supervisory authority inspected the rigging at any time after it was erected and before it fell on August 9, 1973.

6.   The failure of Maryland's two employees to wear safety belts and to adequately secure the supporting [*37]   beams of a two-point scaffold are both part of the elements of inadequate employer supervision, and are not two separate and distinct employer acts.

7.   An employer with 1700 employees cannot be expected to supervise every movement of every employee every minute of every working day so that there would never be an incident where an employee worked without violation of the rule requiring a safety belt, but its supervision could have ascertained that the beams supporting the scaffold were not secured against movement by making one inspection.

8.   Under the doctrine of res ipsa loquitur when one of the beams supporting a two-point scaffold from a roof falls to the ground, even though counterweights many times heavier than the scaffold load were placed on the inboard end, it is established that the outrigger beam which fell was not secured against tipping.

CONCLUSIONS OF LAW

1.   The Maryland Shipbuilding and Drydock Company is and was at all relevant times an employer as that term is defined in the   Act engaged in commerce and subject to the jurisdiction of this Commission.

2.   The Maryland Shipbuilding and Drydock Company did not violate 29 CFR 1910.66(b)(5)(iii) on August [*38]   9, 1973.

3.   The Maryland Shipbuilding and Drydock Company violated 29 CFR 1910.28(e)(1) and (2) on August 9, 1973, by failing to secure outrigger beams on a two-point scaffold against movement.

4.   This standard is applicable to shipbuilding and ship repair companies.

5.   Ordinarily a proposed penalty of $600.00 for violation of 29 CFR 1910.28(e)(1) and (2), in view of the fact that, as a direct result of the violation, a human life was lost, would be inadequate.   In any case where there is a fatality or serious injuries, the maximum penalty of $1000 for a serious violation is appropriate unless there are extenuating circumstances such as those mentioned in 29 U.S.C. 666(i), based upon the size of the business, good faith and history.   The Secretary, through its compliance officer who carefully evaluated the respondent on the basis of these three factors, concluded that a $600.00 was appropriate.   The proposed penalty is reasonable.

ORDER

It is accordingly hereby ORDERED that

1.   Citation number 1 for violation of 29 CFR 1910.28(e)(1) and (2) and the proposed penalty thereon of $600.00 be affirmed.

2.   Citation number 2 for an alleged violation of 29 CFR 1910.66(b)(5)(iii)   [*39]   and the proposed penalty thereon of $600.00 be vacated.