KENNECOTT COPPER CORPORATION
OSHRC Docket No. 5958
Occupational Safety and Health Review Commission
July 8, 1976
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Henry C. Mahlman, Regional Solicitor, U.S. Department of Labor
James B. Lee, for the employer
William Hayda, President, Local Union # 4347, United Steelworker of America, for the employees
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A March 17, 1975, decision of Review Commission Judge John A. Carlson, in a case arising under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, n2 is affirmed except insofar as it holds that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety and health standards codified at 29 C.F.R. § 1910.28(a)(3) and (a)(12) and assesses a $350 penalty therefor.
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n1 84 Stat. 1590, 29 U.S.C. § 651 et seq., hereinafter the Act.
n2 Chairman Barnako does not agree to this attachment.
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Respondent contends that 29 C.F.R. § 1910.28(a)(3) is invalid because of improper promulgation. [*2] We agree. n3
The standard provides in pertinent part that:
"Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . ." (Emphasis added.)
It was promulgated as a national consensus standard under 29 U.S.C. § 655(a) which gave the Secretary of Labor authority to adopt interim standards for a period of two years from the effective date of the Act. These standards could be adopted by the Secretary without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, 5 U.S.C. § 553. n4 As a substitute for these safeguards, Congress carefully limited what could qualify as a national consensus standard by defining it in 29 U.S.C. § 652(9) as:
"any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity [*3] for diverse views to be considered . . . ."
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n3 Complainant's contention that the Commission lacks authority to review the validity of a standard is rejected. Atlantic & Gulf Stevedores, Inc. v. OSAHRC, No. 75-1584 (3d Cir., March 26, 1976).
n4 Staff of the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 146 (Comm. Print 1971).
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The source of section 1910.28(a)(3) is paragraph 3.3, American National Standards Institute (ANSI) standard A10.8-1969, n5 which provides that:
"Guardrails and toeboards should be installed on all open sides and ends of platforms more than ten feet above the ground or floor . . . ." (Emphasis added.)
The basis of respondent's contention is that the standard promulgated by the Secretary was not a national consensus standard because he substituted the word "shall" for the word "should."
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n5 29 C.F.R. § 1910.31.
[*4]
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The ANSI version of the standard was advisory. n6 The Secretary's modification made a significant substantive alteration in that standard by making it mandatory. As so changed, 29 C.F.R. § 1910.28(a)(3) does not qualify as a "national consensus standard" because (1) the standard the Secretary promulgated was different from that which was adopted or promulgated by a nationally recognized standards-producing organization, and (2) the Secretary's standard was not formulated in a manner which afforded an opportunity for diverse views to be considered. n7
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n6 Paragraph 1.4 of ANSI standard A10.8-1969 provides that:
"Mandatory rules of this standard are characterized by the word shall. If a rule is of an advisory nature it is indicated by the word should, or is stated as a recommendation."
n7 Thus, this Act does not permit the Secretary to make such a substantive alteration when promulgating a national consensus standard.
[*5]
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In exercising his power under section 655(a), the Secretary must strictly adhere to the statutory limitations which Congress placed upon him. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974). When an agency of the United States fails to comply with such limitations in promulgating regulations, the regulations so promulgated are void. Utah Power & Light Company v. United States, 243 U.S. 389, 410 (1917); Federal Maritime Commission v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964).
In order for there to be any validity to the standard at issue, the rulemaking procedure provided in 29 U.S.C. § 655(b) should have been utilized to promulgate the modified version of ANSI standard A10.8-1969 as an occupational safety and health standard. Since the procedure was not followed, 29 C.F.R. § 1910.28(a)(3) is invalid. See Secretary v. Brooks Scanlon, Inc., 10 OSAHRC 51 (1974); Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973). Accordingly, vacation of the citation is required.
The remaining [*6] charge in issue alleges that respondent failed to comply with the occupational safety and health standard codified at 29 C.F.R. § 1910.28(a)(12) "in that a ladder or equivalent safe access had not been provided" for an employee to gain safe access to a scaffold on which he was working. (Emphasis added.) That standard provides that:
"An access ladder or equivalent safe access shall be provided." (Emphasis added.)
The uncontroverted evidence of record establishes that ladders were "provided" on respondent's worksite. One of respondent's employees, Sherman Griffith, testified as follows:
"The Court: All right, I was unclear as to how access would be gained to that platform.
A: By a ladder."
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"The Court: You have to put a portable ladder up there --
A: Yes, sir.
The Court: -- and come up on a ladder?
A: Yes, sir."
He also testified that a red portable ladder was "in the area" on the day of the inspection. Although he was unsure "who the ladder belong[ed] to" he stated that "it is just in our area, and we have access to it."
Although the Judge concluded that "[p]ortable ladders were available for use by the lead burner crew," he affirmed the violation on the [*7] basis that the standard implies that the use of a ladder is required. We disagree.
Both the citation and complaint charge respondent with failing to provide a ladder. More importantly, the standard allegedly violated only requires that a ladder be provided. Under these circumstances, the citation cannot be affirmed. If the Secretary had intended to require the use of a ladder, he should have so stated in the standard. Furthermore, he can easily change the standard to reflect his intent "under the flexible regulations promulgating structure." Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 648-649 (5th Cir. 1976).
For the foregoing reasons, the Judge's decision is reversed, and the citations for violations of 29 C.F.R. § 1910.28(a)(3) and (a)(12) and the $350 penalty assessed therefor are vacated.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
I respectfully dissent from the majority opinion. I would affirm the decision of Judge Carlson for the reasons stated therein.
In addition I make the following comments concerning the scaffold citation.
This is a smelter plant, a large complex consisting [*8] of several separate buildings and facilities. The incident which gave rise to the citation herein occurred in the number 5 acid plant building at number 11 treater. That building contains twelve "mist treater units", large cylindrical vessels which extend vertically through several floor levels and perform a part of the process whereby fumes from the smelting of ore are converted into commercially useful sulphuric acid. Much of the construction of the mist treaters involves lead or lead coating. The units, the piping used in connection therewith, and the flues leading away from the unit require frequent attention from "lead burners", who routinely make minor repairs to the facilities and, during periods when the units are shut down, perform major repairs. Leaks, which occur where the top and vertical sides of the treater meet, are patched by the lead burners during the down period. This type of repair work as well as other repairs necessitate the use of scaffolds. Periods of six to eight months pass between scaffold uses because "down periods" occur at such intervals.
The scaffold in question that was used for repair work consisted of a 2 X 12 inch wooden plank, 6 feet long, [*9] that was supported at either end by a triangular iron bracket that was hooked over one of the ribs surrounding the treater. The plank had no guardrails. The absence of guardrails was expressly alleged in the citation for a failure to comply with 29 CFR 1910.28(a)(3).
In holding that section 1910.28(a)(3) was invalidly adopted the majority points only to the underlying ANSI standard A10.8-1969, and concludes that because that consensus standard is directory, section 1910.28(a)(3) cannot be mandatory.
The majority overlooks the fact that under section 6(a) of the Act the Secretary of Labor is expressly empowered to resolve conflicts among the standards described in that section so as to assure the greatest protection for affected employees. As read by the majority section 1910.28(a)(3) conflicts with 29 CFR 1926.451(a)(4), n8 an "established Federal standard" under the Construction Safety Act. Section 1926.451(a)(3), which applies to construction, alteration, and repair work requires scaffolds of the specified height to have guardrails. I would presume regularity in the Secretary's rulemaking, and conclude that he resolved the conflict by making section 1910.28(a)(3) mandatory. [*10] Moreover, since repair work is involved and the underlying facts have been alleged, I would in any event amend the complaint to specify a violation of section 1926.450(a)(3) since it is plain that respondent would not be prejudiced. N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861-2 (2d Cir. 1966); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert denied, 347 U.S. 953 (1954).
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n8 Section 1926.451(a)(4) was initially published as section 1518.451(a)(4), 36 Fed.Reg. 7373 (April 17, 1971). In its present form the provision reads as follows:
(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
37 Fed.Reg, 25,713 (Dec. 2, 1972).
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APPENDIX A
DECISION AND ORDER
Roger L. Rutter, for the complainant
James B. Lee, for the respondent
William Hayda, employee representative
STATEMENT OF THE CASE
Carlson, Judge, OSAHRC
This is a proceeding pursuant to 29 U.S.C. 659(c) for an adjudication under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) of a contest of an alleged violation of § 654(a)(2).
Respondent contests the citation issued by complainant under authority vested in complainant by § 658 of the Act. The citation, issued December 12, 1973, alleges that respondent on November 5, 1973 was in serious violation of a standard promulgated by the Secretary pursuant to § 655 of the Act. The description of the alleged violation, as set forth in the citation is as follows:
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Standard, regulation |
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of section of the Act |
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allegedly violated |
Description of alleged violation |
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29 CFR 1910.28(a)(1) |
On November 5, 1973, an employee working on |
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29 CFR 1910.28(a)(3) |
the top surface of the lower tank of No. 11 |
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29 CFR 1910.28(a)(12) |
treater in No. 5 acid plant was engaged in |
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work which could not be done safely from the |
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ground or from permanent solid construction. |
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He had not been furnished a scaffold which was |
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erected in accordance with the promulgated |
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(Item number 1) |
standards. The scaffold he used, which was |
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approximately 11 feet 10 inches above the |
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floor, was not provided with guardrails in- |
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stalled on the open side and across the two |
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|
ends of the scaffold platform. In addition, the |
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employee gained access to the scaffold by unsafe |
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means in that a ladder or equivalent safe access |
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had not been provided. |
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(Abatement was called for immediately upon receipt |
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of the citation.) |
[*12]
Portions of the standard alleged to have been violated provide as follows:
§ 1910.28(a)(1) Safety requirements for scaffolding. (a) General requirements for all scaffolds. (1) Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction, except that ladders used for such work shall conform to § 1910.25 and § 1910.26.
§ 1910.28(a)(3) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. . . .
§ 1910.28(a)(12) An access ladder or equivalent safe access shall be provided.
In the notification of proposed penalty issued December 12, 1973 a penalty of $600 was sought by complainant in connection with the alleged violation. A notice of contest was duly filed by respondent and following the filing of further appropriate pleadings the matter came on for hearing at Salt Lake City, Utah on May 10, 1974. An appearance was made at the hearing by the president of Local No. 4347, United Steelworkers of America, who actively participated as employee representative.
Respondent filed extensive post-hearing [*13] submissions including the proposed findings of fact, conclusions of law, and briefs. Complainant and the employee representative waived such filings.
JURISDICTION
No jurisdictional question exists in this case. Respondent, by answer, admits it is an employer engaged in a business affecting commerce.
VALIDITY OF STANDARD - 29 CFR 1910.28(a)(3)
Following hearing upon the merits and submission of its original brief, respondent on November 20, 1974 filed a supplemental brief in which it urged for the first time that 29 CFR 1910.28(a)(3) is void by reason of improper promulgation. Specifically, respondent points out that the original American National Standards Institute standard (ANSI A10.8-1969) which was adopted by complainant Secretary as a "national consensus standard" under authority of 29 U.S.C. § 655(a) employs the word "should" which the Secretary changed to "shall". 29 U.S.C. § 655(a) provides:
"Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational [*14] safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees."
Subsection (b) of § 655 gives the Secretary authority to "promulgate, modify or revoke any occupational safety or health standard" by following a procedure of formal rule making with notice and provision for hearing and objection by interested parties. Respondent thus maintains that the Secretary exceeded his authority in purporting to adopt an existing national consensus standard while making mandatory a provision which was intended as advisory only. Respondent also points out that the general section 1.4 of the ANSI version provides:
"Mandatory rules of this standard are characterized by the word shall. If a rule is of an advisory nature it is indicated by the word should, or is stated as a recommendation."
Thus, argues respondent, complainant [*15] materially changed an ANSI standard in a way which could lawfully be done only through resort to the modification or amendment procedures prescribed in § 655(b) of the Act, with their attendant rights of participation by interested parties. In that case Judge Rubin held void a standard relating to overhead cranes owing to a similar substitution of terms. That decision became a final order of the Commission without review.
A majority of the Commission has held that certain matters relating to standards, including the question of unconstitutional vagueness, may be waived through lack of timely assertion. See Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718 (1974). The parallel question of timeliness has not been resolved with respect to attacks on the validity of a regulation based upon alleged improper promulgation. In the present case since no objection was lodged by complainant relative to the timeliness of raising the promulgation issue in a post-trial supplemental brief, any such objection is deemed waived [*16] and the matter will be considered.
The standard in question is entitled to the customary presumption of regularity and may not lightly be set aside. It has been in colorable effect since August 27, 1971 and has been enforced before this Commission in a number of decisions.
In that case Judge Burrough's order declaring invalid the standard published at 29 CFR 1910.93, relating to air contaminants, was overturned and the matter remanded for trial on the merits. There the Secretary, proceeding under § 655(a) of the Act, purported to adopt as an Occupational Safety and Health Standard an "established Federal standard" in existence under the Walsh-Healey Act. The language and organization of the standard as promulgated under the Occupational Safety and Health Act differed in many respects from that set forth in the original standard. The length and complexity of the two make direct comparison impractical here, but the language changes are extensive. (Compare FR 36 No. 105 version, published [*17] May 29, 1971, [amended prior to its effective date] with volume 36 number 157 version, published August 13, 1971). One very specific change for which no remote counterpart is found in the earlier version is the following language appearing in § 1910.93(e): "Whenever respirators are used their use shall comply with 1910.134 of this chapter." The Commission's remand order (Chairman Moran dissenting), concluding that the standard "was not changed in substance", surely indicates that the Secretary was invested with considerable latitude and discretion under his power to adopt national consensus or established federal standards. He was not bound to adopt those parts of existing standards which he chose to adopt word for word, comma by comma. Indeed, changes reaching considerably beyond mere editoria reorganization or clarification were clearly sanctioned.
The real question then, involves a determination of the limits of the Congressional grant of authority under § 655(a) of the Act. That section, as any other enactment, must be construed in the light of the underlying legislative intent. The Act was designed "to assure so far as possible every working man and woman . . . safe and [*18] healthful working conditions". n1 It is essentially remedial in purpose and consequently deserving of liberal interpretation to accomplish its ends. In determining whether the language modification made by the Secretary remained within the boundaries of delegation intended by the Congress under § 655(a), some attention must be given the character of the ANSI standards themselves. The ANSI requirements cannot be said to be "requirements" in the sense of having enjoyed widespread binding effect. They bound, in essence, only those who for one cause or another chose to be bound. Distinctions, then, between "mandatory" and "advisory" rules were hardly crucial in the context of the original standards; all, in a sense, were "advisory". It is also noteworthy that § 1.4 of the ANSI standard speaks of "advisory" standards as constituting "a recommendation". If guardrails were "recommended" on all open sides and ends of scaffold platforms the reason for such recommendation was surely enhancement of workers' safety -- not mere decoration or the economic benefit which might incidentally accrue to the lumber industry. The expression by those who formulated the standards that scaffolds over [*19] 10 feet high were safer with rails than those without, doubtless inspired the Secretary to choose the commonly mandatory "shall" when converting the hitherto private standard to a federal rule having the forced and effect law. Given this perspective, together with the inherently remedial aims of the Act, I am persuaded that the Secretary's action did not contravene the limits of the initial promulgating authority reasonably implied in § 655(a). Thus, though I acknowledge the question to be close, I consider the promulgation of 29 CFR 1926.28(a)(3) valid as written and proceed to a determination upon the merits as to the matter of the alleged railing violation as well as safe access. n2
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n1 29 U.S.C. § 651(b).
n2 The word "shall" appeared in the original ANSI version of 29 CFR 1926.28(a)(12).
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REVIEW OF THE EVIDENCE
It was stipulated at the outset that the contest involved the Utah Copper Division of Kennecott Copper Corporation, which division employed a total of approximately 7,300 persons at the end of 1973. [*20] Of this number approximately 1,200 were employed at the smelter plant complex where the alleged violation took place. The net assets of the parent company as disclosed on its 1973 balance sheet were slightly under two billion dollars (Tr. 9).
The evidence herein reveals that the smelter plant is a large complex with a number of separate buildings and facilities. The incident which gave rise to the citation herein occurred in the number 5 acid plant building. The building contains a number of "mist treater units", large cylindrical vessels which extend up through several floor levels. The twelve mist treaters located in acid plant number 5 perform a part of the process by which fumes from the smelting of ore are converted into commercially useful sulphuric acid. (Tr. 135) Much of the construction of the mist treaters involves lead or lead coating. The units, the piping used in connection therewith, and the flues leading away from the units require frequest attention from "lead burners", who routinely make minor repairs to the facilities and, during down periods, perform major repairs. There were but three lead burners in the entire acid plant complex - George Lehr, Nick Laboa, [*21] and Sherman Griffith. Lehr and Laboa had long tenure in the plant; Griffith was an apprentice with about 3 1/2 years experience (Tr. 41-42, 56).
The testimony of all 13 witnesses in this case centered about an "accident" or "incident" involving Mr. Laboa which took place on the morning of November 5, 1973, while he was working on a scaffold attached to mist treater unit number 11. n3 On the 5th and for several days previously, the plant had been inactivated to permit major repair and cleaning. The scaffold consisted of a 2 X 12 inch wooden plank, 6 feet long, which was supported at either end by a triangular iron bracket which was in turn hooked over one of the large ribs surrounding the treater. The plank had a cleat at either end to prevent its slipping out of the bracket, but had no guardrails or toeboards. It projected over a concrete walkway running east and west. The walkway was not level, but was arched toward the center to an elevation roughly 15 inches above the surrounding floor. Also, the floor in the building itself slanted, being higher at the north end (Tr. 169). The physical details are well depicted in a color transparency (compl's. ex. 1) and a plan view (resp's. [*22] ex. 6). The latter shows the layout of the south end of acid plant 5 which contains 4 of the treaters withing the building: numbers 9, 10, 11, and 12. The scaffold and all other material features were undisturbed between the time of Laboa's accident on the 5th and the inspection by complainant's compliance officer, Mr. Edward Beuhler, on the day following. (A red ladder shown in the photo, however, was placed against the scaffold after the accident.) The above facts were not in dispute.
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n3 For reasons known only to the parties the details of the "incident" in terms of the consequences to Mr. Laboa were scrupulously kept beyond the record.
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Compliance Officer Beuhler obtained a vertical measurement of 11 feet 10 inches from the top of the scaffold to the floor (Tr. 23). Mr. William J. Coombe, respondent's general foreman of the acid plants, obtained one of 9 foot 7 inches (Tr. 168), but he agreed that if taken at the southerly end of the plank it would have been "11 foot, 7, 8 or 9 inches".
No party questions that [*23] Laboa was on the scaffold on the morning of November 5, or suggests that he was wearing a safety belt which would perhaps have excused a lack of guardrails. The procession of witnesses was less than unanimous, however, about when the scaffold pieces may have been hung on the side of the treater, or when (or how many times) during the morning Laboa may have been on the scaffold. There was no evidence that it had been in place or used before November 5 at any time during the "down period". Parts of the treater between the ground floor and second floor levels could be reached by permanent, railed platforms affixed to the east side opposite where Laboa's scaffold was (Tr. 55). Access to a small part could also be gained by climbing a fixed ladder to a small "water seal platform" which was lower and to the right of the place where the temporary scaffold was hung. There was, however, no permanent means of access to the area served by the temporary device (Tr. 48). The top of the first level of the treater units were generally slick and oily (Tr. 50).
Sherman D. Griffith, the apprentice lead burner, was working on the morning of November 5 (a Monday), on nearby treater 10 (Tr. 53). [*24] This witness testified he saw Laboa standing on the scaffold at around 9:30 a.m., prior to the morning coffee break and spoke to him at that time (Tr. 69). Griffith had worked on top of similar plank and bracket scaffolds before November 5, to repair leaks on top of treaters (Tr. 48-49). He maintained that a number of such scaffolds were available in acid plant 5 (Tr. 54). He was aware of no other moveable scaffolds at the plant (Tr. 54).
Leaks requiring patches tend to occur at the place where the top and vertical sides of the treater met (Tr. 50). Griffith had never been told either to use or not to use the scaffolds by supervisors (Tr. 53). He understood Mr. Coombe to be his immediate supervisor, but also took orders from three shift foreman (Tr. 54-55). This witness indicated that the lead burners were not closely supervised and that, in essence, if they knew what their job entailed they "just did it"; whereas if they didn't, a supervisor gave explicit directions (Tr. 56). Griffith indicated that periods of six to eight months passed between scaffold uses because "down periods" occurred only at such intervals (Tr. 60). Lead burners, according to Griffith, had been issued [*25] safety belts before November 5, 1973, but received no specific instructions as to use (Tr. 67). Consequently, they were used principally on highly elevated flues (Tr. 59). Periodic safety meetings were held, but none he could recall dealt with scaffolding (Tr. 58). Portable ladders were available for use by the lead burner crew in the mist treater building (Tr. 68).
Three other nonsupervisory acid plant workers, all "unit cleaners", testified for complainant. These men had ordinary responsibilities differing considerably from those of the lead burners and happened to be working in conjunction with the latter to come extent during the down period.
One, Mr. Wells, had worked as a lead burner's helper on occasion (Tr. 89-90). This man saw Laboa standing on the plank scaffold toward the beginning of the shift, which began at 7:45 a.m., using air and water hoses to remove oil from the treater top (Tr. 89) and also saw him on the scaffold after coffee break and around 10:15 a.m. (Tr. 87-89). He did not see the scaffold being erected.
Mr. Eardley, another cleaner, testified that he had watched Laboa put up the plank scaffold shortly after the shift reported to work, and had watched [*26] him climb to it by first mounting a wooden beam, which had been wedged between treater's 11 and 10 (Tr. 74, 81; plan view -- resp's. ex. 6, Tr. 144). Eardly handed up to Laboa a bucket of soda ash for use in cutting the oil on the treater top (Tr. 74, 79). Laboa climbed down once while this witness watched (Tr. 74). After the accident Eardley mounted the scaffold at the direction of a foreman to check for broken glass (Tr. 77-78).
Still another cleaner, Mr. Quibell, who had been working on top of treater number 10 saw the scaffold and saw Laboa going up to it, but did not actually see him stand on its surface (Tr. 94). Quibell had seen the angle supports, and occassionally the boards, hanging on other treaters previously; and once, about a year before, had seen Laboa work on such a scaffold (Tr. 96-100). Quibell's ordinary duties (when the plant was working) took him through the mist treater building once every two hours to check on the treaters (Tr. 95-96). Wells had never before seen a scaffold similar to the one in use on November 5 (Tr. 90). Eardley, whose ordinary work put him in the acid plant several times a week, had seen such scaffolding in place before and had also [*27] seen it "laying around" in the building. He had never seen anyone on it (Tr. 79-80).
It is not disputed that the accident involving Laboa occurred sometime between 10 and 10:30 a.m. Compliance officer Buehler expressed the opinion that the unprotected scaffold was conducive to falls; and that a fall from its surface to the concrete floor would probably result in serious injury or death (Tr. 103).
Respondent's numerous witnesses tended to focus their testimony on matters relating to respondent's defense of lack of knowledge that scaffolding of the type used by Laboa was either available or in use. The safety director for the entire Utah Copper Division testified generally concerning the extensive safety efforts in effect at the smelter complex prior to Laboa's accident. He indicated with supporting documentation that management had given attention to scaffolding at the staff level in the form of a printed Supervisors Guide which included requirements for rails or scaffolds (Tr. 136; resp's ex. 3 at 5 & 29); that on October 13, 1973 a memorandum went out to all smelter supervisor's assigning "safe scaffolding" as a monthly safety topic (resp's. ex. 2); and that minutes of a general [*28] plant safety committee meeting (resp's. ex. 5) showed "ladder and scaffold safety" to have been a topic of the month. Ultimate responsibility for passing on safety information rested with the line supervisor (Tr. 119). Mr. William J. Coombe, general foreman of the acid plants, was a recipient of the information and was present at the meeting above referred to, according to company records. No records could be located (although minutes of actual safety meetings with plant workers were required to be made) that any scaffold safety meeting was in fact held with lead burners (Tr. 132-136).
Mr. Coombe, who testified at some length, revealed that he did not himself conduct any meetings with lead burners, but had delegated such duties to Mr. Edward Payne, acid plant operations foreman, along with the responsibility to ". . . see that they [employees] were provided proper conditions and material to work with" (Tr. 176). Coombe acknowledged, however, that he had not instructed Payne in the safety methods and information received at the staff meetings he himself had attended, supplying as a reason: "Ed isn't normally one of my foreman" (Tr. 176). Mr. Coombe could locate no records that [*29] any safety meeting relating to scaffolds had ever taken place with the lead burners (Tr. 186). Payne himself stated that he did not feel that he was responsible for holding any monthly safety meetings (Tr. 220). Apprentice lead burner Griffith had no recollection of any instructions relating to safe scaffolding (Tr. 55, 58).
Mr. Coombe testified that a dissimilar type of movable scaffolding, suspended by rods, was used by lead burners on the highly elevated flues which ran horizontally between buildings and that workers were instructed to use safety belts when working on these (Tr. 163, 167). He had no knowledge of the use of single plank scaffolds within the mist treater building until the Laboa accident (Tr. 174, 175). Four other employees of supervisory rank whose duties caused them to be in the plant from time to time had stated that they had never seen such scaffolding there (Tr. 150, 193, 199, 211). Foreman Payne had seen them as recently as 2 years before the accident (Tr. 216). None of the foreman or supervisory personnel was officed in the mist treater building, but the lead burners were headquartered there since their workshop and lunchroom was a part of the structure. [*30] When functioning, the plant was self-operating. Shift foreman were ordinarily through twice daily (Tr. 201); the general foreman each morning (Tr. 161); and a unit cleaner or helper was through every two hours (Tr. 96).
Mr. Coombe was in the building on the morning of November 5 prior to the accident, at about 8:30 a.m., according to his testimony; and at that time saw Laboa standing on the small steel platform near the water sea on treater 11. Contrary to Mr. Eardley's testimony, Coombe maintained that the plank scaffold was not up at that time, as he would have seen it (Tr. 165-166, 173-174). Plant foreman Payne was also in the building before the accident and saw the three lead burners in the lunch room, where he talked to them for a few moments sometime between 9:30 and 10:00 a.m. (Tr. 214, 221). He notice no scaffolding until after the accident, but felt that he would have seen it had it been in place at 10:00 a.m. (Tr. 218). When Coombe was in the treater building before the accident he noted one burner, George Lehr, standing on one of two long wooden planks which had been wedged between treater units 9 and 12 and ordered him to do the work from within the tank (Tr. 63, [*31] 165).
Mr. Coombe indicated generally that the lead burners need no close supervision; and that as a matter of fact "they work better when you don't". He added:
"They are pretty proud of their work -- and well they should be. They know what they're doing -- we're only guessing -- and so the only time we make any suggestions or have anything to offer is supplies -- meaning overalls, respirators, gloves and this type of thing." (Tr. 160)
Acid plant operation foreman Payne express much the same view. Stressing the skill of the lead burners, he indicated at one point ". . . we tell them what we need, and they, in turn, go ahead and do it. They know how -- we don't have to tell them nothing." (Tr. 215)
DISCUSSION
(a) As to Violation
Some of respondent's testimony suggests that the scaffold in question was less than 10 feet above the floor surface. The clear preponderance of the evidence is to the contrary. The witness who achieved the measurement of 9 ft. 7 in. agreed that one end of the plank was over 11 feet high. Further, the sense of the standard will not permit the apex of the arched walkway to be treated as the floor level. There is no assurance that a worker [*32] falling from the scaffold would have the good fortune to land on the highest point below.
There was also some disagreement as to the time the scaffold went up on the morning of November 5. I give full credence to the testimony of Mr. Payne and Mr. Coombe that neither saw the scaffold prior to the accident. I also have no question that Mr. Coombe chastisted Mr. Lehr for placing himself on an elevated plank (which was not the scaffold in question); but I likewise believe the detailed testimony of Laboa's fellow workers that the scaffold apparatus was installed early on the morning shift. Actually, the determination of that fact is of import only as to the matter of actual knowledge of respondent's supervisory personnel as to the unsafe scaffold. Had they seen it and said nothing we would need proceed no further on the question of employer knowledge.
The issue of employer knowledge is at the heart of this case. Respondent argues that it cannot be held responsible for the use of a nonconforming scaffold since it neither knew nor could have known of the condition. Section 666(j) of the Act provides that a serious violation does not occur in those circumstances where ". . . the [*33] employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." The burden of proof, as respondent correctly points out, is borne by complainant. I am satisfied, however, that such burden was met.
Respondent's lack of knowledge contention is flawed in multiple respects. Broadly, the evidence tends to show that the lead burners -- masters of a highly skilled and rather esoteric craft -- were expected to go their own way with a minimum of direction or control. Respondent's own witnesses stressed this lack of supervision. Indeed, having reviewed the evidence, it is difficult to quench the thought that the burners were viewed as a sort of clandestine group, plying their trade almost surreptitiously wherever lead work was needed in the various facilities of the acid plant. One can readily appreciate why management personnel would maintain a respectful distance as to technical matters dealing with the handling of lead; but that is not what we confront here. We are concerned merely with hazards to employees working at heights. Nothing in that fundamental matter of worker safety is peculiar to lead burners.
The evidence shows, certainly, [*34] that the plank and bracket type apparatus was not used frequently. But it also shows that leaks tend to occur near or on the tops of the first level of the mist treaters and that fixed or permanent platforms at certain places on the treaters provided safe access to but limited portions of those units. If it never occurred to supervisory personnel as to how the burners got to the otherwise inaccessible places, it should have occurred to them. The stark fact is that the elaborate and highly commendable safety program initiated at the company staff levels, at least insofar as it was addressed to safe scaffolding or ladder use, effectively dead-ended before it reached the lead burners. None of respondent's witnesses was ever able to say that safety instruction in these matters reached its intended benefactors.
The ultimate responsibility for employee safety under the Act is imposed upon the employer, not his employees. Secretary v. Hansen Brothers Logging, 1 OSAHRC 869 (1972); Secretary v. Cape and Vineyard Division, New Bedford Gas and Edison Light Company, 8 OSAHRC 701 (1974). It is surely fundamental to the exercise of such supervisory responsibility that the employer [*35] impart initial knowledge of safety requirements to employees. It was the responsibility of respondent to insure that necessary safety directives originating with the company safety officials reached down through the supervisory hierarchy to the workers. The record shows that this did not occur.
Respondent also contends that the use of the scaffold was an isolated incident or occurrence. The defense is unavailable under the facts. It requires a showing, inter alia, that a violation occurred because of an employee's unexpected departure from a well established and enforced work rule or safety directive. In the instant case the work rules were never effectively established.
In addition to employer knowledge, § 666(j) of the Act requires a showing that "a substantial probability that death or serious physical harm could result" from a violative condition. This element of seriousness has been established in the present case. The testimony of the compliance officer that such a result was probable went unchallenged. [*36] But as in Secretary v. Austin Company, Inc., 9 OSAHRC 681 (1974), where a 12 foot fall potential was held serious, and Secretary v. McDevitt and Street Co., 8 OSAHRC 8 (1974), where a distance of 12 to 14 feet was similarly regarded, the unforgiving concrete floor surface in the present case posed a threat of significant injury.
The parties gave little attention to the question of whether or not safe access was provided to the scaffold in question. Available evidence indicates that it was not. Ladders were available in the area but the burners had apparently never been instructed to use them. Since no instructions were ever given regarding the use of the scaffolding it would be unlikely indeed that the employees received instructions on how to mount them. The unrefuted testimony of a fellow worker indicates that Laboa used a temporary wooden beam and the ribs of the mist [*37] treater to clamber to his perch on the scaffold. Respondent's argument that the requirement of 29 CFR 1910.28(a)(12) is satisfied by "provision" of ladders is rejected. "Provision" implies "use".
(b) As to Penalty
Section 666(i) of the Act requires that four criteria be considered in the assessment of penalty. These are the gravity of the violation, the employer's size, good faith, and history of previous violation. The weight accorded the various criteria must differ according to the factual circumstances; ordinarily "gravity" will be given paramount consideration. Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972). In the present case we know only that a worker was exposed to hazards envisioned by the standards in that he was on an unprotected scaffold for a part of the morning of November 5, 1973, and climbed to it by unacceptable means. Only one employee was exposed to the violations specifically charged; the use of the offending scaffolding was not frequent or routine; and the height of the scaffold was clearly at the lower limits where the probable consequences of an accident [*38] would qualify as serious. The probability of a fall occurring was enhanced by the narrowness of the scaffold and the fact that the worker was using a water-hose. Although the violation meets the requirements for "seriousness", its gravity cannot be considered of a high level owing to the short duration of exposure, the single employee exposed, and the fact that the probability of serious injury would have been of a considerably higher order had the scaffold been at a greater height.
The Secretary concedes that no adverse prior history was involved here. With respect to good faith, the evidence demonstrates that respondent had an aggressive and comprehensive safety program which simply failed to be effective for the lead burners. Considering the overall safety program and respondent's high degree of cooperation, its good faith must be considered mitigating. Respondent's size, of course, weighs against it. Under the total circumstances, and based primarily upon consideration of a relatively low order of gravity, I conclude that a penalty of $350 is appropriate, rather than the $600 proposed.
FINDINGS OF FACT
Upon the entire record the following ultimate facts are found: [*39]
(1) Respondent is a large corporation with numerous employees and is engaged in a business which affects commerce.
(2) On November 5, 1973 one of respondent's employees was working on a narrow scaffold, the working surface of which was more than 10 ft. but slightly less than 12 ft. above a concrete floor.
(3) Such scaffold had no guardrails or toeboards on its open sides or ends, and the employee thereon wore no safety belt or line.
(4) The employee failed to use a ladder or other safe means to gain access to the scaffold.
(5) Had the employee fallen from the scaffold a substantial probability existed that serious injury or death would result.
(6) Through the exercise of reasonable diligence by its supervisory personnel respondent should have known of the presence and use of the above described scaffold and to the failure to use a ladder or other safe means of access thereto.
(7) The duration of exposure of the single employee was brief.
(8) Respondent's overall safety program was of high quality and respondent cooperated fully with complainant's enforcement personnel.
CONCLUSIONS OF LAW
(1) That at all times material hereto this Commission had full jurisdiction over [*40] this cause.
(2) That the Secretary's promulgation of 29 CFR 1910.28(a)(3) was not in violation of § 655(a) of the Act and that such standard is valid as written.
(3) That on November 5, 1973 respondent was in violation of 29 CFR 1910.28(a)(3) and 29 CFR 1910.28(a)(12), as alleged.
(4) That such violations were "serious" within the meaning of § 666(j) of the Act.
(5) That no separate violation of 29 CFR 1910.28(a)(1) was sustained for the reasons set forth in the body of this decision.
(6) That a penalty of $350 is appropriate for the violations proved.
ORDER
In accordance with the foregoing, it is hereby ORDERED that the citation is affirmed insofar as it alleges violations of 29 CFR 1910.28(a)(3) and 29 CFR 1910.28(a)(12); and that a total penalty of $350 is assessed in connection therewith.
John A. Carlson, Judge, OSAHRC
Dated: March 17, 1975
Denver, Colorado