Docket No. 666

KERMIT L. STEPTER d/b/a STEPTER BROTHERS LATHING

OSHRC Docket No. 666

Occupational Safety and Health Review Commission

September 12, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before the Commission for review of an April 2, 1973 decision of Judge Garl Watkins pursuant to 29 U.S.C. 661(i).

At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a) and whether or not the respondent was denied procedural due process by the failure of the Secretary's representative to afford an opportunity for walk-around as provided in 29 U.S.C. 657(e).

Having reviewed the record we find no prejudicial error in the Judge's decision and therefore affirm it for the reasons set out in Secretary v. Chicago Bridge and Iron Co., Secretary v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528 (1973). Chairman Moran would reverse for the reasons set forth in his dissenting opinions in the latter case and in Secretary v. Plastering, Incorporated, Secretary v. Advance Air Conditioning, Inc., Secretary v. Chicago Bridge and Iron Co.,

[The Judge's decision [*2] referred to herein follows]

WATKINS, JUDGE, OSAHRC: Respondent Kermit L. Stepter, a lathing subcontractor working on construction of an apartment building in Scottsdale, Arizona; received two Citations for Serious Violations on February 3, 1972, of wood scaffolding requirements of construction standards adopted under the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. The first Citation was issued at the worksite when the safety engineer of the United States Department of Labor was inspecting it, and his "expedited" Citation was posted on the offending scaffold.

The second Citation is dated March 7. It was on the wrong form and was superseded by Citation No. 2, "Amended Citation for Serious Violation," dated March 10, 1972. It alleges violation of seven scaffolding standards (reduced to six in the Secretary's Complaint) and seeks to have them combined to form one serious violation. The Notification of Proposed Penalty was also issued March 10, 1972 and requests a penalty of $500.00 for each of the two alleged serious violations.

The language of the Citations, corresponding allegations of the Complaint and applicable standards follow.

Expedited Citation [*3] for Serious Violation

Citation Number 1, Page 1 of 1 -- Date Issued: Feb. 3, 1972 -- Employer: Stepter Bros Lathers -- Street: 8055 East Thomas Road, Apt. Complex under construction -- City: Scottsdale -- State: Arizona -- Zip

An inspection of a workplace under your ownership, operation, or control located at 8055 E. Thomas Road, Scottsdale, Ariz. named "The Scottsdale" "Feb. 3, 1972 and described as follows 179 unit 2 & 3 story Apt. complex under construction has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects: Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Section 1926.451(a)(4) Formerly 1518.451(a)(4) as included by 29 CFR 1910.12 and as adopted by 29 CFR 1910.12 -- Employee working on scaffold approximately 24' in heighth without backrails or toeboards. -- Immediate 29 CFR 1926.451(b)(11) -- Scaffold planks not laid tight. All previous sections formerly 1518.451 (etc.) as adopted by 29 CFR 1910.12 -- The combined effect of the previous itemized conditions [*4] are deemed to constitute a substantial probability that death or serious physical harm could result and that the employer with the exercise of reasonable diligence knew or should have known of the presence of the violation.

COMPLAINT: VI

On February 3, 1972 respondent violated the standards set forth at 29 C.F.R. 1926.451 in that respondent permitted an employee to work atop a scaffold approximately 24 feet in height which scaffold:

A. did not have footing or anchorage which were sound, rigid and capable of carrying the maximum intended load without settling or displacement (.451(a)(2));

B. had accessories which were broken, damaged or weakened (.451(a)(8));

C. had planks or platforms which were not overlapped at least 12 inches, or secured from movement (.451(a)(12));

D. had ledgers which were not long enough to extend over two pole spaces (.451(b)(7));

F. had no full diagonal face bracing erected across the entire face of pole scaffolds in both directions (.451(b)(10);

G. had platform planks which were not tightly laid with spaces through which tools or material fragments could fall (.451(b)(11)).

VII

The violations alleged in the citations reflected [*5] in paragraphs V and VI above were violations within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from a condtion which existed, or from one or more practices, means, methods, operations, or processes which had been adopted or were in use in such place of employment. Respondent knew, or with the exercise of due diligence, could have known of the presence of the violation.

STANDARD:

29 CFR 1926.451(a)(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.

29 CFR 1926.451(a)(8):

Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced.

29 CFR 1926.451(a)(12):

All planking or platforms shall be overlapped (minimum 12 inches), or secured from movement.

29 CFR 1926.451(b)(7):

Ledgers shall be long enough to extend over two pole spaces. Ledgers shall not [*6] be spliced between the poles. Ledgers shall be reinforced by bearing blocks securely nailed to the side of the pole to form a support for the ledger.

29 CFR 1926.451(b)(10):

Full diagonal face bracing shall be erected across the entire face of pole scaffolds in both directions. The braces shall be spliced at the poles. The inner row of poles on medium and heavy duty scaffolds shall be braced in a similar manner.

29 CFR 1926.451(b)(11):

Platform planks shall be laid with their edges close together so the platform will be tight with no spaces through which tools or fragments of material can fall.

After Notice of Contest issues were joined by Complaint and Answer, the case was heard in Phoenix, Arizona on July 25, 1972. Although the Citation for Serious Violation No. 1 was termed "expedited," no steps were taken by the Secretary to obtain an order for an expedited hearing. There was full compliance with procedural rules for notice to named and unnamed parties and none appeared.

COMPLAINT: V

On February 3, 1972, respondent violated the standard set forth at 29 C.F.R. 1926.451(a)(4), in that respondent allowed an employee to work atop a scaffold approximately [*7] 24 feet in height, which scaffold was not equipped with with guardrails and toeboards.

STANDARD:

29 CFR 1926.451(a)(4):

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 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.

CITATION: Amended Citation for Serious Violation

Citation Number 2, Page 1 of 2 -- Dated Issued: March 10, 1972 -- Employer: Stepter Brothers Lathers -- Street: 3631 East Miami Avenue -- Address: City: Phoenix -- State: Arizona -- Zip:85040

An inspection of a workplace under your ownership, operation, or control located at 8055 East Thomas Road, Scottsdale, Arizona, on February 3, 1972 and described as follows: apartment complex under construction named "The Scottsdale" has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly [*8] violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR 1926.451(a)(2) -- Unsound scaffold footings. -- Before work is to be resumed.

29 CFR 1926.451(a)(8) -- Broken and damaged scaffold wood members being utilized.

29 CFR 1926.451(a)(12) -- Scaffold planks not overlapped 12 inches or secured from movement.

29 CFR 1926.451(b)(7) -- No ledgers under plank supports and not extending for two poles.

29 CFR 1926.451(b)(10) -- No full diagonal face bracing on wood pole scaffolding.

Counsel for Respondent claims a denial of due process. As we understand his position, it is that there was inspection without notice and citation and imposition of penalties without an opportunity to be heard. The contention can be answered by the fact that the citation consisted of allegations, and the penalties were "proposed." Due process was afforded by the hearing at which these objections were made.

The case was heard before the Commission decisions in Wright-Schuchart-Harbor Contractors, Docket No. 559 and Chicago Bridge & Iron, Docket No. 224. A good deal of attention was given by both Counsel in their briefs, as well as at the hearing, to [*9] the fact that there was neither an employee nor an employer representative with the inspecting officer.

The question is settled here by the two decisions cited. Perhaps two observations about this might be helpful.

First, when the OSHA safety engineer arrived at the worksite on February 3, 1972, only one employee of the Respondent, Purmon Green, was there. Since there was no one representing the employer, Green said he would be in contact with Stepter and would ask him to be there the next day. Respondent was in fact there early the next morning. All alleged violations were then discussed in detail.

Secondly, there was no inspection tour. There was no need to "walk around" anything. All the engineer had to do was stand and observe (he might have had to go part way around the building where some of the scaffold was located). The Secretary did not prove that Purmon Green was invited by him to stand and watch.

Kermit L. Stepter testified he is a lathing and plastering contractor. The balance of his testimony was about his work as lathing subcontractor for plastering contractors. He is licensed in California and Arizona.

At the time of the alleged violation, he [*10] had three jobs going in Arizona, a territory he had only recently entered -- and ten under way in California. He employed 35 men, 10 in Arizona. There were 3 on the Scottsdale job but not at the same time. The first two, including McAllister, the foreman, first did the "hanging" of the sheets -- putting them in the exact position but with few nails -- then Purmon Green arrived to do the "nailing" process where a power stapling machine is used.

Stepter had been in the business twelve years -- seven as a contractor. He had never before owned any scaffolding. It was always furnished by someone else, usually the plastering contractor, who in turn arranged for it to be erected -- and moved when necessary -- by a scaffolding contractor. Stepter had observed safe and unsafe conditions in scaffolding and had corrected the latter. He had never "set" any scaffolding or dismantled any. His employees knew no more about scaffolding than he did.

In talking to the plastering contractor about the Arizona work coming up, Respondent learned that there would be no scaffolding available. In October 1971, he bought the wood scaffolding used for the Scottsdale job in Los Angeles from [*11] Jackson A. Brooks, a scaffolding contractor. Respondent had never worked on scaffolding "set" by Brooks. He knew him to be reputable as a scaffolding contractor. He had seen scaffolding erected by Brooks and used by others. He knew Brooks was experienced in the business and licensed.

After two or three talks between the men, Respondent agreed to buy the knocked down wood scaffolding and a 1950 GMC truck from Brooks for $6,000. The asking price had been $8,000. He paid $4,000 down. The agreement between the parties was reduced to writing and included only the sale of the scaffolding. Respondent testified -- and there is no evidence to the contrary -- that Brooks also agreed to haul it to Arizona as well as to erect it and then, as was customary in jobs such as the one undertaken, to move it from time to time as the work of Respondent's men progressed. On February 3, Brooks was still in Arizona and still had work to do in moving the scaffolding during progress of the job. On Brooks second trip to Phoenix with a load of scaffolding, the truck developed mechanical trouble. Respondent hired Lester Washington to make two more trips to deliver the balance. For this [*12] he paid Washington $425.00.

The scaffolding was probably first erected within two or three days after January 19, 1972. There is no direct evidence about this. Respondent was not in Arizona between that time and February 4. He was attending to the jobs under way in California. He received periodic reports by telephone from McAllister. Scaffolding was never mentioned. The conversation was principally about how much of the job had been completed.

At the February 4 meeting at the worksite, Stepter first agreed to correct the deficiencies. He said differences arose between the plastering contractor and the general contractor. The nature of these was not disclosed but his final testimony was that because of the citations for safety violations he had to withdraw from the job. He said he had $9,000 invested in it and he had expected a profit of $10,000 on the contract.

Interestingly, in a transcript of 139 pages directed toward seven alleged violations of scaffolding standards, there is no evidence from which an inference can be drawn that anybody was ever on that scaffolding. The necessary proof of employee exposure to whatever hazards existed lies solely in the pre-trial stipulation [*13] of Counsel that Respondent's employee, Purmon Green, was on the scaffold and did some work there -- 24 feet above the ground -- on February 3.

A combination of this stipulation and testimony at the hearing establishes that Respondent violated all the standards alleged, but the proof is sketchy. The record does not show how long Green was on the scaffold, what he did there, what part of the scaffolding supported him or whether he was near any area on the scaffolding where there was in fact a violation. The "scaffolding" contemplated by the stipulation was 90 feet long; "set" in three lengths of 40, 30 and 20 feet. This is not the character of convincing evidence one would hope to find to prove violations of a serious nature.

The fact the employee "was working" on some part of the scaffold gives the stipulation no special status or distinction. A workman must be exposed -- or subject to exposure -- to a hazard in every case before a violation can be found.

Since it is established that there is evidence or stipulated facts to support all alleged violations, the questions for decision would seem to be: (1) how many violations were there; (2) were they (or was it) of a [*14] serious nature; (3) what, if any, penalty or penalties should be imposed.

A cursory review might lead to a decision to lump the first violation -- set out in the "expedited citation for serious violation" -- in with the other six. A more thoughful study, however, in the case of the guard rail deficiency, brings us to the conclusion that this was a separate serious violation.

This is the only allegation where the stipulation and evidence show the hazard -- its extent, amount, degree. Where there was no guard rail, a workman was more likely to fall 24 feet to the ground than where there was a guard rail. It is unlikely that such a fall would not result in serious injury.

The record still does not show that Green worked at a point adjacent to the missing railing. The testimony shows, however, that his job was to "nail" down all the sheets. This was one worksite for both him and his employer. He had to go to all points of it. Thus a clear inference may be drawn that in his job he would be required to use all the scaffolding. He was exposed to the part with the missing handrail.

Irrespective of the semantics in which one might be tempted to engage with the words "substantial" [*15] and "could result" in Section 17(k) of the Act, the established facts show "a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment." This in effect is a holding that, if complete proof of all facts as they existed on the day of the inspection would produce such a finding (if in every way consistent with the skeleton proof which actually was produced then the skeleton is sufficient to support the findings. Thus there is justification for placing this alleged violation in a separate citation and to hold that the hazard requirement for a serious violation has been met. The question as to whether Respondent had knowledge or notice of the condition will be discussed later.

There is no justification in this case for lumping several alleged violations together (seven in the Citation -- six in the Complaint) and then designating the combination as one serious violation. As was pointed out, there is no evidence from which it could be found that one workman -- or group -- could be subjected to the hazard [*16] of any more than one violation at any one time.

In addition, the proof, which again is a combination of the evidence in the record and a stipulation of facts by the parties, is "bare bones." Except for the guard rail, there is no way of determining how serious in fact the violations were.

For example, from the entire record it cannot be determined how "unsound" the scaffold footings were, how much of the wood members constituting the scaffolding was "broken and damaged" and to what extent, how many scaffold planks were "not overlapped twelve inches" or where they were located or their precise position, how much "cross bracing" was missing and its possible affect on the particular scaffolding or where it was located, the dimensions or a more accurate description of the scaffolding to determine the effect of the absence of "face bracing" and finally, how many of the scaffold planks had holes between them, how large the holes were, what tools could have fallen, and in how many places.

As in the case of Citation No. 1, each violation is proved -- but by skeletal evidence. On such evidence it is inconceivable that any one could be classed as serious. As a group they are [*17] no more serious.

Nor can the six be separated as items and six violations be found. There are two reasons for this.

First, we question our right to find that Respondent committed six violations where he has been charged with one. The amended Citation for Serious Violation does not charge six separate offenses -- rather it charges one offense because of the violation of six standards. It specifically so states.

This is analagous to the situation where a willful violation cannot be found when a serious violation is charged, or where a serious violation cannot be found when one other than serious has been alleged.

Secondly, such a result would not be fair to Respondent. This is one worksite, one "set," one scaffold, even though it may have been split into three pieces at the time of the inspection. Respondent discussed the findings of the OSHA safety engineer with him at the scene. If the conversation was as it should have been, Respondent was told he would be cited (or a recommendation would be made that he be cited) for two violations -- not seven. The fact we find the second violation has not been proved as serious does not change these basic facts.

As to the [*18] "Expedited" Citation, the next question is whether Respondent "did not, and could not with exercise of reasonable diligence, know the presence of the violation." Sec. 17(k) of the Act, supra.

Stepter had been in the lathing business twelve years -- seven as a contractor. He had never before provided scaffold for a job. It had always been furnished by the plastering contractor with whom he dealt. The latter usually obtained it through a scaffolding contractor.

Respondent's knowledge of scaffolding was confined to having worked on various kinds on many occasions and having supervised the work of other men on various kinds of scaffolding. He was anxious to expand his business in Arizona and was willing to buy the scaffolding from Jackson Brooks for $6,000 in order to get the job done. Brooks in turn was to transport the scaffold to Arizona to "set" it and to take care of moving it as the job progressed. Stepter was also willing to pay Lester Washington $425.00 to haul the last two loads to Arizona.

Respondent saw the scaffolding in a knocked down form in the yard of Brooks before he bought it. Obviously he could see only those timbers and boards which were on top of the [*19] pile and he made no attempt to examine below them. He said what he saw was in good condition. After the first load or two had been hauled to Arizona and dumped in the lot where it was to be kept until he was ready to use it, he again saw some of it. Again, the top boards and timbers were in good condition and he did not examine below them.

He knew Brooks was experienced as a scaffolding contractor and relied on his ability to take care of the job in a safe manner. Although the work on the apartment house in Scottsdale had progressed for a week to ten days and Respondent had two men on the job at first and then one man, he had not visited the scene until after the inspection leading to the citations here. He talked to McAllister, his foreman, daily. Scaffolding had not been mentioned. He had ten jobs under way in California and two others in Arizona.

Respondent had a right to place a great deal of reliance on Brooks who was experienced in scaffold work where Respondent was not. Brooks had a good reputation and Respondent had seen quite a number of his jobs which were done in a workmanlike and safe manner. It seems to us, however, that he was not warranted in relying [*20] on Brooks to the extent he did. "Reasonable diligence" would have required him to do something to determine on his own that the wood scaffolding material was in good shape or that it was "set" properly, or both.

He could have examined all the dismantled scafolding in California. He could have examined approximately half of it in Arizona when it was dismantled. He could have visited this job at least once while it was under way. He could have asked his foreman or his other employees about the condition of the scaffolding. He could have asked the plastering contractor or the general contractor. He did none of these. Under the circumstances, with the exercise of "reasonable diligence" he could have known something was wrong -- or at least could have been put on notice, so that we could have looked further to find a violation of the scaffolding standards.

Respondent had a safety program, possibly as good as he could put together in the type of business in which he was engaged.

Whether his estimate of the profit he lost is realistic may be subject to question. However, his testimony that he lost the job and the $9,000.00 he had already invested in it because of the [*21] citations is uncontradicted and accepted.

Taking into consideration all the factors prescribed by Section 17(j) of the Act, it would seem that a penalty for the serious violation in the amount of $250.00 is reasonable.

Considering the same factors, a penalty of $100.00 for the violations alleged in Amended Citation No. 2, and found to be non-serious in nature, should also be reasonable.

Based upon the entire record, the undersigned hereby makes the following:

FINDINGS OF FACT

Respondent, Kermit L. Stepter, doing business as an individual but under the firm name of Stepter Brothers Lathing, maintains a place of business at 3631 E. Miami Ave., Phoenix, Arizona and another at 2427 Delta, Long Beach, California. Employees on the dates set out herein were at a job site at an apartment at 8055 E. Thomas Road, Scottsdale, Arizona.

II.

Respondent was engaged as a subcontractor at the job site, his contract being with the plastering contractor of the apartment being built. He had an employee at the site performing duties in connection with the application and installation of lathing material. Respondent and his employees handle and install and otherwise work on goods, [*22] some of which are produced outside of the state of Arizona and shipped to points inside the state of Arizona. He is an integral part of the construction industry and has a collective bargaining agreement with Wood, Wire and Metal Lathers International Union, AFL-CIO Local #42.

III.

As a result of an inspection by an authorized representative of the Secretary of Labor, Respondent was issued a Citation on February 3, 1972 and a Citation on March 7, 1972, the latter of which was superseded by an amended Citation issued March 10, 1972, both purusuant to Section 9(a) of the Act. Each Citation stated on its face that it was for a serious violation.

IV.

On February 3, 1972, Respondent's employee was working on a scaffold twenty-four feet in the air which was not equipped with guard rails on open sides and ends. Considering all the facts, there was substantial probability that serious physical harm could result from this condition. Respondent did not know the condition of the scaffolding but with the exercise of reasonable diligence could have known it.

On February 3, 1972, at the work place alleged in Scottsdale, Arizona, the scaffolding of Respondent had been "set" [*23] in three pieces, all however adjacent to the same apartment building; the lengths of the three measuring approximately 40 feet, 30 feet and 20 feet. On parts of this scaffolding -- the exact parts being unknown -- there were the following conditions:

1. At least one footing or anchorage for the scaffolding was not sound, rigid and capable of carrying the maximum intended load without settling or displacement.

2. One or more wood members utilized in constructing the scaffold was damaged or broken and in this condition, was reinforced by another wood member.

3. At least one plank on the scaffolding was not overlapped a minimum of twelve inches or secured for movement.

4. In at least one area there were ledgers which did not support the plank supports by extending for at least two poles of the scaffolding. There was at least one ledger missing from one part of the scaffolding.

5. There was no full diagonal face bracing erected across the entire face of the pole scaffolding in both directions.

6. At least two platform planks were not tightly laid and there was a space between them through which tools or material fragments could fall.

All of these conditions in combination [*24] were in violation of 29 CFR 1926.451.

VI.

A reasonable penalty for the serious violation found under the allegations of Expedited Citation for Serious Violation No. 1 is the sum of $250.00. A reasonable penalty for the violation found under the Amended Citation No. 2, which violation is not of a serious nature is the sum of $100.00.

Based upon the foregoing Findings of Fact and upon all facts stipulated, admitted or proved by credible, uncontroverted evidence, the undersigned does hereby make the following:

CONCLUSIONS OF LAW

On March 2, 1972, the Respondent, Kermit L. Stepter, was an employer engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, Supra. The Commission has jurisdiction of the parties and the subject matter of this action.

II.

On the date alleged, Respondent was in violation of 29 CFR 1926.451(a)(4). This was a serious violation in that an employee of Respondent was working on a scaffolding without guard rails at a height of twenty-four feet above the ground. There was a substantial probability that either death or serious physical harm could have resulted from the condition [*25] so existing and Respondent in the exercise of reasonable diligence could have known of the condition of the scaffolding and the violation of the standard in question. Respondent should be assessed a civil penalty in the amount of $250.00 for this serious violation.

III.

On the date alleged, Respondent was in violation of the following scaffolding requirements of the construction standards of the Occupational Safety and Health Act of 1970, Supra. 29 CFR 1926.451(a)(2), (a)(8), (a)(12), (b)(7), (b)(10) and (b)(11). In combination these conditions constituted one violation of the Occupational Safety and Health Act of 1970, such violation not being of a serious nature or character. Respondent should be assessed a civil penalty in the amount of $100.00 for this violation.

ORDER

Based upon the foregoing, it is hereby

ORDERED that Respondent, Kermit L. Stepter be and hereby is found in violation of the Occupational Safety and Health Act of 1970 on February 3, 1972 at a work place located at 8055 E. Thomas Road, Scottsdale, Arizona, as follows:

A serious violation of 29 CFR 1926.451(a)(4). A civil penalty in the amount of $250.00 is hereby assessed for such violation. [*26]

II.

A violation not of serious character and nature for breach of construction standards found in 29 CFR 1926.451(a)(2), (a)(8), (a)(12), (b)(7), (b)(10) and (b)(11). A civil penalty of $100.00 is hereby assessed for such violation.