SOMOGYI CONSTRUCTION CO., INC.
OSHRC Docket No. 76-3020
Occupational Safety and Health Review Commission
October 28, 1977
[*1]
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, USDOL
Zoltan Somogyi, President, Somogyi Construction Company, Inc., for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge Richard D. Benedetto is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision found that the respondent was in violation of the standard codified at 29 C.F.R. § 1926.451(a)(4) n1 because a 13-foot high scaffold at its worksite lacked toeboards. A penalty of $250 was assessed for this violation. The Judge's decision is affirmed.
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n1 That standard provides in pertinent part:
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, . . . .
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The respondent's masons and laborers were constructing the walls of a building with cinder blocks when its worksite was inspected. The respondent was cited for a violation of 29 C.F.R. [*2] § 1926.451(a)(4) because two scaffolds at its worksite, one 13 feet in height and one 24 feet in height, lacked guardrails and toeboards. The Judge found that a violation was not established with respect to the lack of guardrails and toeboards on the 24-foot scaffold or with respect to the lack of guardrails on the 13-foot scaffold. However, he affirmed the portion of the citation pertaining to the lack of toeboards on the 13-foot scaffold.
On review, the respondent argues that the Judge erred in finding a violation for the lack of toeboards on the 13-foot scaffold. The exact nature of the respondent's objections to the Judge's decision is not clear. However, the respondent's principal contention appears to be that the use of toeboards was impossible for the same reasons that it maintained at the hearing that guardrails could not be used.
Before the Judge, the respondent argued that it would have been impossible to perform the work being done at the time of the inspection if guardrails had been used on the 13-foot scaffold. Specifically, the respondent contended that it had not yet installed guardrails because they would have prevented the loading of material onto the scaffold, [*3] an operation that was being performed at the time of the inspection. The materials being loaded were lintils, devices 12 feet in length that were used to support masonry work over windows and doorways. The respondent argued that guardrails would have prevented the loading of the lintils because they were longer than the eight-foot distance between the guardrail supports.
The Judge found this argument persuasive and vacated the portion of the citation pertaining to the lack of guardrails. He pointed out, however, that toeboards would not have prevented placing the lintils on the scaffold.
The Commission agrees with the Judge's conclusion. The evidence reveals no reason why toeboards, which must only be four inches in height, n2 would have made the loading of the lintils impossible. The employer has the burden of proving that compliance with the standard is impossible. A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD para. 21,573 (No. 12501, 1977), appeal docketed, No. 77-1146 (1st Cir., March 28, 1977). The respondent did not satisfy this burden with respect to toeboards, having put forth no convincing explanation of why they could not be [*4] used. n3
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n2 29 C.F.R. § 1926.451(a)(5).
n3 See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977), for the individual views of the Commission members concerning the proof required to establish an impossibility defense.
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An additional argument made by the respondent is that there can be no violation for failure to install toeboards when a violation for failure to install guardrails on a scaffold has not been established. The Commission rejects this contention. Guardrails and toeboards protect against different hazards. Guardrails are designed to prevent employees from falling off platforms. The purpose of toeboards is to keep materials from failing off platforms onto employees working below. 29 C.F.R. § § 1926.451(a)(5) and 1926.452(b)(31). Consequently, the impossibility of using one of these safety devices does not excuse the failure to use the other.
Finally, the respondent asks the Commission to eliminate the penalty for this violation. The Judge [*5] assessed a penalty of $250 for this violation primarily because he considered its gravity high, since cinder blocks on the scaffold could inflict serious injuries if they fell on an employee working below. The Commission's review of the evidence indicates that the Judge's penalty assessment was appropriate in view of the hazard that was present.
Accordingly, the Judge's decision is hereby affirmed.