TRIPLE "A" SOUTH, A DIVISION OF TRIPLE "A" MACHINE SHOP, INC.

OSHRC Docket Nos. 77-2922; 77-3169

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John M. Orban, Associate Regional Solicitor, USDOL

John S. Rawls, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerry W. Mitchell is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Mitchell affirmed a serious citation alleging that Triple "A" South, A Division of Triple "A" Machine Shop ("Triple 'A' South" or "the company") failed to comply with the standard at 29 C.F.R. 1915.41(j)(1) n1 in two instances. He rejected the company's argument that the violations were de minimis and assessed $300 for these violations. The judge also affirmed three additional citations and assessed $200 for five other than serious violations contained in these citations. For the reasons that follow, we hold that the alleged serious violations for noncompliance with section 1915.41(j)(1) were de minimis and we modify the total penalty assessment.

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n1 The standard pertains to access to scaffolds or staging. It provides that "[a]ccess from below to staging more than 5 feet above a floor, deck or the ground shall consist of well secured stairways, cleated ramps, fixed or portable ladders meeting the applicable requirements of 1915.42 or rigid-type noncollapsible trestles with parallel and level rungs."

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I

When an Occupational Safety and Health Administration compliance officer inspected Triple "A" South's workplace on August 8 and 9, 1977, the company was performing ship repairing work on the U.S.S. Florikan at the United States Naval Station in San Diego, California. Two scaffolds were in use -- one on the drydock alongside the ship ("the drydock scaffold") and the other around the mast of the ship ("the mast scaffold"). The scaffolds were constructed of stacked and interlocking metal pipe sections or frames ("the sections"), approximately four feet wide, ten feet long, and seven feet high. The drydock scaffold was at least 32 feet high and the mast scaffold was approximately 70 feet high.

Each section consisted [*3] of four vertical pipes ("the legs") which were attached at their upper ends to four horizontal pipes ("the platform supports") upon which planks were placed for a platform. On each leg of some sections, there was a stiffener n2 which was ladder-like in form. n3 That is, between each leg and a vertical pipe located about eight inches away from the leg there extended three cross pieces or rungs ("cross pieces"). The lowest cross piece was curved and somewhat shorter than eight inches long. It connected the lower end of the vertical pipe to the leg of the section approximately two feet from the base of the leg. The other two cross pieces were parallel and level. They were spaced along the five-foot length of the vertical pipe at unspecified intervals, dividing the length approximately into thirds. At its upper end, the vertical pipe was attached to a horizontal pipe running from leg to leg immediately below the platform supports.

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n2 In the record, the spelling, "stiffners," also appears. For the sake of consistency, "stiffeners" will be used throughout this decision.

n3 The employee who assembled these scaffolds testified that there were two types of scaffold sections in use at the time of the inspection. One, which he called "ladder frames," had cross pieces running completely across from leg to leg. The other type had cross pieces only as stiffeners. The ladder frames made up the first one or two levels of these scaffolds. The sections having stiffeners ("stiffener sections") made up the upper levels.

[*4]

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During the inspection, the compliance officer saw one of the company's employees climbing the stiffeners of the drydock scaffold. At the 21-foot level of the scaffold, the employee was required to "climb actually around the side" of a plank extending about sixteen inches beyond the platform supports. Other planks extended six to twelve inches.

Although the compliance officer did not see any employees using the mast scaffold, the company's representative during the inspection told him that employees had used it. The employees mounted the platforms of the scaffold from a ladder affixed to the mast around which the scaffold was placed. However, at the 35-foot level of the scaffold, a plank nailed into place on a platform blocked further passage up the ladder. To ascend beyond that point, the stiffeners, which were on the outside of the mast scaffold, would have to be used, since there was no other means of access. On the outside of the scaffold, the platform planks extended beyond the platform supports. However, there was no evidence that they extended more than twelve inches.

The Secretary alleged [*5] that Triple "A" South failed to provide adequate access to the drydock scaffold [item 1(a) of the serious citation in Docket No. 77-2922] and to the mast scaffold [item 1(b) of the serious citation in Docket No. 77-2922]. At the hearing, Triple "A" South's job superintendent testified that he believed the stiffeners provided adequate access to the two scaffolds.

II

The Secretary alleged that the failure to provide a means of access meeting the requirements of section 1915.41(j)(1) n4 was a serious violation. n5 He contended that the stiffeners were not safe fixed ladders within the meaning of the standard because of the curved bottom cross piece, the two-foot space between the curved cross piece and the next lower step or the ground, the eight-inch width of the cross pieces, and the sixteen-inch protruding plank on the drydock scaffold.

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n4 See note 1 supra.

n5 A serious violation exists where "there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. 666(j).

[*6]

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Triple "A" South contended that the stiffeners in this case were virtually the same as the ladder-like portions of scaffold sections involved in Charles H. Tompkins, 77 OSAHRC 197/D1, 6 BNA OSHC 1045, 1977-78 CCH OSHD P22,337 (No. 15428, 1977), Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977), and Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977). In these cases, the Commission held that the violations of construction standards requiring ladders for safe access to scaffolds were de minimis. n6 Accordingly, Triple "A" South argued that the violations in this case were only de minimis.

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n6 Violations of the Act that are so remotely related to employee safety and health as not to warrant the imposition of an abatement requirement or the assessment of a penalty are characterized by the Commission as de minimis. See Southwestern Elec. Power Co., 80 OSAHRC    , 8 BNA OSHC 1974, 1980 CCH OSHD P24,732 (No. 77-3890, 1980) (lead and separate opinions) and cases cited therein.

[*7]

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Judge Mitchell found Triple "A" South in noncompliance with section 1915.41(j)(1) as alleged and he determined that the violations were serious. He found that because employees were exposed to falls of 21 feet or more onto the drydock and 35 feet or more onto the steel deck of the ship, a substantial probability of serious physical harm existed in both instances. He also found that the company knew of its employees' use of the stiffeners for access. He declined to hold that the violations were de minimis as Triple "A" South argued because of the two-foot space between the curved cross piece and the next lower step. He reasoned that "[t]he facts of the instant case go beyond the latitude permitted by the Commission in accepting a rung spacing of 19 to 21 inches." n7 He also considered that the fall hazard was greatly increased in this case because the platform planks all protruded beyond the platform supports, and he had found that one plank protruded sixteen inches. Accordingly, he affirmed the serious citation.

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n7 The cases to which Judge Mitchell referred were those cited by Triple "A" South -- Charles H. Tompkins, Perini Corp., and Rust Eng'r. Co., supra.

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The judge assessed $150 for each of the two items of the serious citation. For five remaining other than serious violations which he found in these two cases, Judge Mitchell assessed $200. Of this amount, $50 was for noncompliance with section 1915.41(j)(1) in Docket No. 77-3169. Like item 1(b) of the serious citation in Docket No. 77-2922, this violation concerns an obstruction on the ladder affixed to the mast -- a platform plank nailed in place at the fourteen-foot level of the mast scaffold blocked passage on the ladder on September 9, 1977, when Triple "A" South's workplace was inspected for a second time. Judge Mitchell's assessments were based partially on the following findings about Triple "A" South's good faith:

The good faith of Triple "A" is cast somewhat in doubt on this record. There is no showing of any kind of a safety program conducted by Triple "A". In fact, the record indicates a negative attitude towards [*9] safety by Triple "A" management personnel. The Triple "A" Job Superintendent stated that he felt climbing the stiffners on the scaffolds was an adequate means of access.

III

Triple "A" South filed a petition for review arguing that the judge's decision is erroneous in several respects. Acting Chairman Barnako granted the petition on three issues, to which our review is limited: n8

(1) Whether the serious citation in Docket No. 77-2922 should be vacated in view of the terms of 29 C.F.R. 1915.41(j)(4). This standard provides that "[l]adders forming integral parts of prefabricated staging are deemed to meet the requirements of these regulations."

(2) If not, whether the violations alleged in the serious citation are de minimis.

(3) Whether the judge erred in concluding from the job superintendent's belief that stiffeners provide safe access that the company's good faith was questionable.

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n8 See Commission Rule 91a(c), 29 C.F.R. 2200.91a(c), now Rule 92(c), 44 Fed. Reg. 70106 at 70111 (1979), [to be codified at 29 C.F.R. 2200.92(c)].

In its petition for review, Triple "A" South did not argue that the violation in Docket No. 77-3169 for noncompliance with section 1915.41(j)(1) was de minimis, as the company did as to the similar violations in Docket No. 77-2922. Because the direction for review is limited to the stated issues, whether the violation in Docket No. 77-3169 was de minimis is not before us.

[*10]

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A

Triple "A" South argues that the stiffeners form "ladders" and the ladders form "integral parts of prefabricated staging." The company therefore contends that section 1915.41(j)(4), the standard referred to in the direction for review, sanctions the use of the stiffeners for access. The company argues that the cited standard, section 1915.41(j)(1), shows that this interpretation of section 1915.41(j)(4) is correct. In lieu of fixed or portable ladders, among other things, section (j)(1) allows the use of "rigid type non-collapsible trestles with parallel and level rungs." Triple "A" South argues that the stiffener sections fall within this description. The bottom cross piece, the company argues, was "curved in form only on the outer edge," and there was nothing in the hearing record to indicate that it is not level and parallel with the other rungs. Thus the company argues that the citation should be vacated.

We do not agree that section 1915.41(j)(4) allows the stiffeners in this case to be used for access. The record reveals, through the unrefuted testimony of the compliance officer, that [*11] the bottom cross piece of the stiffener was curved. The record contains no support for Triple "A" South's argument that this cross piece was curved only on the outer edge. Accordingly, the stiffener sections plainly do not meet the requirement of section 1915.41(j)(1) for "parallel and level rungs" on any trestle used for access. If we were nevertheless to read section 1915.41(j)(4) to allow the use of stiffeners, holding that they are "ladders forming integral parts of prefabricated staging," the result would be that parallel and level rungs are required by section 1915.41(j)(1) only on unprefabricated or job-made trestles. This interpretation of section 1915.41(j)(1) would be inconsistent with the standard's unequivocal and broad requirement for "parallel and level rungs" on "rigid type non-collapsible trestles."

But the central difficulty with Triple "A" South's interpretation lies in section 1915.41(j)(4) itself. It sanctions only "ladders forming integral parts of prefabricated staging," whereas Triple "A" South would have the provision sanction the use of stiffeners, which are principally braces and only incidentally or secondarily serve as ladders.

Unlike section 1915.41(j)(1), [*12] section 1915.41(j)(4) does not specifically require that the ladders meet the requirements of section 1915.42 concerning ladder requirements. However, the reference in section 1915.41(j)(4) to ladders is a reference to a precise category of equipment which is particularly covered in section 1915.42. The indication therefore is the access, rather than something else, must be the primary function of the parts of the frame serving as the ladder. Accordingly we hold that section 1915.41(j)(4) does not sanction the use of the stiffener sections in this case and that section 1915.41(j)(4) therefore does not require vacation of the serious citation.

B

Trible "A" South continues to argue on review that any violation of section 1915.41(j)(1) was only de minimis. The company argues that the evidence about the spacing and width of the cross pieces of the stiffeners is substantially similar to that in Charles H. Tompkins, Perini Corp., and Rust Engineering Co., supra, and that the planks were all in compliance with 29 C.F.R. 1915.41(h)(3) which requires that planks "project beyond the supporting members at either end by at least 6 inches but [not] . . . more than [*13] 12 inches. . . ." The company argues that the compliance officer's testimony about the plank projecting sixteen inches beyond the platform supports and the two-foot step up to the bottom cross piece was unreliable and should not be credited.

Triple "A" South was in noncompliance with section 1915.41(j)(1). Stairs or ramps obviously were not used, and as we have found, the stiffener sections do not meet the requirement for "rigid type non-collapsible trestles with parallel and level rungs." Furthermore, the stiffeners cannot be considered to be fixed or portable ladders. Like section 1915.41(j)(4) which we have interpreted in this case, section 1915.41(j)(1) refers to ladders as a precise category of equipment -- "fixed or portable ladders meeting the applicable requirements of section 1915.42," which contains the requirements for ladders. Because the primary function of the stiffeners is bracing on the legs, the stiffeners are not ladders within the meaning of section 1915.4(j)(1). n9

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n9 Moreover, the stiffeners plainly are not complying portable ladders. The 24-inch rung spacing and the 8-inch rung widths do not meet the requirements of the United States of America (now the American National Standards Institute or "ANSI") Code for Portable Metal Ladders, A14.2. These ANSI provisions require rung spacing not exceeding twelve inches and rung widths of at least twelve inches. Section 1915.42(a)(4) incorporates these provisions by reference, and the cited standard, section 1915.41(j)(1), requires fixed and portable ladders to meet "the applicable requirements of section 1915.42."

However, the stiffeners cannot be viewed as an attempt to supply portable ladders since portable ladders within the meaning of section 1915.42 are not permanently attached to the structure to which they give access. See section 1915.42(a)(3) [portable ladders are required to be "lashed, blocked, or otherwise secured to prevent their being displaced"]; see generally ANSI A14.2, supra, to which section 1915.41(j)(1) refers.

As has been stated, the stiffeners are not complying fixed ladders because the stiffeners are not primarily intended for use as ladders. However, it appears that they otherwise meet all "applicable requirements." The ANSI standard concerning fixed ladders, ANSI A14.3, Safety Code for Fixed Ladders, containing requirements similar to those in ANSI for portable metal ladders, is not incorporated by reference into section 1915.42. Moreover, there are among the general requirements of section 1915.42 on ladders no provisions specifically concerning rung spacing or rung width.

[*14]

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We conclude, however, that the violations presented only trifling hazards because the deviations from applicable requirements in section 1915.41 and section 1915.42 were negligible. First, the stiffeners are analogous to "rigid type non-collapsible trestles with parallel and level rungs," one requirement of section 1915.41(j)(1). Toward compliance with this requirement, the stiffeners were fixtures of the metal pipe scaffold sections and all cross pieces except the bottom ones were parallel and level. Moreover, although the bottom ones were curved, they were virtually as wide as the other cross pieces and sufficiently wide to serve as rungs. See Ray Boyd Plaster & Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No. 76-814, 1978).

Second, section 1915.41(j)(1) alternatively requires "fixed or portable ladders meeting the applicable requirements of section 1915.42." The stiffeners are not analogous to portable ladders, see note 9 supra, and there are no requirements in section 1915.42 applicable to fixed ladders. Furthermore, section 1915.41(h)(3) sanctions planks [*15] projecting six to twelve inches beyond the platform supports. In this case, only one plank projected farther than permitted by the standard, and then only by four inches.

A fall in this case would present a substantial likelihood of serious physical har, but because the deviations from applicable requirements were negligible, the likelihood of a fall was not significantly greater than if complying fixed ladders or trestles with complying rungs were used. Accordingly, the noncompliance in this case presented only a trifling hazard and we therefore hold that the violations were de minimis. See, e.g., Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Ray Boyd Plaster & Tile, Inc., supra; Clifford B. Hannay & Sons, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978). Accordingly, we require no abatement and assess no penalty.

C

Triple "A" South contends that the penalties assessed by Judge Mitchell were unduly high because he did not give proper consideration to the company's good faith. The company argues that he erred in inferring a lack of good faith from the job superintendent's [*16] belief in the adequacy of the access provided by the stiffeners because, in Charles H. Tompkins, Perini Corp., and Rust Engineering Co., supra, the Commission held that similar built-in ladders provided adequate access. Triple "A" South also argues that the judge erred in inferring a lack of good faith from the company's failure to present evidence on its safety program. Triple "A" South reasons that it is the Secretary who must present evidence of a deficient safety program if he intends to show a lack of good faith, not the employer who must prove his good faith.

These arguments have merit. We have held that the violations in this case were de minimis for reasons very similar to those given in the cases to which Triple "A" South refers. See Ray Boyd Plaster & Tile, Inc., supra, and cases cited therein. That there are no rung spacing and width requirements for fixed ladders in section 1915.42 and the platform planking projected beyond the platform supports as required by section 1915.41(h)(3) buttress the job superintendent's belief in the adequacy of the stiffeners for access. Accordingly, the company's good faith should not be impugned [*17] because of this belief. Moreover, because there is no evidence that the company lacked an adequate safety program, no inference should be drawn that it was inadequate. See J.L. Foti Construction Co., 80 OSAHRC    , 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (No. 76-4429, 1980); cf. Druth Packaging Co., 80 OSAHRC    , 8 BNA OSHC 1999, 1980 CCH OSHD P24,729 (No. 77-3266 1980) (when the reasonableness of an abatement date is in issue, the burden of proving reasonableness is on the Secretary).

As we have indicated, we assess no penalty for the alleged serious citation in Docket No. 77-2922 since we characterize the violations as de minimis. The similar citation in Docket No. 77-3169, involving obstruction of the ladder affixed to the mast and the consequent use of the stiffeners for access, warrants no penalty also. n10 The gravity is negligible because of the trifling hazard presented by use of the stiffeners. Furthermore, as we have discussed, the company's good faith should not be questioned because of its failure to take measures eliminating the need for employees to use the stiffeners and its failure to prove an adequate safety program.

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n10 See note 8 supra.

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We assess $150 for the remaining four other than serious violations, which is the amount assessed for them by the judge. Triple "A" South has a prior history of violation and is medium in size. Therefore, although the gravity of these violations was "less than moderate" for the reasons assigned by the judge and the judge improperly devaluated the company's good faith, $150 for the four other than serious violations is appropriate.

Accordingly, we affirm the citation in Docket No. 77-2922 alleging noncompliance with section 1915.41(j)(1) but we characterize the violations as de minimis. We assess no penalty and require no abatement. We assess no penalty for the citation in Docket No. 77-3169 alleging noncompliance with section 1915.41(j)(1). We assess $150 for the four remaining other than serious violations for which the judge had assessed penalties.

SO ORDERED.

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part:

I concur in the majority's [*19] conclusion that the Respondent violated the Act by failing in two instances to comply with 29 C.F.R. 1915.41(j)(1). n1 However, I dissent from the majority's holding that the violations were de minimis. The Commission may classify a violation as de minimis where the relationship of the violation to safety and health is so remote as to be negligible. E.g., Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978); National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD P21,114 (No. 7987, 1976). In this case, use of the stiffeners to gain access to the two scaffolds exposed the Respondent's employees to the hazard of falling at least 35 feet. The violations have a direct and immediate relationship to employee safety, and I would hold that the violations were serious in nature, as alleged by the Secretary and affirmed by the judge.

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n1 I also concur in the majority's decision to assess a $150 penalty for the four other than serious violations in Docket No. 77-2922. However, because I conclude that use of the stiffeners presented a significant danger, I do not agree with the majority's decision to assess no penalty for the other than serious violation of 1915.41(j)(1) in Docket No. 77-3169.

[*20]

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The stiffeners in question were intended to brace the legs of each of the stacked scaffold sections. The cross pieces (rungs) of the stiffeners were approximately eight inches wide. The step up to the first rung of each scaffold section was 2 feet. This 2-foot step was repeated once in approximately every 7 feet for the entire height of the two scaffolds. Judge Mitchell termed this spacing "extreme." A platform was located at the top of each scaffold section (every 7 feet) and the planks forming the platforms extended out over the stiffeners by 6 to 12 inches at most platform levels. Judge Mitchell described the situation as follows: The employee climbing these stiffeners "would have to stretch or extend himself considerably while climbing so as to take single upward steps of 2 feet in order to pass each [area] where the rung spacing was 2 feet [and] would also have to climb around or over planks protruding beyond the frame." n2 The stiffeners were the sole means of access to the scaffold on the drydock, which was at least 32 feet high. In addition, it was necessary to use the stiffeners to gain [*21] access to the 35-foot level of the 70-foot high scaffold around the mast.

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n2 Triple "A" contends that the compliance officer's testimony regarding the dimensions of the scaffold sections, relied on by the judge, was unreliable. However, the compliance officer took specific measurements of those dimensions and estimated the length of the overhanging planks. Triple "A" presented no contrary measurements at the hearing and failed to discredit the compliance officer's testimony. Estimates of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD P21,120 (No. 5873, 1976), aff'd, 578 F.2d 1021 (5th Cir. 1978). Thus, the compliance officer's unrebutted testimony is probative in this case.

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The danger of falling from these stiffeners with 2-foot rung spacing was intensified because an employee climbing the stiffeners would be forced to stretch out from the ladder to climb around [*22] the planks extending from most of the platforms. These hazards would not be encountered if fixed ladders or trestles with complying rungs had been placed away from the protruding planks. n3 See lead opinion at Part III.B.

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n3 The Respondent argues that the protruding planks complied with the rdequirement of 29 C.F.R. 1915.41(h)(3) that "[p]latform planking shall project beyond the supporting members at either end by at least 6 inches but in no case shall project more than 12 inches unless the planks are fastened to the supporting members." However, there is no reason that the Respondent could not have complied with section 1915.41(h)(3) and also provided safe access to the scaffolds by placing ladders away from the plank ends so that the employees would not have had to contend with the projecting planks.

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The hazards here are substantially different and greater than those in the scaffold cases relied on by the majority in which de minimis violations were found. See Ray Boyd Plaster & Tile, Inc., [*23] 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No. 76-814, 1978), and cases cited therein; Charles H. Tompkins, 77 OSAHRC 197/D1, 6 BNA OSHC 1045, 1977-78 CCH OSHD P22,337 (No. 15428, 1977); Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977), and Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977). In none of these cases except Tompkins was the scaffolding more than 15 feet high. In Tompkins, employees were exposed to a 30 foot fall to an interior deck, but in that case there was no indication that boards protruded into the climber's path. Here, the potential fall was at least 35 feet from one scaffold and at least 32 feet from the other, with protruding boards at most platform levels. In addition, in none of the cases relied upon by the majority was the spacing between rungs as great as that in the instant case. Also, in none of those cases did boards protrude into the climber's path more than 5 to 6 inches, and then onely once on the entire scaffold. See Rust Engineering, supra. Here, boards protruded 6 to 12 inches at most platform levels and in [*24] one instance protruded approximately 16 inches. n4

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n4 The other cases relied on by the majority did not involve scaffolds. The hazards there also were trifling in comparison to those involved here. See Continental Oil Co., supra (stairways with 5 risers on sloped earthen dikes had only one handrail rather than the required two); Clifford B. Hannay & Sons, Inc., supra (no significant electrical violation where a later edition of the National Electrical Code, incorporated by reference in the cited standard, so indicated).

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I cannot conclude that the hazards to which the Respondent's employees were exposed were negligible in light of the significantly impaired climbing safety on these scaffolds. Since falls from the heights involved in this case would be likely to result in serious physical harm or death, I would affirm the judge's decision finding the violations serious as alleged. n5

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n5 A violation is serious within the meaning of 17(k) of the Act, 29 U.S.C. 666(j), if there is a substantial probability that death or serious physical harm could result from an accident. The probability that an accident will occur is not relevant. Electrical Constructors of America, Inc., 80 OSAHRC    , 8 BNA OSHC 2117, 1980 CCH OSHD P24,809 (No. 76-910, 1980).

[*25]

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