SECRETARY OF LABOR,
Complainant,

v.

SCHWARZ-JORDAN, INC.,
Respondent.

OSHRC Docket No. 81-2738


DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Three citation items alleging violations of construction safety standards were issued to Schwarz-Jordan, a drywall subcontractor at a large construction project in Arlington, Texas.  Schwarz-Jordan was alleged to have violated 29 C.F.R. 1926.451(e)(10) (unguarded scaffold), 1926.54(d)(lack of laser warning placard) and 1926.401(a)(2)(lack of label identifying electric screw gun as double-insulated).  The administrative law judge held that the employer violated the cited standards.  We affirm in part and reverse in part.

Citation 1, Unguarded Scaffold--29 C.F.R. 1926.451(e)(10)

Citation 1 alleges that Schwarz-Jordan violated section 1926.451(e)(10)[[1]] by failing to install guardrails on the open side of a scaffold.  At the hearing the compliance officer who inspected the worksite testified that he observed an employee kneeling on a mobile scaffold near the edge of a floor.  The floor on which the scaffold was located was estimated to be ten feet six inches above the ground.  The scaffold was five feet eight inches in height and was placed near a window opening approximately four feet high and eight wide.  The scaffold was positioned in such a way that if the employee had been standing, the top of the window opening would bisect the trunk of his body.  A vertical pipe crossed the opening and a horizontal mullion was located approximately four feet above the scaffold, slightly higher than the top rail on a standard guardrail.  While kneeling on the scaffold, the employee's hand rested on the mullion.

At the hearing, the Secretary argued that the scaffold was required to have a guardrail because the total fall distance from the unguarded scaffold platform was greater than ten feet.  Relying on Julius Nasso Concrete Corp., 77 OSAHRC 45/C6, 5 BNA OSHC 1235, 1977-78 CCH OSHD 21,720 (No. 7542, 1977), the administrative law judge held that the scaffold was more than 10 feet above "the ground or floor" because the fall distance was greater than ten feet.

On review, Schwarz-Jordan argues that Commission precedents have misinterpreted the standard.  In the employer's view, guardrails were not required because the scaffold itself was less than ten feet in height.  The employer contends that the judge's interpretation departs from the plain language of the standard and renders the standard unenforceably vague.  The Secretary argues that the Commission's "authoritative" interpretations of the standard have eliminated any possible vagueness problems.

The question for decision is whether a standing scaffold that is less than 10 feet in height may be "more than 10 feet above the ground or floor" within the meaning of section 1926.451(e)(10).  Julius Nasso, on which the judge relied, involved a different standard, section 1926.451(o)(7), which regulates horse scaffolds.  The Commission's interpretation of subsection (o)(7) in that case turned entirely on its interrelation with another provision, subsection (o)(1), which has no analogue in subsection (e).  The Commission reasoned in Julius Nasso that reading the phrase "10 feet above the ground or floor" in subsection (o)(7) as the distance from a horse scaffold to its supporting base would render "meaningless" the separate requirement in subsection (o)(1) that horse scaffolds not be constructed more than two tiers or 10 feet in height.  It therefore concluded that these two provisions could be reconciled only by construing the phrase "10 feet above the ground or floor" as the potential fall distance, "regardless of the height of the scaffold above its supporting base."  5 BNA OSHC at 1236, 1977-78 CCH OSHD at p. 26,102.

When the Commission did address the standard before us in Automatic Sprinkler Corp., 79 OSAHRC, 102/B2, 7 BNA OSHC 1957, 1979 CCH OSHD 24,077 (No. 76-5271, 1979), this distinction was overlooked.  The Commission cited Julius Nasso for the broad proposition that the standard protects employees from any falls of 10 feet or more without considering that there was no analogue in subsection (e) to subsection (o)(1), which was the basis for the majority interpretation in Julius Nasso.  The extent of the Commission's reasoning in Automatic Sprinkler was as follows:  "The obvious purpose of the standard is to protect employees exposed to the hazard of falling more than 10 feet from a scaffold platform.  It would be inconsistent with this purpose to hold the relevant distance to be that from the scaffold platform to the surface on which the scaffold stands if a person falling from the scaffold would fall a greater distance."  7 BNA OSHC at 1958-59, 1979 CCH OSHD at p. 29,244 (citation omitted.)  Because the Commission decision in Automatic Sprinkler does not adequately address questions about the proper interpretation of section 1926.451(e)(10) within the context of the entire standard, we must reexamine that holding.

The phrase to be construed in section 1926.451(e)(10) is "above the ground or floor."  A manually propelled mobile scaffold has its base on the ground or floor, so the natural interpretation of "above the ground or floor" would be the distance between the scaffold platform and the base of the scaffold.  Our interpretation of this phrase is supported by section 1926.451's general guardrail provision, subsection (a)(4), which also requires guardrails on scaffolds "more than 10 feet above the ground or floor" and goes on to require guardrails on narrow scaffolds 4 to 10 feet "in height."   This provision clearly uses the terms "above the ground or floor" and "in height" as equivalent expressions.[[2]]  Section 1926.451 repeatedly uses the word "height" to refer not to the elevation of a scaffold but to the distance above its base.[[3]]

In other instances where the Secretary has meant to refer to "fall distance" he has done so explicitly.  E.g., 29 C.F.R. 1926.750(b)(1)(ii).  Where the Secretary intended in section 1926.451 standards to predicate the guardrail requirement on fall distance, the qualifying phrase "more than 10 feet above the ground or floor" was omitted.  See 29 C.F.R. 1926.451(t)(3)(window jack scaffolds, for working at window openings, shall have guardrails unless the employee is provided with a safety belt).  An employer who attempted to familiarize himself with his duties under section 1926.451 would readily conclude that when the standards refer to a vertical distance, they refer to the distance above the scaffold's base, rather than its elevation.  To construe the standards otherwise would deprive employers of the fair notice that due process requires.  Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).

Our construction is also supported by the legislative history of the standard.  Although the basis and purpose statement for section 1926.451 is unilluminating, see 36 F.R. 7340 (1971), the standard does have some legislative history.  Section 1926.451 is very similar to 29 C.F.R. 1910.28, the general industry counterpart standard for scaffolds.  Section 1910.28 is directly derived from ANSI A10.8-1969, Safety Requirements for Scaffolding.  29 C.F.R. 1910.31.  Because section 1926.451 is also quite similar to the ANSI standard, it is reasonable to conclude that when the Secretary drafted 1926.451, he used the ANSI standard as a model. Section 3.3 of the ANSI standard corresponds to subsection 1926.451(a)(4) and reads in part as follows:

Guardrails and toeboards should be installed on all open sides and ends of platforms more than ten feet above the ground or floor (except: 1) scaffolding wholly within the interior of a building and covering the entire floor area of any room therein and not having any side exposed to a hoistway, elevator shaft, stairwell, or other floor openings . . . .

(Emphasis added.)  That the italicized language was omitted from the final OSHA standard demonstrates a regulative determination by the Secretary that the critical distance in determining whether guardrails are necessary is not the fall distance.  On the contrary, we view the fact that the OSHA drafter omitted from section 1926.451 the italicized language in section 3.3 as strong evidence that section 1926.451 was not intended to be read as the Secretary urges.

The regulations set forth in section 1926.451 describe in detail a wide range of scaffold types and provide for the type of fall protection to be used.  This scheme of regulation takes into account both the physical make-up of the scaffold and the reality of the work situations in which it is used.[[4]]  It cannot be controverted that the Secretary, in the exercise of rulemaking authority, may tailor remedies to fit actual workplace hazards.  That some situations may not be covered to the satisfaction of all parties is inevitable.  This Commission, as an adjudicatory body, cannot weigh the merits of these policy decisions nor can we substitute personal choices for that embodied in the standard.  Lisbon Contractors, 84 OSAHRC, 11 BNA 1971, 1974, 1984 CCH OSHD 26,924, p. 35,400 (No. 80-97, 1984).   We are required to give effect to what the standards were intended to say when read within the context of other relevant standards, not what the standards could have said.   See, e.g., Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).

We therefore overrule Automatic Sprinkler and hold that the phrase "above the ground or floor" refers to the distance between a scaffold platform and the floor or ground on which a standing scaffold rests.  We therefore vacate citation 1.

Citation 2, Item 2, Laser Warning Placard--29 C.F.R. 1926.54(d)

Item 2 of citation 2 alleges that Schwarz-Jordan violated section 1926.54(d) by not posting a standard laser warning placard in an area where a laser was being used.[[5]]   Schwarz-Jordan was using a laser to determine the height of interior walls.  The laser was situated between eight-and-a-half and nine feet off the floor.   Workers standing on 32" high stilts were in the area installing sheetrock.  No warning placard was posted.  The employer's job superintendent testified that the workers in the area of the beam were "below the laser light, usually about two inches.  The beam will be hitting you in the top of the head . . . . you don't have to look into the laser, itself, to see it."  The witness also testified that there was "no way" that the beam would shine "directly" into the employees' eyes.

The employer argues that there was no hazard due to the placement of the laser and therefore the standard was not violated.  The judge found that "[a]s it was being used," the laser posed no "substantial" hazard to employees in the area.  However, he concluded that the standard presumes the existence of a hazard and held that the standard was violated.

We conclude that the standard was violated.   Unlike some standards, section 1926.54(d) does not require that there be a "hazard" to trigger the employer's duty.  Unlike other laser safety provisions in section 1926.54, subsection (d) is not predicated on the laser's power output.  Compare sections 1926.54(c), (j)(1)-(3), and (1).  We therefore agree with the judge that the Secretary satisfied his burden of proving that the standard was violated when he showed a standard laser warning placard was not posted in an area in which a laser was used.[[6]]

However, Schwarz-Jordan's argument that there was no hazard because of the laser's location in effect raises the question of whether the violation was de minimis, i.e., that the hazard involved bears such a negligible relationship to employee safety or health as to render inappropriate the imposition of a penalty and the entry of an abatement order.  Bethlehem Steel Corp., 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD 25,645 (No. 77-617, 1981).  The testimony of Schwarz-Jordan's job superintendent reveals that at best the laser beam was inches from striking the eyes of these workers, an extremely narrow margin on which to rest the safety and health of employees.  In any event, there is no evidence that these workers could not be harmed by incidental observation of the laser or by diffused reflected light.  See 29 C.F.R. 1926.54(j)(2) & (3) and n.6, supra. We cannot conclude that the violation was de minimis and therefore affirm this item.

Citation 2, Item 3, Unmarked Screw Gun---29 C.F.R. 1926.401(a)(2)[[7]]

Item 3 of citation 2 alleges that the employer violated section 1926.401 (a)(2)'s requirement that double-insulated tools be "distinctively marked."  At the worksite, the compliance officer observed an employee using a double-insulated electric screw gun that was not marked to indicate that it was double-insulated.  A witness for the employer testified that the screw gun had previously been marked, but the sticker had peeled off after a few days of use.

Before the judge, Schwarz-Jordan argued that there was no hazard because the tool was double-insulated.  The judge affirmed the citation item, reasoning that whether this particular tool actually presented a hazard was irrelevant.  On review, the employer renews its argument that the citation item should be vacated because the screw gun was double-insulated and presented no hazard.   The Secretary argues that the standard does not require proof of a hazard and that the judge's decision should be affirmed.

We agree with the administrative law judge and the Secretary that the standard was violated, but we conclude that the violation was de minimis.  A violation of a standard is properly characterized as de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of a penalty and the entry of an abatement order.  It is undisputed that this particular screw gun was double-insulated and therefore presented no hazard to the employee using it.  The hazard addressed by the standard is electrocution from ungrounded, single-insulated tools that employees do not know are single-insulated.  In this case, that hazard did not exist.  Schwarz-Jordan's screw guns were all double-insulated.  The screw gun at issue here was owned by the employee using it and it is unrealistic to believe that he would not know that it was double-insulated. The record furnishes no basis for finding that single-insulated tools were used on the worksite.  Under these particular circumstances, the lack of an identifying sticker was a de minimis violation.

Accordingly, the judge's decision is reversed in part and modified in part.  Citation 1 is vacated, item 2 of citation 2 is affirmed, and item 3 of citation 2 is modified to a de minimis notice and affirmed as so modified.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  July 20, 1984

CLEARY, Commissioner, dissenting in part:

I dissent from the majority's decision to vacate the scaffold citation and from the characterization of the screw gun item as de minimis.

The Scaffold

As this Commission stated in Automatic Sprinkler, interpreting section 1926.451(e) (10)'s guardrail requirement according to the distance of the scaffold from its base, rather than its greater distance from the ground or floor, is inconsistent with the regulatory purpose.  The obvious purpose of the standard is to protect employees exposed to the hazard of falling more than ten feet from a scaffold.  Yet, under the majority's new construction of the standard, a guardrail would be required on the open edge of an eleven-foot-high scaffold, but no protection would be required on the open side of a nine-foot-tall scaffold pushed flush against the edge of a building 100 feet above the ground.

Inasmuch as this result makes no sense, one must wonder what policy choices of the standard's drafters the majority believes itself to be vindicating.  We were recently told in Lisbon Contractors, Inc., 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD 26,924, p. 34,500 (No. 80-97, 1984), that the Secretary's standards "set policy [and] strike a balance between the protection of employees and the imposition of burdens on employers," and that the Commission may not "upset that balance and substitute a new one."  In seeking that balance here, the majority considers the words of the standard but goes no further.  It does not consider how or if its construction squares with the protective purpose of the standard--to keep employees from falling off scaffolds--or the drafter's purpose in choosing ten feet as a trigger for the imposition of a burden on employers.  The majority does not consider, let alone explain, why the dangers to employees are materially different depending on whether they are exposed to a 100-foot fall from a 100-foot tall scaffold or from a 10-foot high scaffold located 90 feet above the ground.  The majority does not provide, and I cannot conceive of, any reason why the provision of guardrails on scaffolds becomes more burdensome when the scaffold platform is less than 10 feet above the base.

I recognize that adjudicatory bodies must follow even the most questionable construction of a statute or regulation if that construction was intended by the drafter.  See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982), and cases cited.  What evidence is there that the majority's construction reflects the drafters' intent?

Like the majority, I begin with the words of the standard.  The critical phrase is "scaffolds more than 10 feet above the ground or floor."  On the one hand, one could read this phrase as indicating that guardrails are required when the fall distance exceeds ten feet as measured from either the floor on which it rests or any adjacent ground level.  This construction would protect employees and not increase burdens on employers.  On the other hand, one may read the phrase as the majority does--as reflecting the simple fact that a scaffold is erected on or suspended over a "ground" or a "floor."  As I have said, however, this construction serves no discernible purpose.

The majority finds great significance, however, not in the critical words "above the ground or floor" in section 1926.451(e)(10), but in the word "height" in section 1926.451(a)(4) and other provisions in section 1926.451.  In section 1926.451(a)(4), the terms "above the ground or floor" and "height" are said to have been used as equivalent expressions.  The majority notes that many other provisions in section 1926.451 use the term "height" to mean the distance between a scaffold's platform and base.  Therefore, the majority reasons, "above the ground or floor" must also mean the distance between a scaffold's platform and base.

What this syllogism overlooks is that the word "height" is used throughout this standard in the same fashion as ordinary speakers and writers of the English language use it--in different senses depending upon the intent of the speaker or writer.  In subsection (a)(4), the word "height" was used in the sense of elevation.  In the provisions cited by the majority, it was used in the different sense of the distance from the top to the bottom of something.  The difference in meaning can be attributed to the fact that in subsection (a)(4), the drafters were concerned with fall distance, and had no reason to be concerned with how tall the scaffold is.  In the other provisions cited by the majority, however, the drafters were concerned with the structural stability of scaffolds, and were therefore vitally concerned with the distance from the base to the platform.   It is well-accepted that the same word may be used and construed to mean different things in the same statute or regulation depending on the purpose of the drafter.  Pennsylvania v. I.C.C., 535 F.2d 91, 94 (D.C. Cir. 1976), and cases cited.

This view is confirmed by the standard's legislative history.  As the majority notes, section 1926.451 is very similar to section 1910.28, which was directly derived from ANSI A10.8--1969, Safety Requirements for Scaffolding.  29 C.F.R. 1910.31.  Section 3.3, the "general requirements" provision of the ANSI standard, corresponds to subsection 1926.451(a)(4) and reads in part as follows:

Guardrails and toeboards should be installed on all open sides and ends of platforms more than ten feet above the ground or floor (except: 1) scaffolding wholly within the interior of a building and covering the entire floor area of any room therein and not having any side exposed to a hoistway, elevator shaft, stairwell, or other floor openings . . . .

(Emphasis added.)  The italicized language clearly demonstrates that the intent of the drafters of the ANSI standard that the critical distance in determining whether guardrails are necessary is the fall distance, not the distance from a scaffold's base to its platform. To claim as the majority does that the deletion of the italicized language from the final OSHA standard reveals that the Secretary was no longer chiefly concerned with fall distance is simply to overlook the entire purpose of the standard.

The majority suggests that its construction is necessary to provide constitutionally adequate notice of an employer's duty under the standard.  The test for constitutionally adequate notice is whether a reasonable employer familiar with the circumstances would recognize that it is under a duty.  A "reasonable" employer, however, is concerned with the safety and health of his employees.  Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 731 (6th Cir. 1980).  I have no doubt that such an employer would recognize that this standard is concerned with fall distance, that its purpose is to save lives, and that putting an unguarded scaffold flush against the unguarded edge of a building defeats that purpose.   See Automatic Sprinkler Corp., 7 BNA OSHC at 1959, 1979 CCH OSHD at p. 29,244.

The Screw Gun.

I also dissent from the de minimis characterization of the screw gun item.   I do not believe that the hazard was negligible.  The lack of a marking could have killed or seriously injured an employee.  The apparent purpose of the standard is to ensure that single-insulated tools are identified by their lack of a label and accordingly grounded.  However, if an employer fails to mark double-insulated tools, employees would assume that all tools unmarked are double-insulated.  Thus, if an unmarked, single-insulated tool came into use, the absence of a label would not alert the workers to the hidden danger.  It is no answer to say that Schwarz-Jordan used only double-insulated screw guns, that the employee who owned and used it was presumably familiar with its double-insulation, that this screw gun was indeed double-insulated, and that the record is silent on whether single-insulated tools were used.  As Judge Blythe correctly pointed out, these were mere fortuities.  "If one employee could bring to the job a double-insulated tool, another of the 30 employees on this job might bring one that was not."

I would affirm this citation item and require abatement.



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FOOTNOTES:

[[1]] Section 1926.451(e)(10) provides:
1926.451 Scaffolding.
* * *
(e) Manually propelled mobile scaffolds.
* * *
(10) Guardrails made of lumber, not less than 2x4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1x6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor.   Toeboards shall be a minimum of 4 inches in height.  Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[[2]] See also section 1926.451(s)(1), where the "height" of a ladder jack scaffold is explicitly determined by reference to the distance of the platform "above the ground or floor."

[[3]] See subsections (b)(4)(securing of wood pole scaffolds greater than 25 feet in "height"); (b)(16)(wood pole scaffolds shall be erected in accord with tables or by designed qualified engineer depending on "height"); (d)(9)(registered engineer to design frame scaffolds "over 125 feet in height above the base plates"); (e)(1)("height" of mobile scaffold towers not to exceed four times base); (e)(7)(ii)(no riding unless base is one-half "height"); (n)(1)(squares of bricklayers' square scaffolds not to exceed five feet "in height"); (n)(6)(same scaffolds not to exceed three tiers "in height"); (o)(1)(horse scaffolds no more than two tiers "in height"); and (y)(4)(ii)(poles of pump jack scaffolds not to exceed 30 feet "in height").  Indeed, numerous guardrail provisions in section 1926.451 use the word in connection with toeboards in this same sense.  E.g., section 1926.451(e)(10) (toeboards shall be minimum of 4 inches "in height").

[[4]] The dissent describes a hypothetical situation that bears no relation to the facts in this case, assumes that the Secretary's language and regulatory decisions were not carefully or deliberately chosen, and then concludes that the Secretary could not have intended that this hypothetical situation should be unremedied.  This analysis ignores the comprehensive nature of the Secretary's regulations.  The Secretary has promulgated a variety of regulations addressing fall hazards that protect against 100 foot falls from the edge of unguarded buildings.  Our reading of this particular standard in no way leaves employees unprotected from the hazard described in the dissent.

[[5]] The standard provides:

1926.54 Nonionizing radiation.
* * *
(d) Areas in which lasers are used shall be posted with standard laser warning placards.

[[6]] The employer has apparently abandoned its argument that the laser's low output negated any hazard.  We note in any event that the witness who testified for the employer that the laser was too weak to present a health hazard had no apparent qualifications to testify as to the potential harm a laser beam might cause.

[[7]] Section 1926.401(a)(2) states:

1926.401 Grounding and bonding.

(a) Portable and/or cord and plug-connected equipment.

(2) Portable tools and appliances protected by an approved system of double insulation, or its equivalent, need not be grounded. Where such an approved system is employed, the equipment shall be distinctively marked.