SECRETARY OF LABOR,

Complainant ,

v.

ATLAS INDUSTRIAL PAINTERS,

Respondent.

OSHRC Docket No. 87-0619

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.
BY THE COMMISSION:

Atlas Industrial Painters, Inc. ("Atlas") is a painting contractor in Birmingham, Alabama.  In early March of 1987, Atlas was painting the cement wall on the side of a bridge and the ironwork underneath the bridge on a Birmigham worksite, when two Occupational Safety and Health Administration ("OSHA") compliance officers, Terry Bailey and William Powers, conducted an inspection of the worksite.  The compliance officers observed three Atlas employees painting the bridge from two scaffolds on opposite sides of the bridge. [[1/]]   On each scaffold, the platform on which the painters stood was approximately two feet wide and three feet long, and was suspended over the side of the bridge by vertical steel members equipped with casters on the top.  Because of the caster, the entire scaffold could be rolled horizontally along the edge of the guardrail. Each scaffold was lowered down the side of the bridge to a position where the bottom of the work platform was about ten to eleven feet below the surface of the bridge. The scaffolding platforms hung approximately thirty feet above the ground. At the time of the inspection, neither lifelines nor safety nets were in place to provide fall protection. One employee was wearing a safety belt, but it was not attached to a lifeline. Each scaffold had a guardrail on the back of the platform.

The compliance officers photographed an Atlas employee as he climbed up one of the scaffold of the scaffolds onto the bridge. Although each buggy scaffold had a ladder attached to it, there was a gap of 72 inches from the bottom rung of the ladder to the platform. This condition required the employee leaving the scaffolding to step up approximately 42 inches from the floor of the platform to the rear guardrail of the scaffolding and then to step up another 30 inches from the rear guardrail to the bottom rung of the ladder. The president of Atlas, McRay Gingo, had provided ladder extensions at the site that were designated to be attached to the bottom of the existing ladders, but they were not in use during the inspection.[[2/]]

The ladder extensions, along with safety belts and lifelines, were in one of the trucks parked at the worksite.

Based on the inspection, the Secretary issued to Atlas a single citation divided into parts 1a and 1b. Item 1a, as amended, alleged a willful violation of 29 C.F.R. 1926.28(a), for failure to require employees working on the platforms to wear personal protective equipment.[[3/]] Item 1b alleged a willful violation of 29 C.F.R. 1926.451(a)(13), for failure to provide an adequate access ladder for employees climbing on or off the platforms.[[4/]] The Secretary proposed a total penalty of $6,400 for the two-item citation. Atlas contested the citation, and a hearing was conducted before Review Commission Administrative Law Judge Edwin G. Salyers. At the hearing and in its trial brief, Atlas objected to the willful classification of the violations and to the amount of the penalty. The judge held that Atlas willfully violated both standards, finding that Atlas had "manifested plain indifference to employee safety" because it "condon[ed] its employees['] flagrant disregard of the safety standards" by failing to enforce its safety policy requiring the employees' use of the safety belts, lifelines, and ladder extensions. The judge found the proposed $6,400 penalty to be appropriate. On review, Atlas contests the willful designation of the citation, as well as the $6,400 penalty.

I. Citation Item 1a

It is undisputed that three of Atlas' employees, who were exposed to a 30-foot fall hazard from the unguarded platforms, were not wearing safety belts attached to lifelines, in violation of 29 C.F.R. 1926.28(a). At issue is whether Atlas' failure to comply with the cited standard was a willful violation of the Act. In order to establish a willful violation of the Act, the Secretary must prove that a violation was "committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA OSHC 1017, 1019, 1986-87 CCH OSHD (P) 27,786, p. 36,341 (No. 83-1189, 1987).

Section 1926.28(a), by its express terms, makes the employer "responsible for requiring the wearing of appropriate personal protective equipment." Bratton Corp., 14 BNA OSHC 1893, 1897, 1990 CCH OSHD (P) 29,152, p. 38,993 (No. 83-132, 1990). Atlas' president and two other Atlas employees testified regarding the company's use of safety belts and lifelines.

McRay Gingo, Atlas' president, testified that "practically all the employees" were told what Atlas' safety regulations are, were issued safety belts and lifelines, and were told that they are required to "be tied off at all times when working over six [feet] off the ground." However, Gingo testified that if Atlas enforced its safety policy, the employees would leave, and that he has a problem finding experienced painters.

Charles Hyde, Atlas' supervisor at the worksite, testified that a workman found not using a safety belt would be suspended for three days on the first occurrence and fired on the second occurrence. He stated that it was his regular practice, as well as Atlas' policy, to require employees to use their safety belts and lifelines. Hyde testified that he occasionally had difficulty in getting employees to wear the safety belts and attach them to the safety line, and that when he found an employee whose safety belt was not fastened to the safety line, he would call the employee's "attention to it and make them fasten it and tell them they'd better keep it fastened." While Hyde testified that he had fired one or two men in the past for wearing a safety belt that was not tied off, Hyde stated that he would only say "I don't really need you anymore." Thus, the evidence suggests that he did not communicate to the employees the actual reason he fired them. He also testified that after the inspection, he discovered an employee without his safety belt secured but did not suspend him because "he was my main man [that had] been with me a long time."

Ed Latham, an employee at Atlas, stated that if an employee is caught not wearing his safety belt, "it's supposed to be three days off without pay." When Latham was asked if he been suspended after Gingo caught him working without a lifeline, Latham responded, "Well, he got onto me. he just needs me so bad he can't afford to fire me."

In affirming a willful violation, Judge Salyers observed that "[i]n the present case, respondent has manifested plain indifference to employee safety" by "condoning its employees' flagrant disregard of the safety standards." The judge noted that "[d]espite a previous citation for similar violations issued in 1982, respondent did not have an enforced safety policy." Judge Salyers found that McRay Gingo, the president of Atlas, knew that his employees were not complying with the safety standards. He further found that although Atlas instituted a safety program that provided the employees with ladder extensions, safety belts and lifelines, and encouraged the employees to use, them, the message "tacitly communicated to the employees was that any violation of the safety standards would be overlooked in the interests of keeping men on the job."

After careful consideration of the record as a whole, we agree with the judge. OSHA cited Atlas in 1981 for failing to comply with the same standard cited here after an employee was killed in a fall. Despite this awareness of section 1926.28(a) and the potentially dire consequences of failing to comply with it, Atlas condoned its employees' disregard for the standard's requirements and did not enforce its own safety program with respect to the use of safety belts and lifelines. See Constructora Maza, Inc., 6 BNA OSHDC 1309, 1977-78 CCH OSHD (P) 22,487 (Nos. 13680, 14509, 1978).[[5/]] This failure to enforce the known requirements of section 1926.28(a) is properly characterized as "plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA OSHC at 1019, 1986-87 CCH OSHD at p. 36,341. We therefore affirm the violation as willful.

II. Citation Item 1b

Atlas was additionally cited for violating 29 C.F.R. 1926.451(a)(13) because of "[t]he inadequacy and the manner in which employees gained access to an egress from these buggy-type scaffolds." At the worksite, Atlas made available ladder extensions that were designed to be attached to the bottom of the existing ladders on the scaffolds. However, these extensions were not in use at the time of the inspection. On review, Atlas does not dispute that it failed to comply with section 1926.451(a)(13) by not requiring employees to use the ladder extensions provided at the site. It does contend that the judge erred in characterizing the violation as willful. We agree with Atlas, and conclude that the facts do not support a willful characterization of this violation.

It is undisputed that the ladder extensions were not attached to the ladders on the day of the inspection. However, beyond the bare facts of the previous violation and Atlas' president having constructed ladder extensions after that violation, there are insufficient facts in the record upon which to base a willful characterization. The only other pertinent evidence is the testimony of Atlas' Supervisor Hyde that he had instructed the employees to attach the ladder extensions on the morning of the inspection. Gingo, Atlas' president, testified that the ladder extensions were in place on the previous day. There is no direct evidence that any Atlas supervisor had actual knowledge that the ladder extensions were not in place at the time of the cited violation.

Moreover, the law interpreting section 1926.451(a)(13) would make it difficult for us to characterize this violation as willful. The Commission has interpreted section 1926.451(a)(13)'s requirement that "[a]n access ladder or equivalent safe access shall be provided" (emphasis added), to mean that "an employer must not only provide but also ensure the use of an 'access to scaffolding." Borton, Inc., 10 BNA OSHC 1462, 1465, 1982 CCH OSHD (p) 25,983, p. 32,599 (No. 77-2115, 1981). However, that decision was subsequently reversed by the United States Court of Appeals for the Tenth Circuit, which held that "the term 'provide' is not ambiguous" and that all that is required by the standard is that an access ladder be provided. Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir. 1984). Since Atlas was in compliance with the Tenth Circuit's interpretation of the standard, its failure to comply with the Commission's disputed interpretation does not suggest either intentional disregard for the requirements of the Act or plain indifference to employee safety. Accordingly, we conclude that the Secretary did not establish that Atlas' failure to comply section 1926.451(a)(13) was willful.

Where the Secretary alleges that a violation is willful but fails to prove willfulness, an other- than-serious violation may be affirmed. A serious violation will not be found unless the parties have expressly or impliedly consented to try the issue of whether the violation was serious. Crawford Construction Co., 10 BNA OSHC 1552, 1526, 1982 CCH OSHD (P) 25,984, p. 32,607 (No. 79-928), rev'd on another grounds, 718 F.2d 1098 (6th Cir. 1983). Here, we hold that the violation cannot be classified as serious because there was no allegation by the Secretary that the violation was serious and because the issue was not tried by the parties. Keco Industries, Inc., 13 BNA OSHC 1161, 1170, 1986-87 CCH OSHD

III. Penalty

In his decision, the judge assessed the $6,400 penalty proposed by the Secretary, nothing that Atlas' "argument that the penalty assessed by the Secretary is excessive is without merit," because Compliance Officer Bailey "set out in detail how the penalty was calculated in accordance with the OSHA Field Operations Manual."[[6/]] In ruling on Atlas' contention that the Secretary unfairly determined that Atlas merited a zero factor for good faith, the judge relied on language in Mel Jarvis Construction Co., Inc., 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981). In Mel Jarvis, the Commission held that "[t]he test of an employer's good faith, for purposes of determining willfulness, is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances." The judge found that the $6,400 penalty was appropriate because "[i]t was not reasonable for respondent to ignore OSHA safety standards out of fear of losing employees who refused to exercise safety precautions while working." Although we affirm the section 1926.451(a)(13) item as other-than-serious rather than willful, the high gravity of the violations, Atlas' previous history of violations and its lack of good faith provide no basis for reducing the combined penalty of $6,400 assessed by the judge.

IV. Order

Accordingly, we find that Atlas committed a willful violation of section 1926.28(a) and an other-than- serious violation of section 1926.451(a)(13). We assess a penalty of $6,400.

 

Edwin G.Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: August 9, 1991


SECRETARY OF LABOR,

Complainant ,

v.

ATLAS INDUSTRIAL PAINTERS,

Respondent.

OSHRC Docket No. 87-0619

APPEARANCES:

Cynthia Welch Brown, Esquire, Office of the Solicitor, U.S.
Department of Labor, Birmingham, Alabama, on behalf of c
omplainant

Thomas E. Reynolds, Esquire, Birmingham, Alabama, on behalf of
respondent

DECISION AND ORDER

SALYERS, Judge: Respondent, Atlas Industrial Painters, Inc., is a painting contractor operating out of Birmingham, Alabama. In early March of 1937 respondent was engaged as a subcontractor on a worksite located on the Red Mountain Expressway in Birmingham. At the time in question, respondent was painting the cement on a bridge expansion and the ironwork that was located underneath the bridge (Tr. 10).

On March 3, 1987, OSHA Safety Compliance Officers Terry Bailey and William Powers arrived at the worksite to conduct an inspection[[1/]] (Tr. 9-10). In the course of their inspection, the compliance officers observed three Atlas employees working off of two buggy scaffolds (Tr. 33). A buggy scaffold is one that hangs over a guardrail on a bridge, enabling workers to gain access to the lower portion of the bridge (Tr. 13). The scaffold platforms in question were approximately two feet wide and three feet long and were suspended by steel members that hooked onto the guardrail. The scaffold was on casters which allowed the scaffold to be rolled along the guardrail. The scaffold platform hung about 10 feet below the guardrail, approximately 30 feet above the ground (Tr. 13, 17).

In order to gain access to or egress from the scaffold, respondent's employees had to climb a ladder attached to the scaffold. The bottom rung of the ladder was 72 inches from the platform. The compliance officers observed respondent's employees climbing over the guardrail to egress from the scaffold (Tr. 16; Ex. C-1 thru C-4).

None of respondent's employees who were observed working off of the scaffold was using any form of fall protection (Tr. 19). One of the employees was observed wearing a safety belt, but it was not attached to a lifeline, or to anything else (Tr. 19). No lifelines were present, and no safety nets were rigged (Tr. 19). The employees working off the scaffolds were thus exposed to a 30-foot fall, with the probable result of death or serious physical injury (Tr. 23).

Respondent had been previously cited for violation of fall protection standards in January of 1982 (Tr. 36). That citation was issued pursuant to an investigation conducted by Compliance Officer William Powers in December of 1981 following an employee fatality (Tr. 53, 55). Powers testified that during the follow-up inspection for the 1981 fatality, he discussed abatement methods at length with McRay Gingo, respondent's president (Tr. 54). After the 1981 inspection, platforms (Tr. 55, Ex. C-7).

Undisputed testimony from several witnesses established that the ladder extensions, safety belts, and lifelines were in one of the trucks parked at the worksite, and none of them was in use (Tr. 35, 45, 76, 94, 108). Charles Hyde, respondent's supervisor at the worksite, testified that it was his regular practice to warn employees to use their safety belts and lifelines (Tr. 81). Hyde also stated that he gave each new employee a safety talk upon hiring (Tr. 98).

There was also testimony from respondent's own witnesses that any safety rules respondent may have were not really enforced. Hyde testified that he had caught one of respondent's employees without his safety belt since the most recent inspection but that Hyde did not suspend him because "he was my main man that'd been with me a long time" (Tr. 97). Gingo stated that there was a big turnover in the construction industry and that it was difficult to keep people (Tr. 120). One of respondent's employees, Ed Latham, stated that if an employee is caught not wearing his safety belt, "it's supposed to be three days off without pay" (Emphasis added) (Tr. 108). When Latham was asked if he had been suspended after Gingo caught him working without a lifeline, Latham responded, "Well, he got onto me. He just needs me so bad he can't afford to fire me" (Tr. 111).

Respondent was issued a citation on March 9, 1987, alleging a willful violation of 29 C.F.R. 1926.105(a).[[2/]] At hearing the Secretary moved to amend that standard to 29 C.F.R. 1926.28(a), which provides:

(a)The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

The evidence adduced at the hearing indicates that the use of safety belts and lifelines is a more feasible means of providing fall protection than the use of safety nets. Therefore, in accordance with Federal Rule of Civil Procedure 15(b), the Secretary's motion is granted.

Respondent was also charged with a willful violation of 29 C.F.R. 1926.451(a)(13), which provides: "An access ladder or equivalent safe access shall be provided." Even though respondent had acquired appropriate ladders for use by its employees following the 1981 inspection, the undisputed evidence discloses these ladders were not in use at the time of the current inspection.

OSHA's proposed penalty for the alleged willful violations is $6,400. Respondent objects to the "willful" classification and to the amount of the penalty.

"A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A.C. Dellovade, Inc.,        OSAHRC, ______13 BNA OSHC 1017, 1987 CCH OSHD (p) 27,786, p. 36,341 (No. 83-1189, 1987). In the present case, respondent has manifested plain indifference to employee safety.

Despite a previous citation issued in 1982 for similar violations, respondent did not have an enforced safety policy. Compliance Officer Powers had spoken with Gingo following the 1982 citation and had discussed methods of abatement with him. Gingo was well aware of the requirements of the standard. He did not require his employees to comply with the standards because he was afraid that such enforcement would cause the employees to quit. The employees knew this and violated the standards with impunity.

Gingo knew that his employees were not complying with the safety standards. Respondent ostensibly instituted a safety program providing its employees with ladder extensions and safety belts and lifelines and encouraging the employees to use them. But the message that was tacitly communicated to the employees was that any violation of the safety standards would be overlooked in the interests of keeping men on the job. By condoning its employees flagrant disregard of the safety standards, respondent committed a willful violation of 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.451(a)(13).

Respondent's argument that the penalty assessed by the Secretary is excessive is without merit. Compliance Officer Bailey set out in detail how the penalty was calculated in accordance with the OSHA Field Operations Manual (Tr. 38-40).

Respondent contends that the Secretary unfairly determined that respondent merited a zero factor for good faith (Tr. 40). "The test of an employer's good faith, for purposes of determining willfulness, is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances." Mel Jarvis Construction Co., Inc., 81 OSAHRC 81/B13, 10 BNA OSHC 1052, 1053, 1981 CCH OSHD (p) 25,713 (No. 77-2100, 1981). It was not reasonable for respondent to ignore OSHA safety standards out of fear of losing employees who refused to exercise safety precautions while working. The penalty of $6,400 is appropriate.

FINDINGS OF FACT

1. Atlas Industrial Painters, Inc. ("Atlas") is a painting contractor operating in and around Birmingham, Alabama.

2. On March 4, 1987, OSHA Compliance Officers Terry Bailey and William Powers commenced an inspection on a worksite located on the Red Mountain Expressway where Atlas was engaged as a subcontractor. Atlas was painting the cement on a bridge expansion and on the ironwork located beneath the bridge.

3. The compliance officers observed three of Atlas' employees working off of two buggy scaffolds. The buggy scaffold were suspended approximately 10 feet below the bridge guardrail and approximately 30 feet above the ground. The scaffolds were equipped with ladders to provide the employees with access to and from the scaffold. The bottom rung of the ladder was 72 inches from the scaffold platform.

4. Safety belts, lifelines, and ladder extensions for the scaffold ladders were all kept in a truck owned by Atlas and parked at the worksite. None of these items was being used by Atlas' employees at the time of the inspection.

5. Atlas had been previously cited in 1982 for violation of fall protection standards following an employee fatality. Compliance Officer Powers had conducted that inspection and had discussed abatement methods with Atlas' president, McRay Gingo.

6. Atlas provided its employees with safety belts, lifelines, and ladder extensions and told them to use the items. The employees were not, however, disciplined or penalized when they ignored this instruction.

CONCLUSIONS OF LAW

1. Atlas, at all times material to this proceeding, was engaged in a business affecting interstate commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 ("Act").

2. Respondent, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. Atlas was in willful violation of 29 C.F.R. 1926.28(a) for failing to require its employees to wear safety belts and lifelines.

4. Atlas was in willful violation of 29 C.F.R. 1926.451(a)(13) for failing to provide and require the use of a safe access ladder on its buggy scaffolds.

ORDER

Based upon the findings of fact and conclusions of law, it is
ORDERED:

Items 1a and 1b of the willful citation issued to Atlas on March 9, 1987, is affirmed and a penalty of $6,400 is assessed.

EDW'N G. SAILYIERS
Judge

Date: January 13, 1988

 


FOOTNOTES:

[[1/]]A buddy scaffold, alson known as a rail scaffold, is a scaffold that attaches to a bridge's guardrail and has a platform that hangs down below the bridge, enabling workers to gain access to the lower portion of the bridge.

[[2/]]Several years prior to this inspection, on December 23, 1981, Atlas had been issued a citation alleging a serious violation of 29 C.F.R. 1926.28(a), for its failure to provide lifelines to employees working on a scaffold, and an other-than- serious violation of 29 C.F.R. 1926.451(a)(13), for the company's failure to provide an access ladder to the buggy scaffold platform, "exposing employee(s) to possible fall hazard." That case involved a fatal accident and was investigated by William Powers, the compliance officer who assisted in conducting the inspection in the present case. After the 1981 inspection, Gingo devised ladder extensions to provide access to the scaffold platforms.
Earlier in March 1972 and then again in May 1972, OSHA cited a firm doing business as Paintings Unlimited for hazards related to falls from scaffolding and falls resulting from inadequate access to scaffolding ladders. McRay Gingo was the general manager of Paintings Unlimited, which later became Atlas Industrial Painters.

[[3/]]The Standard provides:

1926.28 Personal protective equipment.

(a)The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for employees.

At the hearing, the Secretary made a motion to amend item 1a of the citation from 29 C.F.R. 1926.105(a) to 29 C.F.R. 1926.28(a). Atlas contested the motion to amend. The judge reserved ruling on the amendment until his decision, where he granted the motion. On review, Atlas did not contest the judge's ruling.

[[4/]]The standard provides:

1926.451 Scaffolding

(a) General Requirements.

(13) An access ladder or equivalent safe access shall be provided.

[[5/]]In Constructora Maza, the employer was issued a citation for a willful violation of 29 C.F.R. 1926.28(a), in which it was alleged that the company's employees failed to wear safety belts while exposed to a fall of 138 feet. In affirming the allegation that the employer had a company rule requiring the employees' use of safety belts, no disciplinary action was taken against the employees, despite their repeated failure to wear safety belts.

[[6/]] Compliance Office Bailey testified that an adjustment for good faith was not given because the OSHA Field Operations Manual permits "no adjustment for good faith where a willful, high-gravity, serious violation occurs." No adjustment for history of previous violations was given because "the company has a history of serious violations of the standard."

 

[[1/]]
The inspection of the entire worksite lasted three days (Tr. 11). After the first day, it was determined that only one compliance officer was needed to complete the inspection, and Terry Bailey continued on the following two days alone (Tr. 52). All of the events at issue in the present case occurred on the first day of the inspection, March 3, 1987 (Tr. 43).

[[2/]]Section 1926.105(a) provides:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.