SECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING CO., Respondent.

OSHRC DOCKET NO. 89-0559

ORDER

On January 23, 1991, the Secretary filed a Notice of Withdrawal in the above-captioned case. The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and sets aside the Judge's Decision and Order affirming Item 1(a) of the citation and assessing a $200 penalty. There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.

Edwin G. Foulke, Jr.
Chairman
Velma Montoya Commissioner
Donald G. Wiseman Commissioner
Dated: February 14, 1991

RODERICK A. DeARMENT, ACTING SECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING CO., Respondent.

Docket No. 89-0559

NOTICE OF WITHDRAWAL

The Acting Secretary of Labor hereby notifies the Commission and the parties that he has withdrawn Citation No. 106462492, which is at issue in this litigation. 29 C.F.R. § 2200.102 (1990). See generally, Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985) (Secretary of Labor retains prosecutorial discretion at all stages of litigation.)

Respectfully submitted.
ROBERT P. DAVIS
Solicitor of Labor
CYNTHIA L. ATTWOOD
Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional Litigation
LAURA V. FARGAS
Attorney
U.S. Department of Labor

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of January 1991, a copy of the foregoing Notice of Withdrawal was served by certified mail, return receipt requested, upon the following counsel of record:

Robert D. Peterson
Robert D. Peterson Law Corporation
LAURA V. FARGAS Attorney

SECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING COMPANY, Respondent.

OSHRC DOCKET NO. 89-0559

APPEARANCES:

For the Complainant:
Dane C. Dauphine, Esq., Office of the Solicitor,
U. S. Department of Labor, Los Angeles, CA
For the Respondent:
Robert D. Peterson, Esq., Sunset Whitney Ranch, CA

DECISION AND ORDER

Barkley, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C., Section 651, et. seq, hereafter referred to as the Act).

Respondent Patent Scaffolding maintains its principle place of business in Carson, California where it is engaged in scaffold erection and disassembly. At all times pertinent hereto respondent maintained a worksite at 9465 Beverly Boulevard, Beverly Hills, California where it employed four employees. Respondent admits it is engaged in a business affecting commerce and is therefore subject to the Act's requirements.

On September 27, 1988, the Occupational Safety and Health Administration (OSHA) conducted an inspection of respondent's workplace (Tr. 12). As a result of that inspection, respondent was issued Serious citation 1, items 1a and 1b alleging violations of 29 CFR 1926.28(a) and 1926.451(d)(10) respectively. A penalty of $640.00 was proposed. Citation 1a was amended in the complaint to allege violation of § 1926.105(a). Respondent timely contested the violations and proposed penalties.

A hearing was held on August 15, 1989 in Los Angeles, California. At the hearing, the Secretary's counsel stated that the Secretary was alleging violations only for the exposure of one (1) of respondent's employees, Elliot (Tr. 39). Counsel further stated that the two violations were intended to be alleged in the alternative (Tr. 39-40). The parties have submitted briefs and the matter is now ready for decision.

FACTS

The citation in this case involves the disassembly of tubular welded scaffolding, which had been erected across one end of a multi-story building. The scaffolding was approximately 3 feet wide and had been placed approximately 18 to 24 inches from the building (Tr. 99). It had "lifts" or working platforms at six foot intervals rising to a height of approximately 110 feet (Tr. 24-25). Employees gained access to the various lifts by way of a stairway which was part of and attached to the scaffolding but was on the exterior side of the lifts opposite the building. The stairway protruded approximately six feet beyond the lifts (Tr. 114-115).

On the day of the inspection, four of respondent's employees were dismantling the scaffold (Tr. 12-13, 25; Ex. C-1, C-2). The foreman, Mr. Zamora, was working on the top lift, taking apart the various pieces of the scaffold. Zamora passed the pieces down one lift to a Mr. Elliot (Tr. 14-20, 176-177). The pieces included planks and parts of the scaffold in sizes up to 6'6" by 5' (Tr. 185-186). Zamora's duties required that he travel the length of the scaffold (Tr. 18-19).
Elliot's work platform, which had been constructed on the lift below, consisted of planks that had been placed across the horizontal members of the stairwell (Tr. 26, 32, 177). The work platform was approximately 6' by 7' (Tr. 26, 32, 117, 177), and was guarded by a guardrail on one side, a top rail on the front but no guarding on the other side; the backside nearest the scaffold was guarded by a cross brace (Tr. 29-31; Ex. C-3, C-4). A pully was attached to a structural member which protruded approximately one foot past Elliot's work platform (Tr. 31, 117; Ex. C-3).

Upon receiving scaffolding parts and planks from Zamora, Elliot would tie the material to a sling attached to the rope and pulley (Tr. 14-20, 117, 177) whereupon the material was then lowered to the ground (Tr. 14- 20, 177).

Elliot was not provided with a safety belt, safety nets or any other fall protection, other than the partial guardrails noted above (Tr. 33, 119). OSHA's Compliance Officer (CO) testified that Elliot could have fallen from the unguarded or partially guarded portion of the platform and sustained serious injury, including death (Tr. 32).

On the day of the inspection, the CO was told by the foreman, Zamora, that safety belts were not being used because of an exemption for dismantling (Tr. 33), but that Elliot could be tied off (Tr. 34). In a subsequent conversation with respondent's superintendent, Balmer, the CO was again told that Elliot could be tied off in the future (Tr. 35).

However, at the hearing, Mr. Balmer testified that safety belts could not have been used on the dismantling job, because the 6' lanyard prescribed by OSHA was too short to allow movement to all portions of the platform, and because a lanyard hooked to the scaffolding frame above a horizontal member would be waist high at most and would present a tripping hazard (Tr. 125, 171-172). He had not seen safety belts and lines used in the industry during scaffold dismantling (Tr. 173). Mr. Hamilton stated that, while he had seen a stationary safety line used with "climbing" scaffolds, he had never known belts and lanyards to be used with scaffolds of the sort involved here (Tr. 184-187).

BaImer also testified that the use of safety nets would "impede" the dismantling process, preventing the lowering of materials through the net (Tr. 164-165). He stated that in his five years in the industry, he never observed safety nets used during scaffold dismantling (Tr. 164). Respondent's Branch Manager, Mr. Charles W. Hamilton, with 30 years in the scaffolding industry, similarly testified (Tr. 178-179).

The CO made no comment on the feasibility of safety nets, but testified that a safety belt and lanyard could have been attached to the scaffold frame or to a stationary safety line anchored to the roof of the building and run to the ground between the scaffold and the building (Tr. 92-93, 96-97). Alternatively, in order to facilitate work on the outer edge, a line from the roof could be extended out through a boom and then dropped down the front of the scaffold (Tr. 100).

Mr. Salvatore Jimenez, a safety supervisor with over 12 years experience with OSHA and 3,000 inspections to his credit, testified for the Secretary (Tr. 122-123). Mr. Jimenez had seen safety nets used during scaffold dismantling, but did not specify how the problem of lowering material to the ground was dealt with (Tr. 136). Rather, he recommended the use of an independent safety line extending down the outside of the scaffolding from a roof mounted outrigger beam (Tr. 124). Mr. Jimenez pointed out that tying the lanyard to the safety line above the work level would avoid the tripping hazard. He testified that he had assisted employers in the scaffold industry in designing configurations for safety lines and had seen them used successfully (Tr. 129).

Finally, respondent introduced into evidence a 1986 decision of the California Occupational Safety and Health Appeals Board. Considering a similar case involving this respondent, the Board refused to construe California's general fall protection provision to cover erection and dismantling of scaffolding where standards specifically applicable to scaffolding failed to provide such protection (Tr. 171; Ex. R-5).

Alleged Violation of § 1926.105(a)
Section 1926.105 states:
Safety nets. (a) 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.

The Citation alleges:
(a) 9465 Wilshire Blvd., Bank of America Building-Employee handling dismantled scaffolding material on work platform without fall protection; exposing employee to fall hazards of approximately one-hundred-and-ten (110) feet. Personal protective equipment required-safety belt and lanyard.

ISSUES

1. Whether the Complaint was properly amended to allege violation of § 1926.105(a);

2. Whether the Secretary has established, by a preponderance of the evidence a violation of § 1926.105(a);
a. Whether, in order to prove a violation of § 1926.105(a), requiring safety nets, the Secretary must first show that none of the alternative fall protections listed were practical;

3. Whether respondent has proved the affirmative defense of unfeasibility or impossibility;

4. Whether respondent may rely on a decision by the California Occupational Safety and Health Appeals Board to excuse its compliance with federal regulations.

CONCLUSIONS

1. Respondent's challenge to the propriety of the Secretary's amendment of the Complaint is without merit. Section 2200.35(f) of the Commission's Rules of Procedure allows the Secretary to amend the citation "once as a matter of course in the complaint before an answer is served." Complainant's amendment was properly made.

2. The Commission has held that a prima facie violation of § 1926.105(a) is made out when it is proved that employees are exposed to fall hazards in excess of 25 feet and none of the safety devices listed in the standard is used. National Industrial Constructors, Inc., 9 BHA OSHC 1871 (No. 76-891 and 76-1535, 1981). The record adequately demonstrates that respondent's employee, Elliot, was exposed to a fall hazard of approximately 110 feet, and none of the safety devices listed in the standard were used. The Secretary has established her prima facie case and, at this point, need make no additional showing regarding alternative methods.[[1]]

3. In order to establish a defense of impossibility or unfeasibility, an employer must demonstrate, by a preponderance of the evidence, that compliance with a standard's literal requirements is not possible or would preclude performance of the employer's work. If proven, the burden shifts to the Secretary to show that alternative means of protection were available to the employer. Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1953 (No. 79-2553, 1986), rev'd, 843 F.2d 1135 (8th Cir. 1988).

The testimony of respondent's witnesses to the effect that the use of safety nets during disassembly of scaffolding would prevent the lowering of materials to the ground was uncontradicted. However, this judge finds that respondent could have employed a safety harness and lanyard to protect Mr. Elliot. In so finding, I place particular reliance on two factors. First, I find the pre-litigation statements by Zamora and Balmer that Elliot could be tied off to be convincing. Second, although the use of a lanyard would somewhat restrict movement, Elliot's work platform was a confined area which in itself restricted movement. A minimum of mobility is required for Elliot's tasks and the use of a safety belt and lanyard is both feasible and practicable. The tripping hazard noted by respondent is easily eliminated by tying off above the working level.

4. Respondent may not rely on the existence of a California Appeals Board interpretation of State regulations to excuse it from compliance with federal law. It is true that under 29 C.F.R. 1954.3(d)(1)(i), while concurrent jurisdiction exists, "Federal enforcement proceedings will not be initiated where an employer is in compliance with a State standard which has been found to be at least as effective as the comparable Federal standard..." However, an official interpretation which renders an approved standard less effective than its Federal counterpart will be afforded no deference.
Moreover, employers are presumed to be familiar with standards that affect their business; ignorance or misinterpretation of the standards does not excuse noncompliance. Hallmark Excavating, Inc., 6 BNA OSHC 1898 (No. 77-3306, 1978).

Classification

The Secretary cited this violation as serious. Section 17(k) of the Act provides that a violation shall be deemed "serious" if there is a "substantial probability that death or serious physical harm" could result from a condition which exists in the workplace unless the employer could not, with the exercise of reasonable diligence, know of the violation. There is no question that a 110 foot fall would result in probable death. Likewise, there is no question that respondent had the requisite knowledge required for a serious violation by virtue of Zamora's knowledge that Elliot was not provided fall protection.

At hearing, however, respondent introduced evidence of the existence of a proposed rule which would excuse employers from providing fall protection for scaffolding workers involved in dismantling (Ex. R-2). Respondent argues, and the Secretary's Compliance officer agreed, that the Secretary's internal policy is to cite as "de minimus" current violations where the employer is in compliance with a proposed rule (Tr. 110; Ex. R-4). Respondent contends that the above violation should, therefore, be affirmed as a ''de minimus" violation.

The Act provides for the classification of a violation as de minimus where said violation has "no direct or immediate relationship to safety or health." 29 U.S.C. 658(a). It is clear that the failure to provide fall protection for workers 110 feet above the ground has a direct relationship to employee safety. The cited violation cannot, therefore, be classified as de minimus. The Secretary's internal policy cannot change this conclusion since such policies "do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals." FMC Corp., 5 BNA OSHC 1707, 1710 (13155, 1977); See also, GAF Corp., 6 BNA OSHC 1206 (No. 77-616, 1977).

The violation was properly classified as serious.

PENALTY

No evidence was adduced at hearing regarding the size of the employer or any history of safety violations. Nor was any evidence introduced reflecting adversely on respondent's good faith. Rather, it appears that respondent relied, albeit erroneously, on official interpretations of parallel California regulations. However, the gravity of the violation is high. Taking into consideration the relevant factors, a penalty of $200.00 is found to be appropriate, and will be assessed.

Alleged Violation of § 1926.451(d)(10)

The cited standard applies to tubular welded frame scaffolds and states:

(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.

Complainant's counsel stated at the hearing that the two alleged violations were intended to be alleged in the alternative. Counsel further stated that the two alleged violations resulted from the same exposure (Elliot's) and that either abatement (safety belts or guardrails) would eliminate the hazard (Tr. 39-40). Having held that safety belts are required as proposed by complainant's alternative theory, it is unnecessary to consider this alleged violation, which is duplicative if upheld. Accordingly, serious citation 1, item 1b will be vacated.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied.

Order

1. Serious citation 1, item 1a alleging violation of § 1926.103(a) is AFFIRMED and a penalty of $200.00 is ASSESSED.
2. Serious citation 1, item 1b alleging violation of § 1926.451(d)(10) is VACATED.

James H. Barkley
Judge, OSHRC
Dated: February 8, 1990

FOOTNOTES:
[[1]] A recent D.C. Circuit case, Century Steel Erectors, Inc. v. Elizabeth Dole, OSHRC Docket no. 87-1348, slip opinion (D.C. Cir. October 8, 1989), places the burden on the Secretary to show that alternative methods are practical where safety nets are shown to be infeasible Century Steel Erectors has not been adopted by the Commission and thus is not binding in this matter. In any event, this judge finds it would be inequitable to apply retroactively a ruling affecting burdens of proof.