WESTERN WATERPROOFING COMPANY, INC.

OSHRC Docket No. 1087

Occupational Safety and Health Review Commission

August 14, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

Western Waterproofing Co., Inc., for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

Western Waterproofing Company, Inc., (respondent) received five citations on June 19, 1972, alleging serious and nonserious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). The Secretary withdrew three of the citations and all but one item of a fourth citation. The remaining serious citation alleges that respondent failed to comply with the standard at 29 CFR 1926.451(i)(11), for which a $750 penalty is proposed by the Secretary. The remaining nonserious citation alleges noncompliance with the standard at 29 CFR 1926.451(i)(8), for which a penalty of $225 is proposed. Respondent filed a timely notice contesting the citations and proposed penalties. Administrative Law Judge Paul E. Dixon presided at the hearing and vacated the citations and proposed penalties on the ground that the inspection of respondent's workplace was [*2] conducted unlawfully. The Secretary petitioned for review of the judge's decision. The petition was granted under the authority conferred by section 12(j) of the Act. A divided Commission upheld the judge's disposition. Western Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD P20,805 (No. 1087, 1976). The United States Court of Appeals for thie Eighth Circuit reversed the Commission and remanded the case for a decision on the merits of the citations. n1 Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977). We conclude that respondent mailed to comply with both standards and that the proposed penalties are appropriate.

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n1 The court decided only that the inspection of respondent's workplace was not conducted in violation of the Fourth Amendment of the Constitution, and that suppression of the evidence gathered during the inspection was not justified even if it was conducted in violation of sections 8(a) and 8(e) of the Act because respondent had not been prejudiced by the manner in which the inspection had been conducted. As the court noted, the Commission did not address the merits of the citations when the case initially was decided.

[*3]

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The Serious Citation n2

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n2 The standard at 29 CFR 1926.451(i)(11) provides as follows:

1926.451 Scaffolding

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(i) (Swinging scaffolds) two-point suspension

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(11) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, wth a midrail, 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.

Paragraph (a)(6) provides that,

[w]here persons are required to work or pass under the scaffold, scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2-inch mesh, or the equivalent.

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On June 5, 1972, two of respondent's employees [*4] were working from a two-point scaffold suspended between the tenth and eleventh floor of a building while waterproofing its exterior. A third employee was stationed on the building's fifth floor patio, which was directly below the scaffold, to watch the employees on the scaffold and, when necessary, to manipulate the guide ropes hanging from the scaffold to minimize swaying. The scaffold was equipped with a toeboard on the front (the side facing the building), a guardrail and midrail on the back, and number 22 gauge wire of one and one-quarter inch mesh on part of the back, through which at least one of the tools used by the employees could have fallen. The wire mesh extended between the bottom of the scaffold and the top guardrail and between stirrup assemblies n3 that were at least one foot from each end of the scaffold. Each assembly was constructed of three metal bars arranged as a triangle the base of which extended the width of the scaffold and was several inches above and parallel to a small board attached to the scaffold planking. The assemblies were mounted on narrow, three to four inch high brackets on each end of the bases of the assemblies. The scaffold was prevented [*5] from abutting the building by 14 to 18 inch deep vertical panels constructed at regular intervals along the face of the building. The space between the scaffold and the building was large enough to permit one of respondent's employees to fall from the scaffold, as evidenced by the fact that one of respondent's employees collapsed and fell from the front of the scaffold to the patio below.

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n3 Each assembly was used to support a motor providing power to lift and lower the scaffold.

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Respondent denies noncompliance with the standard, and offers the following arguments as grounds for vacating the citation. n4

(1) The accident that gave rise to the citation was caused by an employee's unpreventable failure to follow a work rule requiring employees working from scaffolds to attach safety belts to lifelines.

(2) A scaffold equipped on all sides with the protective devices specified in the standard would be so susceptible to wind that working from it would expose employees to hazards greater than those to which respondent's [*6] employees allegedly were exposed.

(3) The standard is impermissably vague and ambiguous because the phrase "open sides and ends" is not defined in the standard and cannot be understood by an employer.

(4)(a) The front of the scaffold was not open because it was guarded by the building.

(b) The ends of the scaffold were not open within the meaning of the stardard so as to require the erection of guardrails because the stirrup assemblies acted as guardrails in preventing employees from falling.

(c) The ends of the scaffold were not open within the meaning of the standard so as to require the erection of toeboards because the brackets on which the stirrup assemblies were mounted acted as toeboards in preventing tools and other objects from falling.

(d) The back of the scaffold was not open within the meaning of the standard so as to require the erection of toeboards because the wire mesh that had been erected acted as a toeboard in preventing tools and other objects from falling.

(5) Wire mesh was not required because the employee stationed on the patio below the scaffold was not required to, and did not, pass or work under it.

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n4 Although respondent does not argue the point, two of respondent's suggested findings of fact are that the erection of a guardrail and wire mesh on the front of the scaffold would have made work difficult. We note, however, that under Commission precedent, compliance with standards is not excused simply because it makes work difficult. E.g., Williams Enterprises, Inc., 78 OSAHRC 80/D12, 6 BNA OSHC 1986, 1978 CCH OSHD P23,064 (No. 76-1801, 1978).

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While the premise of the first argument may have been relevant to an allegation that safety belts were required by a standard, it does not relate to the alleged violation of 1926.451(i)(11) requiring guardrails on all open sides of a scaffold. Further, as a general rule, whether an employer is in violation of the Act does not depend on the cause of a particular accident. E.g., The Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977). Unpreventable employee misconduct becomes relevant only if it caused an alleged failure to comply with a standard. [*8] See, e.g., B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). The failure of respondent's employee to attach his safety belt to a lifeline is unrelated to respondent's alleged failure to equip a suspension scaffold as required by the standard at 29 CFR 1926.451(i)(11). Moreover, the accident that resulted, i.e., an employee falling from the scaffold, is exactly what compliance with the standard is designed to prevent. Respondent's argument must, therefore, be rejected.

Respondent rests its second argument on a "test" conducted by respondent after being cited. A scaffold equipped as the standard requires was lifted from the ground and spun repeatedly by the wind. This "test" was not, however, probative of the hazards to which an employee would be exposed while working on a fully equipped scaffold. Respondent admits that employees would not be permitted to work in winds as strong as those encountered on the day of the "test." Moreover, the standard at 29 CFR 1926.451(i)(9) requires suspension scaffolds to be lashed to a building to prevent movement such as that caused by winds. Western Waterproofing [*9] Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978). We reject respondent's second argument.

The contention that the phrase "open sides and ends" is so vague or ambiguous that it cannot be understood by an employer lacks merit, as respondent's fourth argument demonstrates. Respondent clearly understands the purposes of the standard: guardrails and toeboards are required to prevent employees and objects, respectively, from falling from a scaffold. The sides and ends of a scaffold are open if the fall hazards addressed by the standard are present. See Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977); Western Waterproofing Co., 77 OSAHRC 179/B9, 5 BNA OSHC 1897, 1977-78 CCH OSHD P22,212 (No. 13538, 1977). The standard is neither vague nor ambiguous.

The front, back, and sides of the scaffold were open partially or entirely. The possibility of falling from the unguarded front of the scaffold unfortunately was proven by an employee's five-story fall. Tools could fall from the back and sides of the scaffold because they lacked toeboards. The brackets that respondent claims guarded the scaffold's ends covered only small parts of them. The mesh in the [*10] wire screening on the back of the scaffold was too large to prevent at least one of the tools on the scaffold from falling. n5 The stirrup assemblies did, however, prevent employees from falling from the ends of the scaffold. The Secretary argues that the ends were open for the purposes of the guardrail requirement because employees could have climbed outside the assemblies. It is undisputed that the employee could have worked outside the assemblies, but the employees did not and had no reason to work there, and respondent frequently instructed the employees to remain inside the assemblies. Accordingly, we reject respondent's fourth argument, except the part concerning the allegation that guardrails should have been erected on the ends of the scaffold.

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n5 We would hold that the failure to erect a toeboard on the back of the scaffold constitutes noncompliance with the standard even if the wire mesh could have prevented cools from falling. The standard expressly requires both types of protection. We cannot challenge the wisdom of a standard. The Budd Company, 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).

[*11]

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The last argument rests on facts respondent would have the Commission find. One of respondent's supervisors (Meehan) testified that an employee was stationed on the patio for the safety of the employees on the scaffold, i.e., that he had no task other than observing the employees after the scaffold was rigged, ". . . because anything might happen." Meehan was not asked if the employee on the patio was to act to protect his fellow employees if a problem arose. The compliance officer testified that Meehan said at the closing conference that the employee was stationed directly below the base of the scaffold so that he could use the scaffold's guide ropes to prevent swaying. Respondent would have us find that the testimony of the witnesses is in direct conflict, and that Meehan's testimony is more credible. We believe, however, that the testimony of each witness describes only part of the employee's duties. An employee stationed to observe fellow employees on a scaffold five stories above him would be required to move away from the scaffold to perform his job. We find it inherently incredible, [*12] despite respondent's implicit assertion to the contrary, that the employee would have remained idle if he had observed the scaffold swing out from the building. In the absence of direct evidence to the contrary, we find that the employee on the patio would have been required to work beneath the screenless scaffold if it had begun to sway. We therefore reject respondent's final argument.

The Nonserious Citation

Respondent was cited for failure to comply with the standard at 29 CFR 1926.451(i)(8), which provides, in pertinent part, that,

[e]ach employee shall be protected by an approved safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffolds) or to securely rigged lines, which will safely suspend the employee in case of a fall.

Respondent had instructed the employees working from the scaffold to wear and attach to lifelines the safety belts that had been provided. One of respondent's supervisors (Meehan) visited the worksite daily before June 5, 1972, and observed the employees wearing properly attached belts while on the scaffold. Shortly after noon on June 5, however, one of respondent's [*13] employees, Lara, fell from the scaffold while wearing a belt that was not attached to a lifeline. Lara's fellow employee, Stokes, testified that he had never seen Lara work without attaching his belt to a lifeline until immediately before Lara fell. The evidence does not suggest any explanation for Lara's failure to attach his belt to a lifeline. Lara had a good safety record, and had not been observed working without a properly attached safety belt ouring his six years of employment with respondent.

The lifelines rigged at the worksite were opposite ends of a three-quarter inch hemp rope secured on top of the building. Stokes testified that burlap was wrapped around the rope each morning where it draped over the edge of the building to insulate against abrasion that could have caused the rope to chafe or split. The rope was tied in the middle to a loop in the end of a three-quarter inch wire cable that encircled the penthouse. The loop was secured by one Crosby cable clip. The pressure exerted by a clip distorts the shape of a cable, which tends to loosen the securement. Use of more than one clip reduces or eliminates the possibility that a securement will break. A three-quarter [*14] inch cable secured by three clips will support eighty percent of the cable's weight bearing capacity, which is several tons, but none of the witnesses were capable of testifying as to the weight bearing capacity of a three-quarter inch cable secured by one clip. Stokes slid down his lifeline to the patio after Lara fell, establishing that the cable could support approximately 200 pounds.

Respondent contends that it did not fail to comply with the standard and offers the following arguments in support of this contention.

(1) Lara's failure to secure his safety belt to a lifeline was unpreventable employee misconduct.

(2) The standard is impermissibly vague and ambiguous because the phrases "substantial members of the structure," "securely rigged lines," and "safely suspend" are not defined in the standard and cannot be understood by an employer.

(3) The cable to which the lifelines were tied was a substantial structural member of the building. n6

(4) The cable was of sufficient strength to safely suspend the employees from their lifelines, which is all that the standard requires.

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n6 This argument appears only as a suggested conclusion of law in respondent's brief. It is treated as a full argument because it bears on the interpretation of the standard, and because of the unusual posture of this case, i.e., issues for review were not clarified fully because the administrative law judge did not issue a decision on the merits of the citations.

[*15]

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The Commission has held that an employer will not be held responsible if the failure to comply with a standard is caused by the unpreventable failure of the employer's employee to follow an effectively communicated and enforced work rule. B-G Maintenance Management, Inc., supra. The evidence summarized above clearly establishes that respondent is not responsible for Lara's action in failing to tie off to the lifeline. The Secretary does not dispute this. Rather, the primary dispute between the parties focuses on the use of only one Crosby clip to secure the loop in the cable to which the lifelines were attached. This dispute can be resolved, and respondent's third and fourth arguments can be addressed, while responding to the claim that the standard is vague.

A standard is unconstitutionally vague if men of common intelligence necessarily must guess at its meaning and differ as to its application. Ginsberg v. New York, 390 U.S. 629, 643 (1968); Allis-Chalmers Corp. v. OSHRC & Secretary of Labor, 542 F.2d 27, 30 (7th Cir. 1976). The purpose of the standard is identified correctly [*16] by respondent in its fourth argument: employees falling from a scaffold are to be prevented from falling to the ground. The phrases "substantial members," "securely rigged," and "safely suspend" must be read in light of this purpose. See Combustion Engineering, Inc., 77 OSAHRC 182/A2, 5 BNA OSHC 1943, 1977-78 CCH OSHD P22,241 (No. 76-2210, 1977). A standard is not invalid merely because an employer must exercise reasoning and judgment to decide how to apply the standard in a particular situation. See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD P21,592 (No. 3735, 1977).

Certainly respondent's third argument is frivolous: a cable that only encircles a building is not a member of the structure. A structural member clearly means a part of the structure. Cf. Combustion Engineering, Inc., supra. The gravamen of the violation is that the cable to which the lifeline was attached was not securely rigged within the meaning of the standard because of the cable's tendency to become misshapen where it was secured by the single Crosby clip, thereby reducing the strength and safety of the securement. Meehan testified that he [*17] was aware of this tendency and of the need for using more than one clip. We therefore reject respondent's last two arguments, conclude that the standard is not vague, especially as applied to respondent's workplace, and find that respondent did not comply with the standard.

Penalties

In assessing penalties, the Commission must consider the size of the business of the cited employer, the gravity of the violation, the employer's good faith, and the history of previous violations. 29 U.S.C. 661(i). Respondent's business is small, employing less than 100 people. Respondent had not received any citations prior to the ones involved in this proceeding. Respondent has not, however, exhibited a sufficient good faith concern for the welfare of the employees working from and below the scaffold. Meehan admitted the guarding was not erected on the front of the scaffold because it would have reduced the employees' work area. Finally, the employees on the scaffold were likely to have suffered at least serious bodily injury if they fell from the scaffold. We find the penalties proposed by the Secretary, $750 for the serious violation and $225 for the nonserious violation, appropriate [*18] under these circumstances.

Accordingly, we hold that respondent failed to comply with the standards at 29 CFR 1926.451(i)(8) and (i)(11) and that the violations were serious and nonserious, respectively, for which we assess respective penalties of $225 and $750.