SOUTHWESTERN ACOUSTICS & SPECIALTY, INC.
OSHRC Docket No. 12174
Occupational Safety and Health Review Commission
February 25, 1977
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
Vernon Newell, Southwestern Acoustics & Specialty, Inc.
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On October 22, 1975, the Secretary of Labor's petition for discretionary review of a decision by Administrative Law Judge William J. Risteau, issued September 22, 1975, was granted pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (hereinafter "the Act"). The principal issues raised by the petition include:
(1) Whether the Administrative Law Judge erred in affirming citation No. 2 as a non-serious violation?
(2) Whether the Administrative Law Judge erred in vacating citation No. 4 which alleged a repeated violation of the Act for non-compliance with the standard at 29 CFR § 1926.401(j)(1)?
We answer both questions in the affirmative.
Respondent's business is the installation of acoustical and drywall materials in commercial buildings. At the time of inspection, respondent's employees were performing ceiling and drywall work on a school auditorium under construction.
Citation No. [*2] 2 alleged that respondent had violated section 5(a)(2) of the Act by failing to comply with 29 CFR § 1926.451(i)(8); n1 the violation was also termed "serious" within the meaning of section 17(k) of the Act. The Judge held that a violation was proved, but also held that it was not "serious." We disagree with the Judge's latter holding.
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n1 Section 1926.451(i)(8) reads as follows:
§ 1926.451 Scaffolding.
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(i) (Swinging scaffolds) two-point suspension.
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(8) On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each 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 scaffold), or to securely rigged lines, which will safely suspend the employee in case of a fall. In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be appropriately changed as the work progresses.
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The cited standard deals with two-point suspension scaffolds, sometimes called "swinging scaffolds." In pertinent part, it requires that each employee working on such scaffolds be protected by an approved safety belt attached to a lifeline. Respondent first argues that the standard is not applicable because its scaffold could not "swing" and thus was not a "swinging scaffold." The argument lacks merit. Section 1926.452(b)(34) defines "swinging" or two-point suspension scaffolds without reference to their propensity to "swing":
§ 1926.452 Definitions applicable to this subpart.
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(b) "Scaffolding" --
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(34) "Two-point suspension scaffold (swinging scaffold)" -- A scaffold, the platform of which is supported by hangers (stirrups) at two points, suspended from overhead supports so as to permit the raising or lowering of the platform to the desired working position by tackle or hoisting machines.
In addition, the heading of paragraph (i) of section 1926.451 indicates that the term "swinging scaffold" is a commonplace description of a two-point suspension scaffold. We also consider it [*4] significant that section 1926.451(i)(9) expressly requires that "[t]wo-point suspension scaffolds shall be securely lashed . . . to prevent them from swaying." If respondent's argument were adopted, it would lead to the absurd result that compliance with subparagraph (i)(9) would render superfluous the remainder of section 1926.451(i). We therefore consider it irrelevant that respondent's scaffold could not swing. The scaffold at issue falls well within the regulatory definition and that is sufficient.
On the merits, we find the respondent violated section 5(a)(2). The evidence shows that employees had recently used the scaffold without safety belts. Moreover, a photograph taken during the inspection shows respondent's employees working on the scaffold about twenty-five feet off the ground not protected by safety belts. n2
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n2 Respondent contends that during the inspection the compliance officer requested that respondent raise the scaffold so that photographs of the scaffold in use by employees could be taken. The compliance officer denied that this occurred. He testified that he saw two of respondent's employees raising the scaffold and that he had been told that they then performed work from it. Because the compliance officer was not sure if safety belts were required on such scaffolds or not, respondent was not informed of the unlawfulness of its procedures until after the inspection, when the compliance officer consulted with his superior. The Administrative Law Judge's evaluation of the testimony of the witnesses led him to find only that the compliance officer "did not interfere when respondent's employees climbed onto the scaffold. . . ." We accept this finding. Apparently, respondent, in good faith, simply mistook the compliance officer's failure to express disapproval of respondent's work practices and his desire to photograph the scaffold as a request to raise the scaffold. We therefore have no occasion to consider what legal consequences, if any, would ensue if it were found that the conditions depicted by the compliance officer's photograph were staged and did not accurately represent respondent's work practices.
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We find that respondent's violation was "serious" within the meaning of section 17(k). A fall from a height of twenty-five feet would have obviously carried with it a substantial probability of death or serious physical harm (see Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, BNA 2 OSHC 1554, CCH 1974-75 OSHD para. 19,252 (No. 1399, 1975)), and respondent, through its supervisory employees, knew that its employees on these and other occasions do not wear safety belts. We reject Judge Risteau's holding that the violation was not "serious" because respondent could not have been aware that such a practice was prohibited by law. The knowledge element of section 17(k) is directed not to the requirements of the law, but to the physical conditions which constitute a violation of section 5(a). Mid-Plains Constr. Co., 20 OSAHRC 42, 44-45, BNA 3 OSHC 1484, CCH 1975-76 OSHD para. 19,889 (No. 4584, 1975) (Administrative Law Judge). Knowledge of the requirements of the law is a pertinent factor in determining whether a violation is "willful" within the meaning of section 17(a), (see [*6] e.g., Intercounty Constr. Co. v. O.S.H.R.C., 552 F.2d 777 (4th Cir. 1975)), but no allegation of willfulness is before us here. Citation No. 2 must therefore be affirmed as issued. We leave undisturbed, however, the Judge's assessment of a $50 penalty.
Citation No. 4 alleged that respondent's employees were exposed to temporary lights not equipped with bulb guards, contrary to 29 CFR § 1926.401(j)(1). Though there was conflicting testimony about whether the lights were temporary or not, the Judge did not resolve the issue. Instead, he vacated the citation on the ground that respondent fell within the holding of the Seventh Circuit in Anning-Johnson Co., v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975). In Anning-Johnson Co., BNA 4 OSHC 1193, CCH 1975-76 OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, 1976) the Commission declined to follow in all particulars the holding of the Seventh Circuit, but in light of that decision, reconsidered its own precedent with regard to multiple-employer construction sites. We have accordingly recognized that employers on such sites may [*7] assert certain affirmative defenses, and we have in most cases extended to them the opportunity to present evidence bearing upon them.
The record shows that the lights cited were not equipped with guards to prevent accidental contact with their bulbs, and that these conditions were accessible to respondent's employees. Accordingly, we remand this case so that the Administrative Law Judge may determine whether the lights cited were temporary or not; to afford respondent the opportunity to present evidence bearing on the multi-employer construction site defenses recognized by the Commission; and for further action as may be appropriate for the disposition of this case.
So ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, Concurring:
I concur in the lead opinion's discussion concerning the alleged violation of 29 C.F.R. § 1926.401(j)(1). I also concur in finding a serious violation of 29 C.F.R. § 1926.451(i)(8), and in the assessment of a $50 penalty. With respect to the latter violation, however, I do not rely in any manner on Complainant's Exhibit 1, the photograph showing Respondent's employees using the scaffold without safety belts. There is conflicting evidence concerning the circumstances [*8] under which that photograph was taken, and the judge did not expressly or implicitly resolve the conflict. Other evidence, however, establishes that the scaffold had recently been used by Respondent's employees without safety belts. Accordingly, a violation is established.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The evidence is insufficient to establish either of the alleged violations here in issue. I would therefore vacate both charges.
The citation charging respondent with noncompliance with the occupational safety standard codified at 29 C.F.R. § 1926.451(i)(8) should be vacated because the evidence does not establish that the standard was applicable to respondent's scaffold. For the reasons set forth in my dissenting opinion in Secretary v. A.C. Gonzalez Painting Contractors, Inc., OSAHRC Docket No. 4319, April 14, 1976, the requirements contained in § 1926.451(i)(8) apply only to suspension scaffolds designed for working loads of 500 or 750 pounds. Since complainant failed to establish the working load capacity of respondent's scaffold, the citation should be vacated.
The citation charging respondent with failing to comply with the occupational safety standard codified [*9] at 29 C.F.R. § 1926.401(j)(1) should be vacated because the evidence fails to establish that respondent created, caused, or was otherwise responsible for the cited condition. Under such circumstances, dismissal of the citation is required. See Anning-Johnson Co. v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Valley Sheet Metal Co., OSAHRC Docket No. 12717, October 4, 1976 (dissenting opinion); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket No. 4034 & 4147, July 28, 1976 (dissenting opinion).
The continued adherence by my colleagues to their confusing and ill-conceived decisions in Secretary v. Anning-Johnson Co. n3 and Secretary v. Grossman Steel & Aluminum Corp. n4 is patently unfair to the employers of this country. The so-called rules in those decisions not only fail to fairly apprise employers what is expected of them, but they also improperly hold employers liable for conditions for which they are in no way responsible. n5 Moreover, they place the burden on employers to prove their innocence, a rule which manifestly anathematizes our system of jurisprudence.
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n3 OSAHRC Docket Nos. 3694 & 4409, May 12, 1976.
n4 OSAHRC Docket No. 12775, May 12, 1976.
n5 In addition to the aforementioned cases, see my separate opinions in Secretary v. Circle Industries, OSAHRC Docket No. 4356, September 22, 1976; Secretary v. Truland-Elliot, OSAHRC Docket No. 11259, July 21, 1976; and Secretary v. Otis Elevator Co., OSAHRC Docket No. 8468, May 14, 1976, for further exposition of the fallaciousness of the Barnako-Cleary rules on liability at multi-employer worksites.
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The remand of this case "to afford respondent the opportunity to present evidence" concerning facts which complainant had the burden of establishing in the first place is a gross miscarriage of justice. Accordingly, the order of remand is improper, and the citation should be vacated.
Since this decision does not address all of the matters covered in Judge Risteau's decision, his decision is attached hereto as Appendix A.