CONSTRUCTORA MAZA, INC.

OSHRC Docket No. 12434

Occupational Safety and Health Review Commission

December 15, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Freddie Franco-Garcia, Acting Regional Attorney, U.S. Department of Labor

Rafael Benet, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before us on my order granting respondent's petition for review of Judge John J. Larkin's decision, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. n1

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n1 Former Commissioner Moran filed a general direction for review without specifying any issues.

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Respondent takes exception to Judge Larkin's affirmance of citations for "nonserious" violations of 29 CFR 1926.500(e)(1)(ii) and (iii), and 29 CFR 1926.451(a)(2) and (8), n2 "repeated serious" violations of 29 CFR 1926.500(d)(1), and "repeated" violations of 29 CFR 1926.350(a)(9) and 29 CFR 1926.450(b)(12). n3 For the reasons which follow, we affirm the Judge's decision.

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n2 Respondent also petitioned for review of Judge Larkin's vacating a citation for violation of 29 CFR 1926.350(a)(1). Because the Judge vacated this item, respondent is not adversely affected by the decision. Complainant has not petitioned for review of this item. In these circumstances the Commission declines to review the Judge's decision. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976.

n3 The cited regulatory standards are quoted elsewhere in this opinion.

Although respondent excepts to the Judge's affirmance of the citations alleging violations of 29 CFR 1926.500(d)(1), 350(a)(9) and 450(b)(12), the petition for review does not except to the characterization of the violations as "repeated." The issue of whether the violations are "repeated" within the meaning of section 17(a) of the Act is, therefore, not before us.

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Respondent employer, a Puerto Rican corporation, was engaged in the construction of a three-building complex known as Apartotel Melia. On January 23, 1975, an inspection was conducted by an OSHA [*3] compliance officer. Subsequent to the inspection respondent was charged with the following violations: First, a violation of 1926.500(e)(1)(ii) and (iii), for failure to guard adequately 28 stairways; second, a violation of 1926.451(a)(2), for providing inadequate scaffold support through the use of concrete blocks to support a scaffold; third, a violation of 1926.451(a)(8), for failure to replace or repair a damaged or split plank used in a scaffold; fourth, a violation of 1926.500(d)(1), for failure to install standard guardrails around the perimeter of open-sided floors; fifth, a violation of 1926.350(a)(9), for failure to properly secure and place in an upright position compressed gas cylinders; and sixth, a violation of 1926.450(b)(12), for failure to inset cleats on a job-made ladder. n4 The citations were timely contested by respondent and a hearing was held. Judge Larkin affirmed these citations, and respondent petitioned for review of his actions.

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n4 Respondent was also issued citations for "serious" violation of 29 CFR 1926.500(c)(1)(i) and "repeated" violations of 29 CFR 1926.25(a) and 1926.500(b)(1). The Judge affirmed all but the 1926.500(b)(1) citation. Respondent's petition does not mention the 1926.25(a) and 1926.500(b)(1) items. Although respondent referred in the petition to the wall openings which formed the basis of the 1926.500(c)(1) violation, it made no arguments that the Judge erred in his findings with respect to the item. We, therefore, find that these violations are not before the Commission on review.

[*4]

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In his decision, Judge Larkin held that 28 stairways were not equipped with standard stair railings on the open side as required by 1926.500(e)(1)(ii) and (iii), and assessed a penalty of $70. He held further that 1926.451(a)(2), the scaffold requirements, had been violated, and assessed a penalty of $55. A violation for failure to comply with 1926.451(a)(8) was found on the showing that a scaffold plank was damaged sufficiently to weaken its strength. No penalty was proposed or assessed. The Judge also held that the second level of buildings A and C, and the third, fourth and sixth levels of building B had floors with open sides and no guardrails in contravention of 1926.500(d)(1). On the basis of the fact that respondent had violated this standard on two previous occasions, and that a fall was likely to result in serious injury, the Judge characterized the violation of 1926.500(d)(1) as "repeated serious", and assessed a penalty of $4,000. The Judge also held that the Secretary had established violations of 1926.350(a)(9) and 1926.450(b)(12), and characterized them as "repeated" [*5] because respondent had previously violated each of these standards. Penalties of $190 and $140, respectively, were assessed.

Respondent contends in its petition for review that the stairways did not have open sides due to a 6-inch floor slab about 45 inches from the stairway landings. It asserts that the use of concrete blocks to support the scaffold did not make the scaffold dangerous and that there was thus no violation of the standard. It also argues that the scaffold plank was safe because it was not damaged beyond repair and there was no possibility of injury to employees using the scaffold. As to the failure to install standard guardrails on the open-sided floors, respondent alleges that keeping the guardrails in place would have impeded the removal of material being moved by a climbing crane, and that there was thus no violation of 1926.500(d)(1). Respondent further contends that 1926.350 applies only to the transportation, movement and storage of compressed gas cylinders. Respondent excepts to the affirmance of the 1926.450(b)(12) citation because the job-made ladder was new, had no broken or damaged cleats and was of appropriate dimensions and strength.

Having [*6] considered respondent's exceptions and reviewed the entire record, we find that respondent's contentions are without merit. The compliance officer's testimony demonstrates that respondent was in violation of the standards before us on review. His testimony as well as copious photographic evidence as to the existing conditions at respondent's worksite is unrebutted.

The compliance officer testified that 28 stairways were without standard stair railings as required by 1926.500(e)(1)(ii) and (iii). n5 Photographic exhibits nos. 43-45 clearly show the lack of stair railings. Respondent's contention that the openings were merely wall openings which were in the process of being closed off by concrete blocks is without merit. As Judge Larkin noted, the photographic evidence refutes this assertion. We affirm the Judge's decision and the imposition of a $70 penalty.

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n5 The standard provides:

1926.500 Guardrails, handrails, and covers.

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(e) Stairway railing and guards.

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.

* * *

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on each side.

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

[*7]

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The standard at 29 CFR 1926.451(a)(2) provides:

1926.451 Scaffolding

(a) General Requirements.

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(2) The footing or anchorage for scaffolds shall be sound, rigid and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick or concrete blocks, shall not be used to support scaffolds or planks.

Respondent asserts that the scaffold was completely safe, although supported only by concrete blocks. Respondent has confused the gravity of the violation with the presence of the violative conditions. The standard is mandatory, providing that, "Unstable objects such as . . . concrete blocks, shall not be used to support scaffolds or planks." (emphasis added). The testimony of the compliance officer and photographic evidence, specifically exhibit No. 41, clearly show that respondent's scaffold was supported by concrete blocks in violation of the standard. The violation is affirmed and a penalty of $55 is assessed.

We further agree with the Judge's affirmance of the 1926.451(a)(8) item. The standard reads [*8] as follows:

"Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced."

Respondent argues only that the plank was not damaged beyond repair and that there was no possibility of injury to its employees. The standard, however, clearly does not require that scaffold components be damaged "beyond repair" before repair or replacement is mandated. In arguing that there was no possibility of injury to its employees, respondent apparently argues that the split in the plank did not create a hazard to its employees. Judge Larkin found that ". . . the damage is sufficient to weaken the strength of the plank." Respondent has not adduced evidence specifically refuting this finding. Also, we have held that standards such as the cited one presuppose the existence of a hazard when their requirements are not met. See Vecco Concrete Constr. of D.C., Inc., No. 15579 (October 11, 1977). The evidence establishes that respondent's employees were using a scaffold with a weakened plank in contravention of the standard's requirements. We, therefore, affirm the violation. No [*9] penalty is assessed.

We also affirm the "repeated serious" violation of 1926.500(d)(1). n6 The evidence discloses that standard guardrails were not installed on open-sided floors at the second level of buildings A and C and the third, fourth, and sixth levels of building B. Respondent asserts that guardrails were not installed on the second level of building C and the sixth level of building B because material was to be removed from those floors by a climbing crane. This does not alter the result. Respondent has not established that it would have been impossible to remove the material from the floors while the guardrails were in place. The evidence indicates that a loading platform was present on the sixth floor of building B and respondent has not shown that this platform could not have been used. No evidence was presented as to the impossibility of removing materials from the second floor of building C. Respondent has not proved an impossibility defense. See Taylor Building Associates, 5 BNA OSHC 1083, 1085, 1976-77 CCH OSHD para. 21,592 (No. 3735, 1977). Also, respondent's "impossibility" defense relates only to the sixth floor of building B and the second floor [*10] of building C. No argument is presented by respondent regarding the failure to install guardrails on other floors. Accordingly, this item is affirmed as a "repeated serious" violation and we adopt the $4,000 penalty assessed by the Judge.

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n6 The standard provides:

1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

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Respondent asserts that 29 CFR 1926.350(a)(9) applies only to the transportation, movement and storage of compressed gas cylinders, that [*11] the gas cylinders on the jobsite were in use, and thus the standard was not violated. The standard provides as follows:

1926.350 Gas welding and cutting.

(a) Transporting, moving and storing compressed gas cylinders.

* * *

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The standard thus requires gas cylinders to be secured in an upright position unless the cylinders are being hoisted or carried for short periods of time. The testimony of the compliance officer and photographic exhibits 47-50 indicate that some cylinders were lying on the ground and that others were unsecured. The standard requires cylinders to be secured "at all times" and respondent did not comply with the plain language of the standard. The Judge's conclusion of a "repeated" violation is affirmed and a penalty of $190 is assessed.

In excepting to affirmance of the violation of 29 CFR 1926.450(b)(12), respondent asserts that the ladder was safe and had no damaged cleats. Once again respondent ignores the clear language of the standard, which provides:

[*12] 1926.450 Ladders

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(b) Job-made ladders.

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(12) Cleats shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

Respondent admitted that the cleats were not inset into the side rails as required by the standard. We affirm the Judge's holding and assess a penalty of $140.

Accordingly, the Judge's decision is affirmed and total penalties of $4,455 are assessed. It is so ORDERED.