NORTHWESTERN INSULATION CO., INC.  

OSHRC Docket No. 12632

Occupational Safety and Health Review Commission

March 15, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

Herman Grant Regional Solicitor

Norman C. Vance Manager Northwestern Insulation Company, Inc.  

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On December 9, 1975, Judge George W. Otto issued his decision in this case affirming two items of a serious citation and a nonserious citation for violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. [hereinafter "the Act"], and assessing a total penalty of $200.   Judge Otto found that the Secretary of Labor had complied with section 8(e) of the Act, 29 U.S.C. §   657(e), and therefore the citations would not be vacated on the basis of an "invalid" inspection. We affirm the Judge's decision insofar as it is consistent with this opinion.

Neither the respondent employer nor the Secretary petitioned for review, however Commissioner Moran issued a direction for review on December 30, 1975, reading as follows:

Pursuant to 29 U.S.C. §   661(i), I hereby direct that the decision of the Administrative Law Judge in the above-entitled case shall be reviewed by the Commission.

Subsequent to the direction for review, respondent, Northwestern [*2]   Insulation Company, Inc., appearing without counsel, protested the Judge's findings and conclusions concerning section 8(e).   Respondent did not object to the Judge's findings that the cited standards were violated.   Consistent with the policy statement issued by the Commission, 41 Fed. Reg. 53015 (1976), the Commission will examine the arguments of respondent without examining the question of whether the direction for review is voidable.

The precise issue raised by respondent is whether respondent's foreman was a "representative of the employer" within the meaning of section 8(e) of the Act so that his accompaniment of the inspector on the "walk around" inspection complied with section 8(e).   For the reasons assigned by Judge Otto we hold that the foreman was a representative of the employer, and therefore, there was compliance with section 8(e).   Indeed, upon the representation of Northwestern itself, Hutter, the general contractor, considered the foreman the authorized representative of the company.   The foreman worked in a managerial capacity, supervising the crew on that project and procuring necessary supplies and equipment.   There was no other person at the jobsite superior [*3]   in authority to the foreman. This indicates respondent's reliance on the foreman's supervisory skills.

Accordingly, we affirm the Judge's decision insofar as it is consistent with this decision.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Both citations should be vacated in their entirety because respondent was not afforded an opportunity to have his representative accompany complainant's inspector during the inspection of the worksite as required by 29 U.S.C. §   657(e).

Section 657(e) provides that "a representative of the employer . . . shall be given an opportunity to accompany the Secretary or his representative during the physical inspection of any workplace." This is a "substantial right" which requires "substantial compliance" by the Secretary of Labor.   Secretary v. Western Waterproofing Co., OSAHRC Docket No. 1087, June 21, 1976.

Respondent's foreman was a member of the International Association of Heat and Frost Insulators and Asbestos Workers Local 127 at the time of the inspection. By agreement between Local 127 and the Insulation Contractors' Association of Northern Wisconsin and Upper Michigan, n1 of which respondent was a member, a member of the union could not   [*4]   "act in any trade capacity other than a workman." Therefore, the foreman was precluded from acting as respondent's representative during the inspection. It is unfortunate that complainant did not know this at the time of the inspection, but this is not a justifiable reason for denying respondent the substantial right to which it is entitled under section 657(e).

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n1 Article V, section 1.

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Since this decision does not cover all of the matters discussed in Judge Otto's decision, the full text of his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Steven E. Walanka, for Complainant

Norman C. Vance, manager, for Respondent

Judge George W. Otto

In this proceeding by authority of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (Act) the Secretary of Labor (Secretary) alleges the employer Northwestern Insulation Company, Inc. (Northwestern) violated occupational safety and health standards as set forth in citations issued March 10, 1975 following an inspection made February 26,   [*5]   1975.   The employer contests the citations and contends the inspection was not conducted in conformity to the Act.   The hearing was held on July 29, 1975 in Green Bay, Wisconsin. n1

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n1 The transcript is sufficiently accurate to permit evaluation of relevant testimony.

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Northwestern was engaged in insulating and covering 32 heat exchanger towers located on the roof of an incinerator building (T 22, 23, 24, C-1, C-2).   The towers were spaced in rows of four; each tower was 8' long, 2'5" wide and about 26' high (T 67, 105, C-1, C-2, R-3).   The four towers within a row were spaced 3'3" (R-3).   The roof was about 30 feet above ground level (T27).   On February 26, 1975 the sheet metal crew was covering the insulated towers with aluminum panels 24' long and 3' wide (T 72).

There are differences in testimony as to the distance of the towers or scaffold from the roof edge and measurements as set forth by the inspector have been challenged by the employer.   The dimensions and measurements set forth herein are those presented [*6]   by the respondent particularly in exhibit R-3.

A Safeway scaffold was erected by Northwestern employees (T 67, 68).   It was located between the end tower row and the roof edge.   Plank working platforms were placed at three levels.   Another scaffold was located at the opposite end of this tower row with planks running the length of the towers and supported by each scaffold (C-1, C-2).

If the inspection was invalid and did not conform to the requirements of section 8(e) of the Act, the citations must be vacated, the complaint dismissed and this proceeding terminated.   However, the inspection was proper and did conform to the requirements of the Act, including section 8(e).

The Secretary's inspector, Robert Levand, conducted the opening conference in the trailer officer of Hutter Construction Co.; representatives of several contractors were present and Northwestern job foreman Richard A. DeBauche attended.   The inspector requested and received a list of about 30 contractors working on the project and was supplied with names including Mr. DeBauche.   Mr. Levand testified he asked Mr. DeBauche if he was the highest management official for Northwestern on the premises and he said he was,   [*7]   that he was authorized to represent Northwestern Insulation and that he had supervisory control over the employees working on that project, that the inspector offered the representative the opportunity to contact their general officers for additional representation if they thought they wanted it or if they thought it might be necessary, that no one expressed any such desire or need (T 17, 18, 19).   About 15 to 20 people took part in the entire inspection including Mr. DeBauche (T 21, 22).   The inspector and Mr. DeBauche talked during the inspection of the area involved in the instant citations and Northwestern employees were identified working on the scaffold (T 22).   The inspector pointed out to him what he considered hazards and violations and took photographs C-1 and C-2 (T 21, 22, 23, 24).

Richard DeBauche testified he was the job foreman, that he was notified to go to the job shack and represent the employer, that he was never asked if he could make any decisions and as to whether he was asked to call the employer, "Not that I know of, not that I remember" that he was a member of Local 127 of the Heat and Frost Insulators and Asbestos Workers Union, that his field superintendent [*8]   designated him job foreman (T 70, 86, 87).

Section 8(e) includes "subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection." The employer contends his manager, Norman Vance, was not given the opportunity to act as his authorized representative during the inspection, that the Secretary failed to follow the provisions of section 13(c) of the Act, that the foreman could not act in any trade capacity other than that of a workman since he was a member of Local 127 and the working agreement entered into September 28, 1974 between the association of which the employer was a member and the Union included article V, section 1 which provided ". . . the Union agrees not to contract, subcontract or estimate on work nor allow the employees it represents to do so, nor to act in any trade capacity other than that of workman." Further, the employer contends the word "shall" renders the application of section 8(e) mandatory.

The [*9]   Secretary acting through the inspector was not a party to nor aware of the working agreement between the employer association and Local 127, exhibit R-2.   The limitation of the trade capacity of Richard DeBauche did not prevent him from serving as the employer's representative for the purpose of the inspection involved herein.   Although he did not confirm the inspector's testimony, the foreman did not deny having been given the opportunity to contact his employer prior to the walk around.   The foreman's name was included in a list of individuals apparently considered employer representatives by the Hutter Construction Company.   There was no one superior to the foreman on the worksite at the time of inspection. He participated in the conversation with the inspector during such inspection. He was familiar with the job site details and the employer was not prejudiced by any contribution to the inspection made by the foreman.

Section 8(e) of the Act does not impose a mandatory requirement that an employer representative be afforded the opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace. The Commission stated in Secretary [*10]   v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528 (1973) that the legislative history clearly demonstrates that Congress intended the provisions of section 8(e) of the Act to be directory in nature rather than mandatory, that, however, Congress expects that Secretary to make every effort to afford accompaniment opportunities to authorized representatives of both employees and employers.   In Secretary v. Chicago Bridge and Iron Company, 14 OSAHRC 361, 376 (1973), the Commission held that section 8(e) in the light of the specifically stated purpose of the section is directive rather than mandatory. In Accu-Namics, Inc. v. Review Commission et al., #74-2979, July 11, 1975, the United States Court of Appeals, Fifth Circuit, held that even if the Secretary conducted an illegal inspection (which the court assumed only for the sake of argument) under the circumstances the violations cannot operate to exclude evidence obtained in the inspection when there is no showing that the employer was prejudiced in any way.

The inspector was entitled to consider the foreman the representative of the employer.   The foreman was familiar with the area inspected and there has been no essential factual [*11]   conflict as to the scaffold structure and its immediate area inspected on February 26, 1975.

There must be a showing of prejudice to the employer before vacating a citation for failure to comply with section 8(e).   Prejudice means actual prejudice to the employer's ability to present an effective defense.   No such prejudice has been shown herein.   The inspection of the worksite on February 26, 1975 was valid.

The employer contends the Secretary failed to comply with section 13(c) of the Act.   Section 13 relates only to procedures to counteract imminent dangers, wherein the United States District Courts rather than the Review Commission shall have jurisdiction.   The dangers implied in the instant violations at no time have been considered or treated as imminent within the meaning of section 13.   Inspection was made pursuant to section 8(e), citations were issued pursuant to section 9(a) and the employer exercised his right to contest the citations by authority of section 10(a).

The Secretary contends serious violation item 1 resulted from the absence of guardrails and toeboards as part of the scaffold, that serious violation item 2 was caused by excessive plank span, that both violations [*12]   are serious because there is a substantial probability that death or serious physical harm could result if an employee fell from the scaffold, that a non-serious violation resulted from the extension of scaffold planks over their end supports more than 12 inches.

The employer insists the structure observed by the inspector on February 26 was not the working scaffolding, that at the time pictures C-1 and C-2 were taken the scaffold was being rebuilt and if inspected 1 to 1-1/2 hours later would have been seen in a safe workable condition with the exception of toeboards and contends toeboards would have been very dangerous and the employees did not want them.   The employer considers there were guardrails since rope and 2 by 4's were used and, further, that the employer purchased iron pipe at the instruction of the inspector, for guardrail purposes, that the scaffold planks, guardrails and tiewire holding down the planks to the Safeway scaffold had to be removed to permit moving the 24 foot aluminum panels into the space between towers, that although it was not proven the spans were excessive, that sometimes if a plank span did go over the allowable limit the employer would double plank [*13]   and sometimes triple plank.

Citation item No. 1, serious violation of 29 CFR 1926.451(a)(4).   Description: employer failed to provide that guardrails and toeboards installed on all open sides and ends of platforms, more than 10 feet above ground or floor.   Such guardrails shall be in accordance with Ref. 29 CFR 1926.451(a)(5); e.g., scaffold on roof of incinerator building at ZIMPRO heat exchanger.

In a scaff 1d of this type the cited standard requires that guardrails and toeboards shall be installed on open sides and ends of platform more than 10 feet above the ground or floor.   Guardrails shall be 2 by 4 inches, or the equivalent, approximately 24 inches high with a midrail when required.   Supports shall be at intervals not to exceed 8 feet. Toeboards shall be a minimum of 4 inches in height.

The scaffold contained three working levels: the middle and upper levels were more than 10 feet above the roof and the ground was 30 feet below.   There was sufficient proximity to the roof edge to make possible a fall to the ground.   There were no toeboards (T 25, 27, 29, 30, 68, 69, C-1, C-2).   A 2 by 4 extended across one midsection and may be considered a guardrail; since the scaffold [*14]   contains 9 sections, 3 to each level, for guardrail purposes one section represents about 11%.   Exhibit C-2 shows a rope or ropes extending across two of the three sections above the top plank level.   Rope did not constitute a guardrail or the equivalent; even if rope could be considered a suitable material for guardrail purposes, this rope paralleled the top plank working platform but was from 2 to 3 feet away and would have provided little if any protection.   The scaffold did not contain required guardrails (T 25, 26, 28, 29, 30, 68, 69, 76, 79, C-1, C-2).

It is significant that at time of inspection the employees were dismantling part of the scaffold by moving planks to permit placement of the 24 foot aluminum sheets.   While so engaged they were entitled to the protection afforded by guardrails and toeboards. While a toeboard in the absence of a guardrail would create a possible tripping hazard, such potential hazard is removed by the presence of a prescribed guardrail. Toeboards also serve to reduce the possibility of kicking or bumping tools or materials onto workmen below.   Employees performed assigned duties while standing on this scaffold, exposed to the hazard of falling [*15]   due to the absence of guardrails and toeboards. Considering the scaffold working levels in relation to the distance from the roof and ground, there was a substantial probability that death or serious physical harm could result.

Citation for serious violation, item 2: 29 CFR 1926.451(a)(1).   Description: employer failed to provide that the maximum permissible span for 2 X 10-inch or wider planks does not exceed the dimensions in Table L-3; e.g., scaffold or roof of incinerator building at ZIMPRO heat exchanger.

The cited standard requires that all planking shall be recognized scaffold grades or equivalent with a maximum permissible span for 2 by 10 inch or wider planks as shown in Table L-3.   Each plank span between towers was about 12 feet and excessive.   The three planks running between towers did not require a guardrail or toeboard considering the distance of 3'3" between towers (T 50, C-1, C-2, R-3).   The use of possibly two or three planks instead of one does not conform to the standard or correct the violation.   However, there is not a substantial probability that death or serious physical harm could result from a fall.   The likelihood of a fall to the roof is reduced materially [*16]   by the vertical Safeway structures adjacent to the end portions of each plank, which materially reduce the opening and permit a reduction or elimination of the severity of impact.   "Substantial probability" is materially reduced.   This violation is non-serious.

Non-serious citation item 1: 29 CFR 1926.451(a)(14).   Description: Employer failed to provide that scaffold planks shall extend over their supports less than 6 inches nor more than 12 inches; e.g., on roof of incinerator building at ZIMPRO heat exchanger.

The cited standard requires that scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.   Although no specific measurements were made, there were scaffold planks extending over their end supports substantially more than 12 inches, particularly those running from scaffold to scaffold between the towers (T 37, 38, 69, C-1, C-2).

The abatement date of March 19, 1975 for each of the three violations was not unreasonable from the employer's standpoint.   Reasonably it could have been less.

The notification proposed a penalty of $550.00 for item 1 of the serious citation, $550.00 for item 2 of the serious citation and no penalty for [*17]   the non-serious violation.   The scaffold was used by seven employees installing the aluminum sheets and an insulation crew whose work had been completed at time of inspection. There is no indication of prior violations; the inspection history is favorable to the employer.   The gravity of the serious violation is moderate to high, considering the work was performed frequently in windy conditions.   The employer is entitled to substantial credit for good faith.   The job superintendent attended two OSHA seminars; on numerous occasions the employer put a letter in the employee pay envelope referring to federal safety standards and emphasizing the necessity of safe operations and including "we wish to call your attention to, as we have in the past, that all scaffolding is to be erected safely and with the necessary guardrails as required."

The employer did not intend to create an unsafe scaffold but elected methods resulting in a scaffold which failed to meet the requirements of the cited standards.   The fact that it was necessary for employees to move planks and in effect partially dismantle the scaffold to permit movement of the aluminum sheets to a location between the towers does   [*18]   not eliminate their exposure with resulting hazard caused by the violative conditions while they were engaged in the performance of their duties on any or all of the three levels.   The scaffold itself was erected in two days by two employees.   The partial dismantling operation took place 3 times a day and it took 1 to 1-1/2 hours to move and to put the planks back in place (T 85).   The preference and judgment of the employees cannot be substituted for the necessity of toeboards.

Section 6(d) permits any affected employer to apply to the Secretary for a rule or order for a variance from a standard.   This possible remedy was not followed by the employer.   To permit an employer to avoid the consequences under the Act for violation of a standard because in his judgment he prefers another method, would render the Occupational Safety and Health Act a mere suggestion and materially adversely affect the purpose of the Act to assure safe and healthful working conditions for working men and women.

Considering all statutory factors, assessment of reasonable penalties consistent with the purposes of the Act are as follows: $150 for violation of 29 CFR 1926.451(a)(4), $50 for violation of 29   [*19]   CFR 451(a)(10), no penalty for violation of 29 CFR 1926.451(a)(14).

FINDINGS OF FACT

1.   Respondent is an employer with employees and engaged in a business affecting commerce.

2.   Complainant gave respondent an opportunity to provide a representative to accompany the authorized representative of the Secretary of Labor during the physical inspection of the subject matter of the citation.

3.   Respondent's foreman accompanied the Secretary's authorized representative, participated in the physical inspection of the workplace, and during such inspection served as the employer's representative.

4.   Respondent employees performed assigned duties while standing on scaffold platforms more than 10 feet above the ground or floor.

5.   Respondent failed to install guardrails and toeboards on all open sides and ends of the inspected scaffold platforms more than 10 feet above the ground or floor.

6.   The movement of scaffold planks to permit insertion of aluminum panels between towers did not require the complete dismantling of the scaffold nor eliminate the necessity of guardrails and toeboards.

7.   There was a substantial probability that death or serious physical harm could result from [*20]   the failure to install required guardrails and toeboards.

8.   The scaffold contained planks 2 X 10-inch or wider with spans in excess of ten feet.

9.   The scaffold contained planks extending more than 12 inches over their end supports.

10.   The abatement date of March 19, 1975 for each violation was reasonable.

11.   In addition to consideration of factors of size, gravity and history, respondent is entitled to substantial credit for good faith.

12.   A penalty of $150 is reasonable for the violation resulting from failure to provide required guardrails and toeboards.

13.   A penalty of $50 is reasonable for the violation resulting from excessive scaffold plank spans, beyond maximum permissible span limits.

13.   No penalty is assessed for the violation resulting from the use of scaffold planks extending more than 12 inches over their end supports.

CONCLUSIONS OF LAW

1.   Respondent is an employer under the Act within the meaning of section 3(5).

2.   The inspection made February 26, 1975 conformed to the requirements of section 8(e) of the Act and was valid.

3.   Respondent failed to comply with occupational safety and health standard 29 CFR 1926.451(a)(4).   The violation was [*21]   serious.

4.   Respondent failed to comply with occupational safety and health standard 29 CFR 1926.451(a)(10).

5.   Respondent failed to comply with occupational safety and health standard 29 CFR 1926.451(a)(14).

6.   Penalties are assessed in the total sum of $200 as set forth herein.

ORDER

Pursuant to section 17(1) of the Act, Northwestern Insulation Company, Inc., respondent, shall pay to the Secretary for deposit into the Treasury of the United States the sum of $200.

George W. Otto, Judge, OSAHRC