CENTRAL BUILDING AND CLEANING CO., INC., A CORPORATION

OSHRC Docket No. 14036

Occupational Safety and Health Review Commission

January 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solictior, USDOL

Charles T. Rivkin, President, Central Building & Cleaning, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. This parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the Judge's decision in this case except to the extent that it grants complainant's post-hearing motion to amend the serious citation. Complainant moved to amend that citation to allege that respondent had failed to comply with the standard codified at 29 C.F.R. 1926.451(i)(9) rather than 1926.451(i)(4). Because of the unique nature of citations under the Act, such managements are inherently prejudicial and should, except in the most extraordinary of circumstances, be denied. n1

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n1 My views on this matter are set forth in greater detail in my dissenting opinion in Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976.

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Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, [*3] Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Rubin's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Robert H. Brown, for Complainant

Charles T. Rivkin, President, for Respondent

STATEMENT OF THE CASE

Louis J. Rubin, Judge:

This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter called the Act). A hearing was held on September 29, 1975 in Chicago, Illinois. No affected employee or authorized employee representative has asserted party status.

On May 28, 1975, the Secretary of Labor issued two citations alleging one serious and four non-serious violations of safety standards. A penalty of $550.00 was proposed for the serious violation, citation 1. No penalties were proposed for the non-serious violations, citation 2. At the hearing, respondent withdrew its contest to item 1 [*4] and 4 of citation 2.

On May 23, 1975, Compliance Officer Charles Schultz, inspected respondent's workplace at 2053 North Clark Street, Chicago, Illinois, where respondent's employees were sandblasting the exterior of the building. Overton Keith, sandblaster, was in chare of the work crew which consisted of himself and two helpers. The helpers assisted in raising the scaffold, swept sand from the sidewalk, warned pedestrians of airborne sand particles and operated an air compressor on signal from Keith.

The Compliance Officer observed Keith sandblasting from a scaffold suspended about 24 feet above the ground. The scaffold was constructed of wooden platform with three metal uprights supporting a metal toprail along one of the long sides. About two feet inside each end of the scaffold, were triangular shaped bales to which were attached lines and pulleys. An arc-shapped cornice hook was attached to each of the lines. The points of the cornice hooks rested in grooves cut into a ledge situated about six feet above the floor of the scaffold. A line was tied from the top of each cornice hook to window washer hooks located several feet above the ledge. (Exhibits S1-A to S1-G.) [*5]

SERIOUS VIOLATION

Citation 1, as amended by the complaint, alleges that respondent failed to provide on a two-point suspension scaffold suspended twenty-four feet above the sidewalk at the workplace:

a. Roof irons or hooks securely installed and anchored in that roof hook intallation and anchorage on the ledge above the second floor was not secure.

b. Tiebacks of 3/4-inch manila rope, or equivalent, installed at right angles to the face of the building, and secured to structurally sound portion thereof, in that tiebacks were not provided to keep the scaffold from swaying.

c. Protection for employees of an approved safety life belt attached to a lifeline securely attached to substantial members of the structure (not scaffold) or to securely rigged lines which will safely suspend the employees in case of a fall, in that the employee performing sandblasting was not protected by a safety life belt attached to a lifeline.

d. Guardrails, midrails and toeboards on the ends of the scaffold and midrails and toeboards on the open side of the scaffold; in that midrails and toeboards were not installed on the ends or open side of the scaffold and toprails were not installed on the [*6] ends. (29 CFR 1926.451(i)(4), (8) and (11))

(a) Cornice Hooks

29 CFR 1926.451(i) provides:

"(4) The roof irons or hooks shall be of mild steel, or other equivalent material, of proper size and design, securely installed and anchored. Tiebacks of 3/4-inch manila rope, or the equivalent, shall serve as a secondary means of anchorage, installed at right angles to the face of the building, whenever possible, and secured to a structurally sound portion of the building."

Complainant contends that the cornice hooks were not securely installed and anchored since weight bearing and stability are provided by the arc not the point and the scaffold was supported by the points of the hooks. Further, the hooks were not secure because the ledge could crack.

Keith testified that he chopped holes in the ledge about 2 inches wide and 2-1/2 inches deep. The points of the hooks were set in these grooves. Keith inspected the placement of the points before he stepped on the scaffold. The Compliance Officer admitted that the hooks would not "walk" when the points were in the grooves. (Tr. 88.) Although the arc provides greater strength and stability, the requirement which complainant would [*7] impose is not mandated by the standard. The evidence does not establish that the hooks as installed would not support the suspended weight or that they were not "security installed and anchored."

The allegation that the ledge could crack is refuted by the more credible evidence in this regard by respondent's witnesses. Keith and Bernard Schultz, President, Local 52, Tuckpointers, Cleaners and Caulkers Union, testified that there was no likelihood the ledge would crack; if the ledge did crack, the hook points would go straight down into the remaining portion of the stone and secure the hooks; pulling on the downline at any angle from the ground would not alter the force on the point of the hook which would be straight down. (Tr. 210, 268, 305.)

(b) Tieback of Scaffold

Respondent was initially charged with failure to provide tiebacks to keep the scaffold from swaying in violation of 29 CFR 1926.451(i)(4). In its brief, complainant seeks to amend and charge a violation under 1926.451(i)(9). Complainant argues that a violation of latter standard was tried by the implied consent of the parties and that the amendment should therefore be allowed pursuant to Rule 15(b) of the [*8] Federal Rules of Civil Procedure n1.

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n1 Rule 15(b) provides, in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . .

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A Rule 15(b) amendment is proper when all issues relevant to the amended theory, including issues of defense, have been tried, Copelan Plumbing Co., 9 OSAHRC 425; Brisk Waterproofing Co., 3 OSAHRC 1132. The issue whether the scaffold was securely latched to prevent it from swaying was in fact tried. Evidence introduced by both parties focused on this issue. Under these circumstances respondent will not be prejudiced by amendment of the citation. Complainant's motion to amend is [*9] granted.

29 CFR 1926.451(i)(9) provides:

"Two-point suspension scaffolds shall be securely latched to the building or structure to prevent them from swaying. Window cleaners' anchors shall not be used for this purpose."

The scaffold was tied back to the building by lines attached from the cornice hooks to window cleaners anchors. The standard expressly prohibits this type of tieback. The wisdom of the standard as a safety measure is not subject to challenge. If respondent believes that remedial work, such as it is engaged in, does not permit conformance with the standard a variance should be requested.

(c) Safety Belt and lifeline

29 CFR 1926.451(i) provides:

"(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 [*10] 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."

Keith was not wearing a safety life belt while working on the scaffold nor was there a lifeline in view. Respondent contends that Keith's failure to do so was contrary to company instructions and policy. However, the record shows that Keith was given considerable latitude in determining when these safety devices should be used. (Tr. 234.) Respondent's superintendent visited the site prior to the inspection and noted Keith was not wearing a safety belt. He accepted Keith's explanation that the neon signs, supporting chains and fire escape prevent use of the lifeline. The scaffold had been moved to an adjacent position and these obstacles were not present when the Compliance Officer arrived at the site. Now, Keith determined that the lifeline would interfere with his work. One objection to the lifeline was that it might be severed by a burst from the sandblast nozzle. If this did happen, an event no more likely then severing the scaffold suspension lines, Keith would have [*11] had lifeline protection up to the time of such occurrence. Other objections to the use of the lifeline are equally spurious. It is clear that the lifeline and safety belt were not used because they were inconvenient and not because they made the work performance impossible or created a greater hazard.

(d) Guardrails and Toeboards

29 CFR 1926.451(i) provides in pertinent part:

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

The scaffold had a toprail along one of the long sides. There was no midrail and no toeboards. A potential hazard was present in that the sandblaster could slip between the platform and the top rail and fall from the scaffold. Respondent contends that toeboards are not necessary since there were no loose objects on the scaffold. While that is one of the hazards preventable by toeboards, [*12] the toeboards would have provided an additional safety factor in preventing a fall since the midrail was also missing. Respondent further contends that the sandblaster works within the bales and that the bales act as barriers protecting from a fall off the end of the scaffold. The photos reveal that the triangular shaped bales could be a tripping hazard particularly since the sandblaster's vision is restricted by a four to six inch glass window in his hood. In any event, the bales do not provide the same measure of safety as would a toprail, midrail and toeboard at the end of the scaffold.

RESPONDENT'S KNOWLEDGE AND PENALTY

Section 17(k) of the Act provides that a serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Complainant considered the alleged improper use of the cornice hooks and failure to use a lifeline and safety life belt [*13] as serious violations. Respondent's failure to tieback the scaffold and the absence of rails and toeboards were considered to be non-serious violations. The four items are charged as one serious violation

There is no dispute that respondent knew that the scaffold in use lacked midrails, toeboards, and toprails at the ends, in violation of 29 CFR. 1926.451(i)(8). (Tr. 191 193.) Although respondent had issued instructions concerning the use of lifelines and safety belts, the instructions were not clear and unambiguous. To the contrary, Keith understood that he was at liberty to determine when these protective devices would be used. Obviously, Keith was not conversant with the standards pertaining to lifelines and safety belts or with the requirement that window cleaners' anchors shall not be used to tieback the scaffold. Under these circumstances, the exercise of reasonable diligence should have indicated to respondent that a violation could occur. It is also noted that this is not a case where a safety belt and lifeline were set up on the scaffold and not used by the employee. No safety belt or lifeline was in sight and none was produced on the site. The possibility that [*14] death or serious physical harm could result from these collective violations is self evident when an individual is working on a suspension scaffold 24 feet above the ground.

A penalty of $550.00 has been proposed. Since it is held that the installation of the cornice books was not in violation of the standard, a reduction in the proposed penalty is appropriate. Respondent is safety conscious and cooperative. The Compliance Officer allowed maximum credit for good faith. There is no history of prior violations. Two of the items of the collective violations were deemed to be non-serious. Abatement can be readily accomplished by clarification and enforcement of respondent's safety program. In view of the foregoing, a penalty of $150.00 is appropriate.

HEAD PROTECTION

29 CFR 1926.100 provides:

"(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets."

One of the laborers was not wearing a hard hat at the time of inspection. The employees stated that respondent provided hard hats. The record is silent as to what efforts were [*15] made to insure that the hats are worn. The possibility of head injury was present in that the sandblassing hose could fall from the scaffold. Head injuries could also be caused by impact with the scaffold or on raising, lowering, or removing the ladder from the job site. No penalty was proposed for this non-serious violation and none is warranted. (Citation 2, item 2.)

EYE AND FACE PROTECTION

29 CFR 1926.102(a) reads in pertinent part:

"Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical or radiation agents."

The laborers were not wearing any eye protection despite the potential hazard of eye injury from sand particles. The sandblasting process used 4000 pounds of fine sand in an eight hour day. Photographic exhibits show a cloud of sand in the air and sand on the ground. (Exhibits S1-B and C.) Sand not only drifted down but was blown by the wind. The quantity of sand being blown in the air was so great that the Compliance Officer had to place himself 50 feet away from the operation to avoid getting sand in his eyes. (Tr. 64.) Respondent would rely on its employees [*16] experience and judgment to prevent eye injury. This is not enough. No penalty was proposed for this non-serious violation and none is warranted. (Citation 2, item 3.)

WALKAROUND

The Compliance Officer identified himself to the sandblaster, who was in charge of the operation, when the Compliance Officer appeared at the work site. Prior to the walkaround, the Compliance Officer told the sandblaster to notify his company. After the inspection, the Compliance Officer requested respondent's supervisor to come to the work site but the supervisor declined.

Section 8(e) of the Act provides that a representative of the employer shall be given an opportunity to accompany the Secretary or his authorized representatives during the physical inspection of a work place. Such opportunity was afforded respondent, and no prejudice to respondent's case is shown.

FINDINGS OF FACT

1. Respondent is a corporation located in Chicago, Illinois and is engaged in tuck-pointing, sandblasting, masonry repair and related construction and repair activities (Complaint not denied).

2. Respondent handles goods which have moved in interstate commerce (Complaint not denied).

3. A Compliance Officer [*17] of the Occupational Safety and Health Administration inspected respondent's workplace in Chicago, Illinois on May 23, 1975.

4. At the time of the inspection, respondent's scalfold suspended 24 feet above the ground was securely installed and anchored within the meaning of 29 CFR 1926.451(i)(4).

5. The scaffold was tied back to window cleaners' anchors contrary to 29 CFR 1926.451(i)(9).

6. Respondent's sandblaster was not wearing a safety life belt nor did he use a lifeline while working on the scaffold.

7. The scaffold did not have a midrail or toeboards, or top rail at the ends.

8. The violations noted in 5, 6 and 7 supra could result in death or serious physical harm.

9. Respondent knew that the scaffold did not have a midrail or toeboards or top rail at the ends.

10. With the exercise of reasonable diligence, respondent could have known that the employee was not using a safety life belt of lifeline and that the scaffold tieback was in violation of a safety standard.

11. One of respondent's employees at the worksite was not wearing a hard hat and was thereby exposed to head injury.

12. Two of respondent's employees at the worksite were not wearing eye protection [*18] and were thereby exposed to eye injury.

13. The walkaround inspection was conducted in substantial compliance with Section 8(e) of the Act.

CONCLUSIONS OF LAW

1. Respondent is and, at all times relevant herein, was an employer engaged in a business affecting commerce within the meaning of Section 3(d) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter pursuant to Section 10(c) of the Act.

3. Respondent was in violation of 29 CFR 1926.451(i)(8), (9) and (11) as alleged in citation 1, serious violation.

4. Respondent was not in violation of 29 CFR 1926.451(i)(4) as alleged in citation 1.

5. Respondent was in violation of 29 CFR 1926.100(a) as alleged in citation 2, item 2.

6. Respondent was in violation of 29 CFR 1926.102(a)(1) as alleged in citation 2, item 3.

ORDER

1. Citation 1 is affirmed except that the alleged violation 29 CFR 1926.451(i)(4) is vacated. A penalty of $150.00 is assessed.

2. Items 2 and 3 of citation 2 are affirmed. No penalty is assessed.

3. Respondent's motion to withdraw its notice of contest to items 1 and 4 of citation 2 [*19] is granted. These items are affirmed. No penalty is assessed.

Louis J. Rubin, Judge, OSHRC

Dated: July 20, 1976