WESTERN WINDOW CLEANING SERVICE, INC.
OSHRC Docket No. 14236
Occupational Safety and Health Review Commission
January 12, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Joe F. Canterbury, Jr., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The 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 of an unreviewed Judge's decision. [*2] 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 Judge Martin's vacation of Citation Number 1 for the reasons given in his decision. Citation Number 2 should, however, be vacated because 29 C.F.R. § 1910.66(b)(5)(iii), the standard originally cited by complainant, does not apply to the two-part suspension scaffold operated by respondent and because the Judge erred in finding a violation of 29 C.F.R. § 1910.28(g)(9) after amending that citation sua sponte. The latter standard involves issues pertinent to establishing noncompliance therewith which were not tried by the consent of the parties. See Secretary v. Maryland Shipbuilding and Drydock Company, 20 OSAHRC 443 (1975). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, 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 [*3] Judges.
Since my colleagues do not address any of the matters covered in Judge Martin'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
Ms. Jane Matheson, for the complainant
Joe F. Canterbury, Jr., for the respondent
MARTIN, Judge:
This is a proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq.), hereinafter referred to as the Act, contesting two citations and a notification of proposed penalty issued by complainant against respondent under the authority vested in complainant by section 9(a) of the Act.
The citations allege that as a result of an inspection of a work place under the operation and control of respondent located at the Mercantile building in Dallas, Texas, where respondent had two employees cleaning windows on several of the lower floors, respondent violated sections 29 CFR 1910.66(b)(5)(iii) and 29 CFR 1910.66(e)(3). The two citations issued in this matter resulted from an inspection made on July 3, 1975, following an accident which occurred in connection with respondent's window cleaning operations at the aforementioned [*4] building on June 28, 1975. The citations were issued on July 11, 1975, and on the same date the acting area director issued a notification of proposed penalty requesting payment of the total amount of $7,420.00.
The first citation referred to as a nonserious citation alleged that respondent failed to have a 1 ad rating plate conspicuously posted on its powered work platform at the aforementioned work site, and failed to have a metal data tag attached to one of the wire rope fastenings on the aforementioned powered platform in violation of section 29 CFR 1910.66(b)(5)(iii), as adopted from the American National Standard, ANSI A120.1-1970, Part III, paragraphs 23 and 25 respectively. n1 Respondent was also charged with failing to have recorded and available for review maintenance inspections and tests on the aforementioned power platform in violation of section 29 CFR 1910.66(e)(3). n2
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n1 "Powered platforms designated as Type T shall meet all the requirements in Part III of ANSI A120.1-1970, American National Standard Safety Requirements for Powered Platforms for Exterior Maintenance. A basic requirement of Type T equipment is that the working platform is suspended by at least two wire ropes. Failure of one wire rope would not permit the working platform to fall to the ground, but would upset its normal position. The employer shall require employees working on Type T equipment to wear safety belts, which are attached by lifelines to either the working platform or the building structure. Type T powered platforms may be either roof-powered or self-powered."
n2 "Maintenance inspections and tests. Each installation shall undergo a malacenance inspection and test every 30 days, except where the cleaning cycle is less than 30 days such inspection and test shall be made prior to each cleaning cycle. The results of these inspections and tests shall be recorded in a log which is available for review by the Assistant Secretary of Labor or his designated representative. Each log entry shall include the date of the inspection or test and shall be signed by the person making the inspection or test."
[*5]
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Citation No. 2 which was also issued on July 11, 1975, was described as a willful violation and alleged that respondent's employees were not required to wear safety belts and lifelines while working on a Type T powered platform which was described as a Werner Co. powered platform, equipped with two Steeple jenny hoisting units, which were being operated at the Mercantile building in Dallas, Texas. A violation of section 29 CFR 1910.66(b)(5)(iii) was also alleged.
Subsequent to the issuance of the citations and accompanying notification of proposed penalty, respondent filed a timely notice of contest with the area director. Thereafter complainant, through his regional solicitor, filed a formal complaint with the Review Commission and respondent, through its counsel, filed a formal answer generally denying the allegations set forth in the complaint. However, respondent's answer admits that the Review Commission has jurisdiction over the parties and subject matter herein and also admits that respondent on the date in question was engaged in a business affecting commerce within the meaning of the Act. [*6]
Pursuant to notice a formal hearing was conducted in this matter in Dallas, Texas, on December 2, 1975, at which time complainant was represented by Ms. Jane Matheson of the regional solicitor's office in Dallas, and respondent was represented by its attorney, Joe F. Canterbury, Jr., Esq. of the Dallas, Texas, bar. Following the hearing briefs were submitted for the undersigned Judge's consideration.
The issues to be decided herein are whether respondent committed a willful violation of section 29 CFR 1910.66(b)(5)(iii) by failing to require its workmen to wear safety belts and lifelines while engaged in its window cleaning operations at the Mercantile building, whether respondent committed nonserious violations of sections 29 CFR 1910.66(b)(5)(iii) and 29 CFR 1910.66(e)(3) by its failure to display a load rating plate on its powered platform or a metal data tag on one of its wire ropes to the powered platform and by its failure to maintain inspection records and tests on the powered platform. Also, to be considered is whether the penalties asproposed by the area director are appropriate.
The basic facts in this matter are not in dispute. On June 28, 1975, two of respondent's [*7] window cleaners, Griffith and Litteral, were beginning to wash plate glass windows on the lower floors of the Mercantile building in downtown Dollas at an elevation of approximately 24 feet. They were working from a two-point suspended platform, about 32 feet long and 2-1/2 feet wide, which said platform was powered by two Steeple jenny hoisting units. The platform was suspended by two wire ropes fastened to the roof of the building. They had just begun to work when one of the wire ropes broke, upsetting the platform and resulting in both of the workers falling to the ground. Griffith died as a result of the fall and Litteral was seriously injured. Neither of the window cleaners were wearing safety belts or lifelines at the time. Safety belts and lifelines were issued by respondent company to all of its window cleaners. Following the accident it was learned that the safety belts and lifelines had been left in their truck. In a deposition Litteral stated that while he was aware of the need for wearing safety belts and lifelines, he "figured we didn't need it on this job here". (Dep., p 27)
Griffith had worked for respondent only three or four days while Litteral had about [*8] a year of experience cleaning windows for respondent company. Litteral advised that Mr. Gwathney, president of respondent company, was at the work site on the morning in question while they were getting the platform "rigged up" and ready for work, but he did not recall specifically whether he (Gwathney) saw them when they were in the process of going up to wash the windows. Gwathney, after looking at the scaffold and after discussing with Litteral that a level wind guide was missing, apparently went across the street to check on another job which was in progress at the Vaughn building. He indicated that a few minutes later he glanced back across the street and that at that time he saw the scaffold "tumbling" through the air.
Gwathney testified that when he checked the platform on the morning of his visit he did not notice any safety belts or lifelines being hooked up or installed by the window cleaners.
As previously indicated respondent has been charged with willfully violating section 29 CFR 1910.66(b)(5)(iii) because of the fact that the window washers did not have on safety belts or lifelines on the Mercantile building job. Most of the controversy at the hearing resulted [*9] from the fact that respondent strenuously contended that his operations were covered by section 29 CFR 1910.28(g) n3 and that his platform was a two-point swinging scaffold and not a powered platform of the type contemplated by section 29 CFR 1910.66. It was Gwathney's view that the latter section only applied to a permanently installed type of powered platform of the type being used on the First International Bank building in Dallas.
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n3 Section 29 CFR 1910.28(g)(1) provides: "Two-point suspension scaffold platforms shall not be less than 20 inches nor more than 36 inches wide overall. The platform shall be securely fastened to the hangers by means of U-bolts or other equivalent means. * * * (9) on suspension scaffolds desigaed 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 workman shall be protected by a 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 shall safely suspend the workman in case of a fall."
[*10]
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After considering all of the evidence presented herein and the legal memoranda submitted by both parties it is the conclusion of the undersigned Judge that section 29 CFR 1910.66 entitled, "Powered Platforms for Exterior Building Maintenance" is not applicable to respondent's platforms since his platforms are not a permanent type of structure installed on the buildings being cleaned. A recent Review Commission decision in the case of the Secretary of Labor v. Maryland Ship Building Drydock Co., 20 OSAHRC 443 (1975), is controlling in this matter. There, the Review Commission pointed out that section 29 CFR 1910.66 applied to specialized equipment, designated as type F and type T powered platforms, and stated at page 445:
"Section 1910.66 contains detailed provisions governing the construction of Type F and Type T equipment, and regulating the manner in which such equipment is to be interfaced with the building on which it is used. These provisions, considered as a whole, make it plain that they are intended to apply to permanently installed platforms. This conclusion is enhanced by the fact [*11] that section 1910.66 is derived from American National Standard, ANSI A120.1-1970 'safety requirements for powered platforms for exterior building maintenance'. The source standard contains additional provisions which indicate that it is intended to apply only to permanently installed equipment."
Section 29 CFR 1910.66(b)(1)(i) under the heading "General Requirements" states as follows:
"This section establishes safety requirements for the design, construction, installation, operation, maintenance, inspection, and use of power-operated platforms for exterior building maintenance. The requirements of this section do not apply to temporary equipment used for construction work; or to devices which are raised or lowered manually." (emphasis added)
The American National Standard entitled, "Safety Requirements for Powered Platforms for Exterior Building Maintenance", commonly referred to as ANSI A120.1-1970, under paragraph 10.8 contains the following statement:
"Powered platforms shall be permanently installed on the building or structure." (emphasis added)
In this connection reference is also made to various other paragraphs and subparagraphs of ANSI A120.1-1970 which deal [*12] with the construction of working platforms, roof cars, breaking means, emergency communications, periodic inspections every 12 months, and building face guiding members.
Although section 29 CFR 1910.66(b)(5)(iii) does not apply to respondent's operations at the Mercantile building it is concluded that the general provisions of section 29 CFR 1910.28 do cover respondent's type of window washing operations and therefore that the complainant's citation and complaint should be amended accordingly to conform to the evidence as permitted by section 15(b) of the Federal Rules of Civil Procedure. n4
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n4 Rule 3(b) of the Review Commission's Rules of Procedure provide that in the absence of a specific provision procedure shall be in accordance with the Federal Rules of Civil Procedure.
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The undisputed evidence shows that Griffith and Litteral did not have on safety belts. After the collapse of the platform, it was discovered that the safety belts were in the truck. (T. 42) Section 29 CFR 1910.28(g)(9) specifically requires [*13] that workmen be protected by safety belts and lifelines while working off of suspension scaffolds. It was respondent's contention throughout the hearing that his window washing operations were performed with temporary platforms and not permanent type platforms. He referred to his platform as a two-point suspension scaffold or a swing stage scaffold. It is clear from the record that Gwathney has engaged in numerous conversations and discussions with OSHA personnel regarding the coverage of the standards and the matter of equal enforcement of the standards as to all window cleaning firms. Further, respondent has called attention to the fact that section 29 CFR 1910.28 sanctions the use of hoisting machines on two-point suspension scaffolds. n5
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n5 Mr. Gwathney stated: "Yes, sir. The platform is there and then you put the stirrups on it, which is what the code calls for. Then your motors are mounted on your stirrups. Then your cables are carried up and hooked to the building with your roof irons or your lookouts and your various roof attachments, which these are also temporary. They come with us when we go. We hook it all up and we take it back to the shop. The power platform described in this book here -- well, there is not many ways we could find to move it about, Your Honor." (T. 58)
[*14]
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Mr. Charles Adams, formerly area director of Occupational Safety and Health Administration, was subpoeaned to testify on behalf of respondent and he related many conferences and conversations with respondent's president regarding his confusion over the applicable standards and the enforcement program relative to all of the window cleaners in the Dallas area.
While a violation of section 29 CFR 1910.28(g)(9) has been established the evidence falls far short of a willful violation as pointed out in respondent's brief. Several cases have been cited by the parties involving charges of willful violations to wit: Secretary of Labor v. C.N. Flagg and Co., 15 OSAHRC 379 (1975); Frank Irey, Jr., v. Occupational Safety and Health Review Commission, 519 F. 2d 1200 (3rd Cir. 1974); F.X. Messina Construction Corp. v. Occupational Safety and Health Review Commission, 505 F. 2d 701 (1st Cir. 1974); and Intercounty Construction Co. v. Occupational Safety and Health Review Commission, 522 F. 2d 777 (4th Cir. 1975). These cases all deal with alleged willful violations. The ordinary, [*15] garden variety, definition of willful encompasses an act done deliberately or intentionally. There is no testimony or documentary evidence to show that respondent intentionally directed or even permitted its employees on the date in question to deviate from the standard by not wearing safety belts. In the Flagg case the Review Commission stated that a willful violation requires intentional conduct. In the Irey case Circuit Court stated that a willful violation required intentional conduct with such reckless disregard of the consequences as to be a knowing, conscious, and deliberate flaunting of the Act. In the Messina case the word willful was construed as action taken knowledgeably, intentionally deliberate, and voluntary. Various cases in volume 46 of Words and Phrases describe "willfulness" as the performance of a deliberate or intentional act regardless of the consequences as contrasted with an act of omission, negligence, or inadvertence.
Complainant states that respondent's president, Gwathney, was present at the work site before the work was begun, that he knew that this type of operation required the wearing of safety belts, and because he did not at [*16] that time specifically instruct the two window cleaners to wear their safety belts respondent was guilty of a willful violation. Complainant contends that this omission on the part of Gwathney constituted a willful violation. The record is devoid of any evidence that Gwathney intended that his men clean the windows in an unsafe manner or in violation of any standard of that he would have permitted such conduct if he knew of it. There is no evidence that Gwathney saw the men working off of the platform without safety belts on, in fact it is apparent from all of the testimony that Gwathney was across the street checking on the Vaughn building job when Griffith and Litteral began their work. The record as a whole does not reflect any willfullness, intent, or bad motive on the part of respondent or its president. In fact the former area director was highly complimentary of respondent's president as evidenced by his testimony, to wit:
"Q I assume you dealt with many employers in your capacity as area director?
A Yes.
Q And do you have an opinion as to whether Mr. Gwathney was sincerely trying to comply with the law?
A I would go on record as saying that Mr. Gwathney indicated a [*17] greater desire to comply with this law, equally as great a desire as any employer that I was associated with in my three and a half years as area director." (T.182)
* * *
"Q Did Mr. Swathney appear to be knowledgeable in the OSHA standards?
A Oh, yes, He knows those standards better than I do. He knows those standards.
Q Did he come to your office on more than one occasion?
A Oh, yes, more than once.
Q Did he come so many times you had to put a special rule out in your office?
A Leon came to my office so often, and his ability and his intenseness in this area was such that I felt like I would be the best man to handle him. So I told my secretary and the receptionist that I would talk to Leon when he came in.
Q Did Leon ever tell you that he was not going to make his people wear safety belts?
A No, No, he didn't tell me that.
Q Did he ever tell you that he was going to make them wear them?
A He told me that he knew that safety belts should be worn, and that he wanted his people to wear them, but he wanted his competitors to wear them, also, so that they would be even competition.
Q Okay, and he did tell you, you testified that he was having trouble with some of his people [*18] wearing them because nobody else had to wear them?
A Yes, and he even went so far as to say that he was having trouble keeping people because he was requiring his people to wear them and other people weren't." (T. pages 180,181)
The evidence of record establishes a serious violation of section 29 CFR 1910.28(g)(9). Section 17(k) of the Act defines a serious violation as:
"For purposes of this section, a serious violation shall be deemed to exist in a place of employment 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, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." (emphasis added)
It is obvious that a fall from a platform at a height of 24 feet or so could result in death or serious injury to workmen. While there has been no showing that respondent actually knew that the two workers on the date in question were going to violate the safety belt requirement it must be concluded that respondent [*19] with the exercise of reasonable diligence could have known of the possible violation. Throughout the record there was evidence that on occasion window cleaners have shown a tendency to work without belts because it is cumbersome and because it prevents them from working as fast as they would otherwise. This is a pertinent factor because most window washers are paid by the piece or job rather than by the hour. Respondent's president has had many discussions with OSHA personnel regarding the wearing of safety belts, passing on various complaints received by him because he (Gwathney), insisted on his employees wearing belts, while other window cleaning firms have been lax in this regard.
It further appears that respondent, through its president, could have known of this violation or prevented it through more adequate supervision. He was aware of the fact that a new worker, Griffith, was on the job. In fact, although Gwathney stated he wanted to see how he (Griffith) washed windows (T.21) he failed to do so. Although he was at the job site while the two workers were "rigging up" the platform he did not stay around long enough to see that the men had obtained their safety belts [*20] from their truck. n6 Since respondent knew of the tendency of employees on occasion to work without safety belts, it behooved respondent to institute a better means of supervision, and especially is this true when new personnel are on the job.
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n6 "Q Its true, isn't it, Mr. Gwathney, that when you were inspecting the platform and you noticed the level wind guide was missing, that you did not tell your employees or discuss the requiring of the wearing of lifelines and safety belts during that visit? Isn't that true?
A No, I didn't say a word to them about it. I have walked by the truck and had seen the belts on the seat. So this is something that really that morning didn't dawn on me. I had a new contract at the airport. I had men who had messed up the wall out there, and I had a man who was after me to redo a whole wall across one of those airport terminals. And I wanted to get there, and I had so much I wanted to do there. And this was all in my mind, was to see that everybody had something going that had to be done, and I was on my way when the accident happened." (T.45)
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Respondent's claim that the employees disobedience should be construed as an "isolated act" for which respondent would not be responsible is not well founded. Throughout the hearing Gwathney stressed the various difficulties which he had encountered in getting the men to comply with the safety belt standard. He cannot in good conscience contend that Litteral had always been careful in following orders and instructions and that his failure to wear the safety belt on June 28, 1975, was an isolated act of disobedience which took him by surprise. It is, therefore, concluded that respondent committed a serious violation of section 29 CFR 1910.28(g)(9) at the Mercantile building on June 28, 1975. n7
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n7 See also the Review Commission decision of June 1, 1976, in Secretary of Labor v. B-G Maintenance, Inc. (Docket No. 4713).
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Since it has been determined that subpart F, section 29 CFR 1910.66 entitled, "Powered Platforms for Exterior Building Maintenance" [*22] did not apply to respondent's window washing operation at the Mercantile building on the date in question, it must be concluded that respondent was not in violation of the three alleged nonserious violations as charged in the citation and complaint.
The only matter remaining for consideration is the amount of penalty to be imposed for the serious violation resulting from the failure of respondent's employees to wear safety belts and lifelines. As pointed out by complainant section 17(j) of the Act vests authority in the Review Commission to asses civil penalties, giving due consideration to such factors as the size of the employer's business, gravity of the violation, good faith of the employer, and history of previous violations. Obviously, the $7200 proposed penalty was arrived at with a willful violation in mind. Since only a serious violation was established by the facts of record the maximum penalty which could be imposed would be $1,000. This amount, of course, must be adjusted after carefully considering the factors ennumerated above. Respondent's window cleaning firm might be described as small since there are only nine or ten regular employees. Its prior history cannot [*23] be considered bad since the record reveals only one known citation and penalty which was for a nonserious infraction. The previous citation did not relate to the use of safety belts. Obviously the gravity of the violation must be considered as substantial since the window cleaners have to work at great heights on occasion and usually over city sidewalks and streets where a fall would certainly kill or disable a person.
While respondent may not be entitled to the highest rating on the factor of good faith it must be determined to be better than average. Several witnesses attested to the excellent quality of respondent's safety equipment (the best in the town). Respondent has purchased more than 78 rope grabs and 48 safety belts. The manila hemp rope lines are replaced regularly and also the ladders are replaced on December 31st each year. Many of respondent's employees have indicated that Mr. Gwathney has "preached" safety and stressed the wearing of safety belts since the passage of the Act. Although he has "harped" on the wearing of safety belts, he has not, apparently, gone the rest of the way by actually disciplining or firing a disobedient employee. Accordingly, it is [*24] deemed that a civil penalty in the amount of $300.00 would be appropriate under the circumstances.
FINDINGS AND CONCLUSIONS
The entire record herein supports the following findings and conclusions:
1. That respondent is, and at all times material hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 and respondent was at all times subject to the requirements of the Act and the standards promulgated thereunder.
2. That the Review Commission has jurisdiction over the parties and subject matter herein.
3. That on June 28, 1975, respondent had two employees engaged in cleaning windows at the Mercantile building in Dallas, Texas, and while working off of a platform suspended from the roof of the building, said employees were not protected by safety belts or lifelines.
4. That respondent violated section 5(a)(2) of the Act by its failure to comply with the standards published at section 29 CFR 1910.28(g)(9) and this violation was a serious violation within the purview of section 17(j) of the Act.
5. That it has not been established by reliable and probative evidence that respondent [*25] committed a willful violation of section 29 CFR 1910.66(b)(5)(iii) as alleged in the citation No. 2 issued on July 11, 1975.
6. That it has not been established by reliable and probative evidence that respondent committed nonserious violations of section 29 CFR 1910.66(b)(5)(iii) and 29 CFR 1910.66(e)(3) as alleged in citation No. 1 issued on July 11, 1975.
7. That a penalty of $300.00 is deemed to be an appropriate sanction for the serious violation described in paragraph 3 above.
ORDER
Based upon the foregoing findings and conclusions and the record as a whole it is ORDERED:
1. That citation No. 1, along with the notification of proposed penalty, be and the same is hereby vacated.
2. That citation No. 2, as amended by this decision so as to reflect a serious violation of section 29 CFR 1910.28(g)(9), be and the same is hereby affirmed and a penalty of $300.00 is assessed therefor.
HENRY F. MARTIN, JR., JUDGE
DATED: July 19, 1976
Dallas, Texas