WESTERN WATERPROOFING CO., INC.

OSHRC Docket No. 15439

Occupational Safety and Health Review Commission

March 17, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Reg. Sol., USDOL

John E. Farris, P. E., Corporate Safety Director, Western Waterproofing Co., Inc., 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 [*2] is accorded the significance 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

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Ellis V. Cruse, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Mr. John L. Farris, Professional Engineer, Corporate Safety Director, Western Waterproofing Company, on behalf of respondent

STATEMENT OF THE CASE

Patton, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant [*3] by section 9(a) of the Act.

The citation alleges that as a result of the inspection of a workplace under the ownership, operation and control of the respondent, located at Hinds Junior College at Raymond, Mississippi, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standards 29 C.F.R. 1926.450(a)(10) and 29 C.F.R. 1926.451(g)(1), (g)(2), (i)(4), (i)(8) and (i)(11). Hearing was held on March 5, 1976, in Jackson, Mississippi. The complainant and respondent appeared and presented evidence. Briefs have not been filed. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

The complaint alleged as follows:

"Citation No. 1

"Item No. 1: Failure to tie, block or otherwise secure ladder to prevent it from being displaced, (i.e., the ladder at southeast corner of gymnasium.) Standard violated: 29 CFR 1926.450(a)(10).

"Item No. 2: Failure to ensure employees safety while working from two-point suspension scaffolding hung by outrigger beams in that:

"(a) The Fulcrum point of the beams did not rest on a secure bearing at least 6 inches in each horizontal dimension nor were the beams securely braced [*4] at the fulcrum point against tipping, (Ref. Paragraph (g)(1),

"(b) The inboard ends of the outrigger beams were not securely anchored either by means of struts bearing against sills in contact with the ceiling, or by means of tension members secured to the floor (roof used as floor) joists nor were the entire supporting structures securely braced in both directions to prevent any horizontal movement, (Ref. Paragraph (g)(2),

"(c) Secondary means of anchorage, installed at right angles to the face of the building for ropes supporting the scaffold platform were not installed and secured to a structurally sound portion of the building, (Ref. paragraph (l)(4),

"(d) Employee was not protected by an approved safety life belt attached to a lifeline securely attached to substantial members of the structure, (Ref. Paragraph (l)(8),

"(e) A Guardrail approximately 42 inches high with a midrail, and toeboard, was not installed at open side on scaffold more than 10 feet above the ground, (Ref. paragraph (l)(11). Standard violated: 29 CFR 1926.451."

EVIDENCE AND EVALUATION OF THE CASE

The complaint alleged that the respondent is a corporation having a place of employment, among others, [*5] at a worksite located at Raymond, Mississippi, where it is engaged in waterproofing work on a building at Hinds Junior College. Equipment and materials used in said work were in part produced at or transported from points outside the State of Mississippi. The respondent's answer did not deny these allegations; and, therefore, they may be taken as true.

The respondent also stipulated at the hearing that it is engaged in interestate commerce within the meaning of the Act.

The complaint was amended at the hearing so as to correct a typographical error. In paragraph four of the complaint under item two of citation number one, subparagraph (c) is amended so that "(l)(4)," is changed to "(i)(4)," subparagraph (d) is amended changing "(l)(8)" to "(i)(8)," and subparagraph (e) is amended to change "(l)(11)" to "(i)(11)."

Mr. William Chandler, compliance officer for the complainant, testified that he has a degree in industrial engineering (Tr. 6). He inspected the respondent's work at Hinds Junior College on October 3, 1975. A typical educational building was being constructed at said college (Tr. 6). Respondent was spraying a waterproofing agent on the side of the building (Tr. 7). [*6] Mr. Eddie Coley, job foreman for respondent, accompanied Mr. Chandler on the inspection. Mr. Carter Jefferson, another of respondent's employees, also accompanied him (Tr. 7).

Mr. Chandler testified that the respondent had a portable ladder which was used on the southeast corner of the gymnasium, on which ladder men would climb to apply the waterproofing. The ladder was not tied, locked or secured in any manner (Tr. 8). Respondent's representative agreed at the trial that this was a correct statement of fact. He stated they were not using the ladder at the time of inspection (Tr. 22). Mr. Coley, however, told Mr. Chandler at the time of inspection that it had been used on October 2, 1975. Mr. Coley stated that he had used it himself (Tr. 22, 23).

Mr. Coley testified that the ladder was used in spraying the waterproofing agent on the building (Tr. 29, 30). They sprayed from the ladder as well as from the scaffold (Tr. 31). Mr. Coley stated the ladder was not tied because there was nothing to tie it to (Tr. 30). He stated that Mr. Jefferson would hold the ladder while he (Mr. Coley) was on it (Tr. 32, 33). The complainant introduced no evidence to contradict this evidence [*7] of the respondent; and, therefore, said evidence must be taken as true. The respondent cannot be held in violation for failing to do the impossible. If there was nothing to which the ladder could be secured, the respondent did best thing possible in having one employee hold the while the other employee was climbing it. The complainant has therefore failed to establish that violation for failure to secure the ladder has occurred.

It was alleged that respondent violated standard 29 C.F.R. 1926.451(g)(1) and (2). Mr. Chandler testified that the respondent was using a two-point suspension scaffolding hung by outrigger beams which were on the roof at the fulcrum point. At each beam, there were three two-by-four-inch boards stacked on top of one another on which the beam rested (Tr. 9). It was alleged that the fulcrum point of the beams did not rest on a secure bearing at least six inches in each horizontal dimension, nor were the beams securely braced at the fulcrum point against tipping. It was further alleged that the inboard ends of the outrigger beams were not securely anchored either by means of struts bearing against sills in contact with the ceiling or by means of tension [*8] members secured to the floor (roof used as floor) joist, nor were the entire supporting structures securely braced in both directions to prevent any horizontal movement.

Mr. Chandler testified that the respondent used a two-point suspension scaffolding hung by outrigger beams which were on the roof. At the fulcrum point, at each beam, there were three two-by-four-inch boards stacked on top of one another on which the beam rested (Tr. 9). Complainant's exhibits 1, 2, and 3 reflect the situation with reference to the scaffold. It was stated that the fulcrum points were resting on three two-by-four-inch boards which rendered support in the horizontal dimension. It was in one horizontal direction only (Tr. 11, 12). There was not support in each horizontal direction of at least six inches, as required by the standard (Tr. 12). It was stipulated by the representative for the respondent that the above facts were true (Tr. 13). The inboard end of the westernmost outrigger beam was weighted down by two blocks. The outrigger beam, which was the I-beam, was attached to these two cubular blocks by a metal rod. Mr. Chandler asked Mr. Coley what type of rod it was and was told it was [*9] a scaffold kicker leg (Tr. 13). The scaffold kicker leg was inserted through an eye-bolt which was on top of the cubular block on one side of the I-beam. It then went through the eye-bolt, which was about one and one-half to three inches in diameter. It then went through a one-inch diameter hole which was in the web, the vertical top portion of the I-beam itself. It went through the one-inch hole and through an eye-bolt, which was on top of the cubular block or weight on the other side of the I-beam. Each beam was attached to each block in a similar manner. The blocks were not attached to the roof or the top of the building in any manner. They simply rested on the metal roofing (Tr. 14). There was no type of anchoring or securing and no attachment to the building on either of the tow beams. There was no kind of bracing on either of the beams to prevent side-wise movement (Tr. 14).

Mr. Coley testified that the scaffold was used to spray material (Tr. 30). They sprayed both from the ladder and the scaffold (Tr. 31). The scaffold was 22 feet at the highest place at which the spraying was done (Tr. 31). Mr. Jefferson helped to tie the scaffold to the top (Tr. 30, 31).

Mr. [*10] John Farris, safety director for respondent from its St. Louis office, testified that a counter-balance of outriggers or lookout poles was used to suspend the scaffold (Tr. 36). He stated it was designed by C. V. Maxwell, structural engineer. It was designed in such a way that no one would fall off the roof with the counter-weights present. With as much as two feet projecting beyond the roof from a 12-foot, 6-inch wall, it would more than support the load used there (Tr. 37). He testified that on this type of scaffold, a tieback was not important because the only way it would pull off the roof would be for someone to go off quite a distance and start pulling it and tugging it endways. He stated the weight of about 100 pounds takes a tremendous amount of upheaval to pull it over (Tr. 37). He made the flat assertion it could not come off the roof (Tr. 37). The scaffold, he stated, was different from one that sticks out and has pop-up jacks on each eight feet of it. He stated such scaffolds must be anchored because they can be pulled off the building (Tr. 37, 38). He stated there is no connection between the roof and the beams (Tr. 39). According to the witness, the weight [*11] was holding it in place, and he said they have followed such practice for 30 years (Tr. 39). The two beams going off the roof to which the weights were attached were, according to said witness, outriggers or lookout poles; but he stated it was not an outrigger scaffold. He defined it as a two-point suspension scaffold held on by outrigger beams, rather than an outrigger scaffold (Tr. 39). He defined a two-point suspension scaffold as one that has a ladder-type stage on it. He stated it is like a painter's stage and can be made out of only planks. It has a hoist of some kind at each end. He stated that on the other hand, outrigger scaffolds might have 30 or 40 beams sticking out over the building; each one of them would have two cables tied to it and usually two hand-operated pumps. They are planked across and then pumped up as a bricklayer or stonemason does his work. Respondent introduced two exhibits to illustrate the scaffold.

The respondent contends that the scaffold is not an outrigger scaffold and said part of the standard does not apply. There is a conflict in the evidence as to whether or not the scaffold was what is defined in the standard as an outrigger scaffold. [*12] It was supported by outriggers, and it appears that the method of support is the particular thing referred to in the standard. The standard sets forth what is required for safety in case an outrigger scaffold is being used. It is required that outrigger beams shall extend not more than six feet beyond the face of the building, and that the inboard end of outrigger beams measured from the fulcrum point to anchorage point should be not less than one and one-half times the outboard end in length. The beam shall rest on the edge, sides shall be plumb and edges shall be horizontal. The fulcrum point of the beam shall rest on a secure bearing at least six inches in each horizontal dimension. The beam shall be secured in place against movement and shall be securely braced at the fulcrum point against tipping. The inboard ends of the outrigger beams shall be securely anchored either by means of struts bearing against sills in contact with the overhead beam or ceiling, or by means of tension members secured to the floor joists underfoot, or by both, if necessary. The inboard ends of the outrigger beams shall be secured against tipping, and the entire supporting structure shall be securely [*13] braced in both directions to prevent any horizontal movement.

Respondent's proof is to the effect that because of the balance and weight of the scaffold, it could not be pulled off of the roof. The compliance officer, a professional industrial engineer, testified that the situation produced a hazard. Fulcrum points were resting on three stacked two-by-four-inch boards. It was secured in one horizontal direction only; and, therefore, there was no support in each horizontal direction of at least six inches, as required by the standard. They were not attached to the roof or the top of the building in any manner. They simply rested on the metal roofing. There was no type of bracing or anchoring. The photographs introduced into evidence substantiate this testimony. Admittedly the requirements of said standard have not been met. The position of the respondent that the scaffold is not an outrigger scaffold cannot be sustained in view of the fact that admittedly the scaffold was hung by outrigger beams. In the event the scaffold came off of the roof, it not having been in any way secured to the roof, the employees would probably suffer very serious injury or death.

An outrigger [*14] scaffold is defined in standard 29 C.F.R. 1926.452(23) as follows:

". . . A scaffold supported by outriggers or thrustouts projecting beyond the wall or face of the building or structure, the inboard ends of which are secured inside of such building or structure."

A two-point suspension scaffold is defined in standard 29 C.F.R. 1926.452(34) as follows:

". . . 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."

It will be observed that said definition makes the question of whether a scaffold is an outrigger scaffold dependent upon the type of support which it has. The scaffold in the case at bar would appear to be a hybrid. The parties are in agreement that it is a two-point suspension scaffold supported by outriggers.

It will be observed that the scaffold in the case at bar meets the definition of "outrigger scaffold," in that it is a scaffold supported by outriggers or thrustouts projecting beyond the wall or face of the building or structure. It meets the definition of "two-point suspension [*15] scaffold" (swinging scaffold), in that it is suspended from overhead support so as to permit the raising or lowering of the platform to the desired working position by tackle or hoist.

The purpose of standard 29 C.F.R. 1926.451(g)(1) and (2) would appear to be to properly secure outrigger beams and to have the outrigger beams properly constructed and utilized. The details of the scaffold do not appear in said sections of the standard to be involved, but the proper method of securing is the subject dealt with in said section. The outriggers have not been secured in the case at bar as required by said subsections of the standard; and, therefore, said subsections have been violated.

It is further the position of the complainant that secondary means of anchorage installed at right angles to the base of the building for ropes supporting the scaffold platform were not installed and secured to a structurally sound portion of the building. It was alleged that this was a violation of subsection (i)(4) of standard 29 C.F.R. 1926.451. Said subsection deals with "swinging scaffolds, two-point suspension scaffolds." The scaffold in the case at bar is a swinging scaffold, and the parties [*16] agree that it is a two-point suspension scaffold. It is suspended from overhead support so as to permit the raising or lowering of the platform. Subsection (i)(4) of standard 29 C.F.R. 1926.451 requires that tiebacks of three-forths 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. Notwithstanding the fact that the scaffold is secured by outriggers, the problem toward which this section of the standard is directed applied to two-point suspension or swinging scaffolds, which definition is met by the scaffold in question.

Mr. Chandler testified that there was no secondary means of anchorage of the block and rope over to the top of the building or the roof (Tr. 15, 16). He stated there was no kind of tieback present on either of the two beams (Tr. 16). Mr. Farris testified that on this type of scaffold a tieback was not important because it could not be pulled off the roof due to the weight and balance (Tr. 37). He stated this scaffold is different from one that sticks out and has pop-up jacks on each eight feet of [*17] it. He alleged that those must be anchored because they can be pulled from the building (Tr. 37, 38). He stated the weight was holding it in place, and that is what has been done with scaffolds he has worked with for 30 years (Tr. 39). He stated that it is a two-point suspension scaffold, not an outrigger scaffold, but that it is a scaffold with outrigger beams (Tr. 39, 40).

He stated a two-point suspension scaffold is one that has what is called a stage. It has a hoist of some kind at each end. He stated an outrigger scaffold might have 30 to 40 beams sticking out over the building, and each one of these beams would have two cables attached to it and two hand-worked, usually hand-operated, pumps (Tr. 40).

Admittedly, respondent has not complied with standard 29 C.F.R. 1926.451(i)(4). The standard has been violated, and it appears that the standard applies to the scaffold in this case.

As above-stated, the scaffold has some attributes of an outrigger scaffold and some attributes of a two-point suspension scaffold. The attributes it has of both would appear to be those which the standard is seeking to reach in the cited subparts of said standard and, therefore, both subsections [*18] (g)(1) and (2) and subsection (i)(4) are applicable to the scaffold in this case.

Mr. Chandler testified that on the roof were four hugh air-conditioning units. He did not know whether they were of substantial weight, and ropes from the scaffold could have been tied to them, providing a secondary means of anchorage for scaffold ropes. It therefore appears that the condition that there be sometimes to which such ropes could be tied has been met. There was no evidence of respondent to the effect that they were inadequate to hold the weight.

It was also alleged that the employees were not protected by approved safety belts attached to a lifeline securely attached to substantial members of the structure, in violation of standard 29 C.F.R. 1926.451(i)(8).

Mr. Chandler testified that the employees working at said elevation did not have on safety belts attached to lifeliness; and that as a matter of fact, there were no safety belts on the scaffold. He stated that Mr. Coley told him safety belts were not used (Tr. 16). Mr. Coley stated on the stand that neither he nor Mr. Jefferson used safety belts (Tr. 32). It was not contended by the respondent that safety belts were worn; and [*19] this standard therefore, has been violated.

It was further alleged that a guardrail approximately 42 inches high with a mid-rail and toeboard was not installed at the open side of the scaffold, which scaffold was more than 10 feet above the ground, in violation of standard 29 C.F.R. 1926.451(i)(11).

Mr. Chandler testified that the scaffold was an aluminum platform about 20 inches wide and 15 to 20 feet long. On each end were braces or forcing rods extending upward. Into each of the rods or forcing brackets, there was a two-by-four-inch board which ran the whole horizontal length of the scaffold platform. The platform did have a top rail, but there was no mid-rail or toeboard (Tr. 17). Mr. Coley testified that the scaffold was 22 feet high at the highest place sprayed (Tr. 31).

Mr. Watkins, production superintendent for the respondent, testified that the scaffold has a back rail or toeboard (Tr. 35). He alleged that nothing could have fallen from the scaffold (Tr. 35). There was a parallel Manila line in front (Tr. 35). There is no contention that the standard was complied with by having a mid-rail and toeboard, and the scaffold was admittedly worked on at elevations above [*20] ten feet. The allegations of violation of subsection (i)(11), therefore, have been sustained. A penalty in the amount of $70 was proposed for all of the alleged violations of standard 29 C.F.R. 1926.451. In view of the possibility of serious injury in the event of fall and possibly death resulting therefrom, a penalty in the amount of $70 would appear to be minimal.

FINDINGS OF FACT

1. Respondent is a corporation engaged in waterproofing work. Equipment and materials used in said work at Hinds Junior College at Raymond, Mississippi, were in part produced at or transported from points outside the State of Mississippi. Said company is engaged in interstate commerce within the meaning of the Act.

2. Respondent in work at said project maintained a ladder which was used at the southeast corner of the gymnasium for the purpose of applying said waterproofing.

3. Said ladder was not tied, blocked, or otherwise secured. The evidence does not establish that there was anything to which said ladder could have been tied.

4. The scaffold used by employees to apply the waterproofing in this case was a two-point suspension scaffold supported by outrigger beams, said scaffold being [*21] suspended from overhead support so as to permit the raising or lowering of the platform to the desired working position by tackle or hoist.

5. Fulcrum points of the beams did not rest on a secure bearing at least six inches in each horizontal dimension, nor were the beams securely based at the fulcrum point against tipping.

6. There was no anchoring of the inboard ends of the outrigger beams, and the supporting structures were not securely braced in both directions to prevent any horizontal movement.

7. Secondary means of anchorage were not installed at right angles to the face of the building, as ropes supporting the platform were not installed and secured to a structurally sound portion of the building.

8. Air-conditioning units on the top of the building constituted a means whereby the ropes could have been secured.

9. Employees working at an elevation as high as 22 feet did not wear safety belts.

10. The scaffold had a top board but did not have a mid-rail and toeboard at the open side while said scaffold was being used at a height as high as 22 feet.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction [*22] of the Occupational Safety and Health Act.

2. The allegations of violation of standard 29 C.F.R. 1926.450(a)(10) have not been sustained, and said allegations should be dismissed.

3. Standard 29 C.F.R. 1926.451(g)(1) and (2) and (i)(4) apply to the scaffold in this case.

4. The respondent has violated standard 29 C.F.R. 1926.451(g)(1).

5. The respondent has violated standard 29 C.F.R. 1926.451(g)(2).

6. The respondent has violated standard 29 C.F.R. 1926.451(i)(4).

7. The respondent has violated standard 29 C.F.R. 1926.451(i)(8).

8. The respondent has violated standard 29 C.F.R. 1926.451(i)(11).

ORDER

It is therefore ORDERED that:

Allegations of violation of standard 29 C.F.R. 1926.450(a)(10) are dismissed.

The respondent, on or about October 3, 1975, was in violation of standard 29 C.F.R. 1926.451(g)(1).

The respondent, on or about said date, was in violation of standard 29 C.F.R. 1926.451(g)(2).

The respondent, on or about said date, was in violation of standard 29 C.F.R. 1926.451(i)(4).

The respondent, on or about said date, was in violation of standard 29 C.F.R. 1926.451(i)(8).

The respondent, on or about said date, was in violation of standard 29 C.F.R. [*23] 1926.451(i)(11).

A penalty in the amount of $70 is assessed for all of said violations of standard 29 C.F.R. 1926.451. The proposed abatement dates are approved.

Dated this 19th day of July 1976.

JOHN S. PATTON, Judge