LIMBACH COMPANY, INC.

OSHRC Docket No. 1612

Occupational Safety and Health Review Commission

November 29, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On June 19, 1973, Review Commission Judge Abraham Gold issued his decision and order in this case. On July 19, 1973, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ), that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error. Accordingly, it is ORDERED that the Judge's decision is affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This respondent was charged with a violation of the Act because of alleged noncompliance with 29 C.F.R. 1926.451(d)(4) which concerns "Tubular welded scaffolds." Such a scaffold is defined in 1926.452(a)(33) as: "A sectional panel or frame metal scaffold substantially built up of prefabricated welded sections. . . ."

Respondent reasonably argues that because its scaffolding was built and used as a mobile unit it fits under 1926.451(e) which concerns "Manually propelled mobile scaffolds," defined in 1926.452(a)(17) as: "A portable rolling scaffold supported by casters." (Emphasis [*2] added.)

This Commission has held that even though occupational safety and health standards may contain some flexibility, they must contain enough specificity to put the respondent on notice as to what is required. Secretary v. McDowell-Purcell, Inc., and Rentenbach Engineering Co., Construction Division, 1 OSAHRC 1033 (1972). That is, a cited standard must be clearly applicable to the facts. Secretary v. Painting Unlimited, Inc. 7 OSAHRC 257 (1974).

That is not the case here. The record shows that this scaffold was a hybrid between the two scaffold definitions mentioned above. Since it was a tubular welded framed scaffold supported by casters. At the time of the inspection, the two rear casters had been temporarily removed so that planks could be put thereunder in order to level the scaffold. The result was substantial compliance with 1926.451(e)(8). n1

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n1 1926.451(e)(8) states:

"Schaffolds used by any person shall rest upon a suitable footing and shall stand plumb. The casters or wheels shall be locked to prevent any movement."

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However, even assuming arguendo that the standard under which respondent was charged is applicable, no violation could be found the eunder because of a lack of specificity. The standard did not provide respondent with fair warning of its requirements.

1926.451(d)(4) states:

Scaffold legs shall be set on adjustable bases or plain bases placed on mud sills or other foundations adequate to support the maximum rated load. (Emphasis added.)

Nowhere in this subsection is the term "plain base" defined. n2 Thus, in order for the respondent to understand what it has been charged with, a source outside the "four corners" of the standard must be consulted.

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n2 The record establishes that scaffold in question did have some type of unadjustable base.

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Complainant argues that even though the charged standard has a term not defined therein, he has shown a generally accepted industry-wide definition thereof. This argument fails for two reasons.

First, [*4] the record shows no generally accepted industry-wide definition of "plain base." Complainant introduced as exhibit C-8 a publication of a manufacturer of scaffolding equipment in which the term was defined. However, this was not a publication of the manufacturer of the scaffold at issue in this case and it does not establish that the manufacturer's definition was generally accepted. In addition, respondent's construction project manager n3 testified that the words "plain base" had no particular meaning in the industry and that the support planking which respondent used could so constitute. Thus, the record merely shows conflicting evidence as to the meaning of this term.

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n3 The record shows that this witness was a mechanical engineer and had four years of work experience in the construction industry.

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Moreover, a standard must clearly state what is required. Our decision in Secretary v. California Stevedoring and Ballast Co., 1 OSAHRC 366 (1972), set forth the rule that employers are entitled [*5] to rely on the clear language of a standard uncolored by additional or subjective criteria. Where this is impossible a violation thereof cannot be established. Secretary v. Tilo Co., 2 OSAHRC 1391 (1973). This Commission cannot enforce a standard where an employer of common intelligence is left to guess as to the conduct required of it. Secretary v. Santa Fe Trail Transport Co., 5 OSAHRC 840 (1973).

The record shows no industry-wide or generally accepted definition of the undefined term "plain bases" which is used in this standard. The employer's definition is just as reasonable as the complainant's. The purpose of this law is to eliminate hazardous working conditions. No hazard was established in this case and the Judge so found. He concluded that there was a violation simply because "the requirements of the cited standard were not met."

It is my view that no violation of the Act can be sustained on the facts in this record. n4

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n4 For the reasons I set forth in Secretary v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528 (1973), and Secretary v. Chicago Bridge & Iron Co.,     OSAHRC     (Docket No. 224, remand decision on January 19, 1973), the decision below should also be reversed because the respondent was not given an opportunity to accompany the compliance officer on the inspection of the worksite pursuant to section 8(e) of the Act. 29 U.S.C. 657(e).

[*6]

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[The Judge's decision referred to herein follows]

GOLD, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ) wherein Respondent is contesting one alleged nonserious violation cited by Complainant on September 29, 1972 under the authority of Section 9(a) of the Act. Hearing was held on March 7, 1973 at Pittsburgh, Pennsylvania. The citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of Respondent, located at University and Parkman Streets, Pittsburgh, Pennsylvania and described as the Natural Science Building construction site, University of Pittsburgh, Respondent violated Section 5(a)(2) of the Act by failing to comply with four safety standards.

Respondent filed a notice of contest only as to item number 4 of the citation, for which a $40 penalty was proposed by the Secretary. Since the other items in the citation and penalties proposed therefor were not timely contested, those items and proposed penalties became a final order of the Commission pursuant [*7] to Section 10(a) of the Act and are not in issue here.

The relevant portion of the citation reads:

Item number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

4 -- 29 CFR 1926.451(d)(4) -- Failure to set scaffold legs on an adjustable base or plain base. Location: 7th floor ventilation shaft -- a scaffold without bases on the supporting legs was observed. -- October 5, 1972.

The Complaint charges that the standard was violated on August 30, 1972, in that a tubular scaffold on the seventh floor positioned above a ventilation shaft extending to ground level had no base plates and was positioned on a wooden plank inadequate to support the load.

Section 1926.451(d)(4) reads:

(d) Tubular welded frame scaffolds.

(4) Scaffold legs shall be set on adjustable bases or plain bases placed on mud sills or other foundations adequate to support the maximum rated load.

The parties moved jointly that certain corrections be made in the transcript of hearing. The motion was granted.

It was stipulated by the parties that Respondent is a Pennsylvania corporation with its principal office at Pittsburgh; that [*8] it is engaged in mechanical contracting, a business affecting commerce as defined in Section 3(3) of the Act; that Respondent maintained a workplace at the Natural Science Building, University and Parkman Streets, Pittsburgh, Pennsylvania; and that the scaffold referred to in the citation is owned by Respondent and was used by Respondent's employees on the date of the inspection.

Respondent had 21 employees at the site at the time of the inspection (Tr. 49), conducted on August 29 and 30, 1972 (Tr. 13, 41).

The scaffold in question, of tubular welded construction (Tr. 120), came equipped with casters (wheels), and was manufactured for use as a manually propelled mobile scaffold (Tr. 95, Exhs. C-1, R-1); it consisted of two metal end frames (bucks) and two cross braces, the latter connecting the end frames; suitable planking extended from buck to buck to constitute the work platform (Tr. 14).

At the time of inspection the scaffold was on the seventh floor of the building, standing over a shaft that ran up through all the floors (Tr. 14, 91); two employees of Respondent were then working on the scaffold (Tr. 14, Exh. C-1), installing a tap on the large riser (duct) that [*9] went up through the shaftway (Tr. 92). The installation would normally take about six hours (Tr. 114). This duct was to carry high pressure air conditioning throughout the building (Tr. 91, 93). The shaft was approximately 10 feet long and about six feet wide (Tr. 93, 96). The scaffold was 10 feet long, five feet high and five feet wide (Tr. 95). The riser was made of 18-gauge galvanized iron; it was approximately 48 inches wide and 56 inches long (Tr. 92), and occupied the rear portion of the shaftway (Exh. R-1). It was welded in place (Tr. 106).

The rear buck of the scaffold was flush against the riser (Tr. 105). On one side of the shaftway there were two 14-inch water lines welded into position, and the scaffold was lodged against them (Exh. R-3). The two casters of the rear buck had been removed from the frame legs, and the legs were standing on a 2X10 plank (Tr. 107, Exh. R-3), which was jammed in next to the riser and at either and was flush against the wall (Exhs. R-2, R-3).

Peter Kirin, one of the two employees working on the scaffold when it was inspected, testified that he was a sheet metal worker for 30 years (Tr. 87) and had been a supervisor at times; and that [*10] he had set up the scaffold under the direction of his immediate supervisor (Tr. 115-116). He claimed that he removed the rear casters because the difference in elevation between the front and rear bucks made it very unsafe to do otherwise (Tr. 103), and secondly, lowering the rear buck was necessary because "there was not enough working height in this area to maintain any work on the scaffold" (Tr. 103).

The front buck extended beyond the shaft, protruding into a passageway or corridor (Tr. 97, Exh. R-2). Its casters were locked (Tr. 119).

Photographs show (Exhs. C-1, R-1) that the rear end of the shaft was several inches higher than the surface of the passageway where the front buck was standing, due to the presence of shaft beams which were above floor level. Mr. Kirin noted that there were three steel I-beams laid across the shaft and imbedded in the concrete in the wall on both sides (Tr. 106, Exhs. R-1, R-3), the beams measuring about 5 1/4 to 5 1/2 inches wide and 10 inches high. Resting on and crisscrossing at right angles to the beams were four 2X12 planks, all nailed, with doubleheaded nails, to the 2X10 plank on which the rear legs of the scaffold rested [*11] (Tr. 106).

In addition, Mr. Kirin inserted a 2X4 plank close to the water line wall, using that size because there was not enough room for another 2X12 plank (Tr. 108).

Shims (wedges) were nailed in against the 2X10 to hold it firmly and prevent any movement of the 2X10 (Tr. 110), one shim being nailed to a 2X12 plank at one end and to the 2X4 at the other end (Exhs. R-2, R-3).

Directly beneath the beams, about 20 inches below the planking, was a runout duct which came out from the center of the riser and ran directly under the floor below (Tr. 108).

Mr. Kirin related that at the time of the inspection he had been working on the scaffold for about one and a half hours, and the scaffold had remained plumb (perfectly vertical) and rigid, with no movement (Tr. 111).

Section 1926.451(d)(4) requires the legs of tubular welded frame scaffolds to be set on "adjustable bases or plain bases," terms not defined in the regulations. As described by Compliance Officer Moore (Tr. 22) and Bulletin PSS -- 61 R (Exh. C-8), a publication of Patent Scaffolding Company, a Division of Harsco Corporation, manufacturer of scafffolding equipment, a plain base is a metal base plate, about 8X8 inches, [*12] with a pipe welded to the center of the plate; the pipe is about 1 1/4 inches thick and about 5 inches high, and has a 1/2 inch hole drilled through the middle, about 1 1/2 inches from the top so that when the pipe telescopes into the bottom of the end frame a pin can be put through the pipe and the leg to prevent dislodgement; the plate has a hole at each of the four corners for nailing to sills; the nails are driven in about an inch and are bent back and down over the edges of the base plate (Exh. C-3). That type of base plate costs $1.50, and is intended for use on level surfaces (Exh. C-8).

An adjustable base is a combination base plate and adjusting screw for height (Exh. C-8).

Respondent argues that the cited standard is inapplicable here because it relates only to fixed, rather than mobile, scaffolds and he contends that the removal of two of the casters did not change the character of the scaffold from a mobile to a fixed scaffold.

29 CFR 1926.451(d) contains safety standards for a tubular welded frame scaffold; Part 1926.451(e) applies to a manually propelled mobile scaffold, defined in 1926.452(a)(17) as follows "A portable rolling scaffold supported by casters." [*13] The scaffold in this case was a tubular welded frame scaffold equipped with easily removable casters. With only two casters, it was no longer "supported by casters" and could not be rolled or propelled by hand; hence, at the time of inspection it was not a manually propelled mobile scaffold, and was subject to the safety standards applicable to a tubular welded frame scaffold.

Respondent claims that the cited standard does not apply to the facts of record, contending that if the scaffold is not mobile, neither is it a tubular welded frame scaffold, since Section 1926.451(d) contemplates only multistory or multilevel scaffolding that remains fixed for long periods. Subsection (d) includes, but is not limited to, multilevel scaffolding.

Excetion is also taken to the applicability of the standard to the alleged hazard, and it is contended that the scaffold as used did not present a hazard.

The inspection was conducted by two officers of the Department of Labor. One of them, Hiland Moore, testified that since the rear legs sat on a 2X10 plank, and not on plain bases, workers moving equipment through the passageway and bumping into the scaffold could throw the scaffold legs off the [*14] plank and thereby throw the employees off the scaffold platform (Tr. 15, 16). The other inspecting officer, William Mason, opined that there was a low probability of such accident occurring (Tr. 50-51).

The purpose of the cited standard is to assure rigidity and adequate support for other than mobile scaffolds. n1 From the testimony and the photographs (Exhs. C-1, R-1, R-2, R-3) it is clear that the scaffold was jammed in at the rear and on both sides. There was little likelihood that the rear legs would be dislodged, and if the back buck had been knocked off the 2X10 plank, it was highly improbable that the workmen on the scaffold would fall through the spaces in the shaftway, what with beams and planks crisscrossing it. However, even though the scaffold in question remained rigid and apparently was adequately supported as of the time of inspection, the requirements of the cited standard were not met. The difference in elevation in the area presented a problem for Respondent, but did not excuse noncompliance with the applicable safety standard. On this record, the failure to place the rear legs of the scaffold in question on an adjustable base or plain base was a [*15] violation of 1926.451.

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n1 For manually propelled mobile scaffolds, Section 1926.451(e)(8) requires:

"Scaffolds in use by any persons shall rest upon a suitable footing and shall stand plumb. The casters or wheels shall be locked to prevent any movement."

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A penalty of $40 was proposed by the Secretary. Since a minor monetary penalty for a nonserious violation of low gravity, as in the instant case, would not serve to accomplish the purposes of the Act, no penalty will be imposed.

FINDINGS OF FACT

1. Respondent corporation is and at all times pertinent herein was a Pennsylvania corporation which maintained its principal office at Pittsburgh, Pennsylvania, engaging in mechanical contracting, a business affecting commerce.

2. At all times relevant to this action Respondent had under its operation or control a workplace located at the Natural Science Building, University of Pittsburgh.

3. The said workplace was inspected by the Department of Labor on August 29 and 30, 1972.

4. On August 30, 1972 two of Respondent's [*16] employees were working on the platform of a scaffold owned and controlled by Respondent; the scaffold was of tubular welded frame construction, equipped with casters for use as a manually propelled mobile scaffold, and was positioned over a shaft on the seventh floor.

5. One of these two employees, acting under the direction of his immediate supervisor, removed the two casters of the rear metal frame of the scaffold and placed the scaffold's rear legs not on adjustable bases or plain bases but on a 2X10 plank which was held in place firmly.

6. The front legs of the scaffold retained casters, which were locked.

7. The front frame of the scaffold protruded into a passageway; workmen moving equipment through the passageway could have bumped into the scaffold, thereby dislodging the rear legs from the 2X10 plank and throwing Respondent's employees off the scaffold platform, although there was a low probability of such an accident.

8. Respondent failed to comply with the applicable safety standard at 29 CFR 1926.451(d)(4).

9. No penalty should be assessed for said violation, since imposition of a minor monetary penalty for a violation of such low gravity would not serve [*17] to accomplish the purposes of the Act.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On August 30, 1972 Respondent was in violation of Section 5(a)(2) of the Act for failing to comply with the safety standard at 29 CFR 1926.451(d)(4).

3. It is appropriate, in accordance with Section 17(c) and (j) of the Act, to impose no penalty for the noncompliance with 29 CFR 1926.451(d)(4).

ORDER

It is ORDERED that item 4 of the citation be AFFIRMED and that the penalty proposed therefor be VACATED.