CHILDRESS PAINTING COMPANY, INC.

OSHRC Docket No. 16218

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr. Regional Solicitor

Charles R. Svobada, 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. 9507, 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

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

Robert S. Bass, Trial Attorney, U.S. Department of Labor, for Complainant

Charles R. Svoboda, for respondent

Cronin, Judge, OSHRC: This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act) involving an inspection by the U.S. Department of Labor of a respondent worksite at Centennial Drive, McPherson, Kansas on November 25, 1975. As a result of this inspection, a citation, characterized as "SERIOUS" and alleging violations of 1926.451(e)(10) and 1926.451(e)(4), was issued to respondent on December 3, 1975. A Notification [*3] of Proposed Penalty issued the same date proposes a $550.00 penalty.

The alleged violations are described in the citation as follows:

Standard, regulation

or section of the Act

allegedly violated

Description of alleged violation

The employees working on a metal

platform approximately two (2)

feet wide and twenty-four (24)

feet in length supported at

each end by a free-standing

mobile scaffold tower, located

in areas seven and eight of

the building under construction,

were exposed to potential hazards

due to the following conditions:

1926.451(e)(10)

(a) The scaffold tower platforms

and the metal platform between

the scaffold towers approximately

17 feet and seven inches above a

concrete floor and over equipment

stored in the area were not provided

with standard guardrails

and toeboards at all open sides

and ends. Employees were not

protected by other equivalent

means at all times.

1926.451(e)(4)

(b) The scaffold tower platforms

were not tightly planked for the

full width of the scaffold.

Standard 1926.451(e)(10), as promulgated by the Secretary, provides:

Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent [*4] protection), approximately 42 inches high, with a midrail, of 1 X 6 inch lumber (or other material providing equivalent protection), 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.

Standard 1926.451(e)(4), as promulgated by the Secretary, provides:

Platforms shall be tightly planked for the full width of the scaffold except for necessary entrance opening. Platforms shall be secured in place.

The hearing in this case took place on April 1, 1976, at Wichita, Kansas and both parties submitted Proposed Findings of Fact and Conclusions of Law on May 24, 1975.

Jurisdiction and Issues

Respondent does not contest this Commission's jurisdiction, and the only issues presented by this record are:

Whether the respondent was in violation of the cited standards, as alleged, and, if so, what penalty, if any, is appropriate?

Discussion

A. Alleged "SERIOUS" Violation

Standard 1926.451(e)(10) mandates the installation of guardrails on all open sides and ends of scaffolding [*5] used on manually propelled mobile scaffolds whenever the scaffolding is more than 10 feet above the ground or floor level. Previously, the Commission has relieved employers of similar guardrail requirements when the work can not be performed with a guardrail or similar physical barrier in place. Secretary v. Underhill Construction Corp., No. 2232, 15 OSAHRC 695 (1974) n1; Secretary v. W.B. Meredith, II, Inc., No. 810, 9 OSAHRC 245 (1974) Cf. Secretary v. Warnel Corporation, No. 4537 (1976). Alleged violations for non-compliance with mandatory requirements also have been vacated by the Commission when an employer affirmatively asserts and establishes by a preponderance of the evidence that the safety or health of his employees would be endangered rather than protected by compliance with a particular standard in light of the operative facts. Secretary v. Industrial Erectors, Inc., No. 703, 6 OSAHRC 154 (1974); Secretary v. American Bridge, Division of U.S. Steel Corp., No. 2249, 12 OSAHRC 22 (1974).

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n1 Commissioner Cleary, the author of that opinion, however, indicated recently in Warnel Corp., infra (concurring opinion), that he ordinarily would "decline to entertain an impossibility defense until the variance procedures of the Act have been exhausted."

[*6]

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In this Judge's view, an employer also should not be issued a citation for failing to install guardrails on manually propelled mobile scaffolding, even if their installation is possible and would not diminish safety, provided that his employees are effectively protected against the hazards covered by the guardrail standard. Certainly, issuance of a citation and affirmation of a violation serves no useful statutory purpose and would be unwarranted in a situation where employees are utilizing equivalent or greater protection. At most, failure to install a guardrail under those circumstances should constitute only a de minimus violation, and issuance of a notice in lieu of a citation would be more appropriate.

When an employer, however, decides to provide other equivalent means of protection instead of complying with the guardrail standard, he must bear the sole responsibility of assuring the elimination of the hazards covered by that standard. He will not be relieved of his mandatory compliance obligation unless his employees actually are receiving equivalent or greater protection.

The record [*7] evidence in this case establishes violations of 1926.451(e)(10) and 1926.451(e)(4). The rail and toeboard guarding provisions of 1926.451(e)(10) are directed to reducing the danger of employees falling off open-sided scaffolding platforms and the danger of materials or tools falling onto employees passing beneath the open sides. Instead of installing standard railings on the Picboard scaffold, however, the respondent chose to protect its employees from these dangers by establishing a safety protection system whereby employees would be required to use safety belts and lines whenever working on, or traversing, the scaffold. This Judge believes that respondent's employees would have been adequately protected against the hazard of falling to the floor below if this system had been continuously employed on November 25, 1975. n2

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n2 See Warnel Corp, supra at p.15 (concurring opinion) where protection afforded by use of safety belts and lines was equated with the fall protection furnished by guardrails.

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Two employees, however, were observed on November 25, 1975, traversing the Picboard with their safety belts and tie-off lines not positively secured. At that point in time, therefore, respondent employees were exposed to the hazard of falling some 17 feet to the cement floor below. n3 Unquestionably, if an employee had fallen, his fall could have resulted in "serious" physical harm.

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n3 When observed, the employees were not working over stored construction material.

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Respondent's primary defense appears to center on its contention that its general superintendent was unaware that employees were violating respondent's standing instructions by not tying off with their safety belts and lines at all times. n4 Respondent's superintendent, however, was aware that the guardrails were not installed; therefore, respondent's knowledge of the presence of a violation of the guardrail standard was established. As previously noted, the fact that respondent did not know that employees were not effectively using an equivalent [*9] means of protection will not excuse compliance with the guardrail standard nor will it preclude a finding of a "serious" violation. An employer either must comply with the guardrail standard whenever required and possible or his employees actually must be protected from the hazards covered by the standard.

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n4 Respondent's other contention in its notice of contest that guardrails were available but not yet installed, is not borne out by the record evidence.

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Respondent's contention that the truss lines constituted the "equivalent" of a standard railing is considered without merit. To be classified as "equivalent", the physical barrier protection afforded must be substantially similar to that provided by a "standard" railing. Obviously, due to the height of the truss line above the Picboard (5 feet) and the complete absence of intermediate protection, the truss lines provided less fall protection than a "standard" railing (approximately 42 inches high) and, therefore, can not be considered the "equivalent".

Because [*10] the respondent established that there was no potential danger to respondent's employees from falling materials or tools, the absence of toeboards on November 25, 1975, is not considered a violative condition.

An other than "serious" violation of 1926.451(e)(4) will be found. It is undisputed that the platforms of the mobile scaffold towers were not tightly planked to their full width. Sharp disagreement, however, arises with respect to the width of the opening resulting from respondent's non-compliance with the standard's requirements. The compliance officer estimated it to be 30 inches wide, while respondent's superintendent estimated the opening to be a "foot" wide. This measurement assumes significance because the width of the opening is crucial to a determination whether the opening resulting from violation of this standard could result in serious physical harm. If the opening was only a foot wide as contended by respondent, it is unlikely that serious physical harm would have resulted if an employee had stepped into the opening. In view of the conflicting testimony on this point, this Judge finds that the Secretary has failed to establish a "serious" violation of 1926.451(e)(4) [*11] by a preponderance of the evidence.

B. As to Penalty

All evidence relating to the four factors prescribed by section 17(j) of the Act (29 U.S.C. 666(i)) in assessing penalties, the size of respondent's business, gravity of the violation, the good faith of respondent, and its prior history of violations under the Act, have been considered.

Respondent employs 25 persons. Respondent apparently has been previously inspected by the U.S. Department of Labor, but the extent and nature of its prior history of violations are unknown. Also, there is nothing on this record to indicate an absence of good faith on the part of respondent. Despite the relatively brief duration of employee exposure to the falling hazard, the gravity of the violation was moderately high. Therefore, a penalty sufficient to assure respondent's future compliance with the guardrail standard is warranted. Based on the foregoing, this Judge believes a single penalty of $275.00 is appropriate for respondent's violations of 1926.451(e)(10) and 1926.451(e)(4).

Findings of Fact

Upon the credible evidence of record, the following facts are found; and Proposed Findings of fact submitted by the parties [*12] inconsistent therewith are denied.

1. On November 24 and 25, 1975, respondent employees were engaged in spray painting the structural beams and roofing area of a building under construction at Centennial Drive, McPherson, Kansas. They were working off an aluminum "Picboard" approximately 2 feet wide and 20 feet long, the ends of which were suitably secured to two free standing manually propelled mobile scaffold towers (Tr. 21, 22, 23, 24, 26, 33, 42, 45). The Picboard was approximately 17 feet 7 inches above a concrete floor and lacked standard quardrails and toeboards on all open sides. Each tower was approximately five feet wide with standard hook-on boards forming the tower platform. These platforms were not planked to their full width and, when employees stepped off the Picboard to those tower platforms, they were required to step across an opening estimated variously as 12 to 30 inches wide and six feet long (Tr. 21, 24, 26, 33, 45, 57-58, 65).

2. On November 24, 1975, when inspecting the work areas of the general contractor, the compliance officer observed one respondent employee walking across the Picboard between the two mobile scaffold towers. At that time he was [*13] exposed to a hazard of falling off the Picboard scaffold to the floor below due to the absence of standard guardrails (Tr. 14, 22, 33; Exhibit C-1)

On November 25, 1975, while accompanying Mr. Hunt, the respondent's superintendent, on an inspection of the workplaces of respondent, a subcontractor, the compliance officer observed two respondent employees working off the same Picboard scaffold board (Tr. 14). When walking to their work positions, the two employees were sometimes exposed to a hazard of falling off the Picboard scaffold due to the absence of standard guardrails and failure to tie off with their safety lines. Upon arriving at their work position they would secure their safety belts to safety lines wrapped around the bar joists. At other times, when moving from one work position to another, the employees would securely snap the hooks of their safety lines to the edge of the bar joist beam and slide them along with them. On these latter occasions the employees were protected from falling to the floor below. (Tr. 22, 33, 34).

3. Respondent's general superintendent knew that there were no guardrails installed on the Picboard scaffold but did not know that employees [*14] were not continuously tied off by their safety lines (Tr. 47-48, 61). Respondent requires its employees to tie off "at all times" when working in high places; employee failure to comply with this requirement can result in a "severe reprimand or it can very well be grounds for dismissal" (Tr. 48, 50).

4. In the compliance officer's opinion the hazard of falling to the floor below was eliminated on November 25, 1975, when respondent's general superintendent at the compliance officer's suggestion instituted and prescribed a two safety line system for each employee (Tr. 35-36).

5. It was possible to install guardrails and toeboards on the Picboard on November 25, 1975 but, in order to move the mobile scaffolding to the next area of work, any guardrails in position would have had to have been removed due to the presence of various lines of temporary wiring and then reinstalled (Tr. 36-37, 50-52).

6. The record evidence does not establish that the use of standard guardrails on the Picboard on November 25, 1975 would have resulted in a hazard greater than the falling hazard created by their absence.

7. When not tied off by means of safety belts and lines, respondent employees were [*15] exposed to a falling hazard due to the absence of standard guardrails. If an employee had fallen off the Picboard scaffold to the concrete floor below on November 25, 1975, there was a substantial probability that serious physical injury or death could have resulted.

8. No tools, with the exception of the paint sprays were being utilized on the Picboard, and there was no indication that persons were working below the Picboard (Tr. 54-55).

9. The bottom of the trusses which ran parallel to the Picboard were approximately five feet above the level of the Picboard and two to three feet in front of, and behind, the employees (Tr. 53, 59, 64, 68). The employees could reach out and "grab" the bottom of the trusses (Tr. 53). In the general superintendent's opinion, these trusses were the equivalent of a guardrail (Tr. 59).

Conclusions of Law

1. On November 25, 1975, respondent was in violation of 29 C.F.R. 1926.451(e)(10), and this violation was "serious" within the meaning of 29 U.S.C. 666(j).

2. On November 25, 1975, respondent was in violation of 29 C.F.R. 1926.451(e)(4), but this violation was not "serious" within the meaning of 29 U.S.C. 666(j).

3. A total [*16] penalty of $275.00 for respondent's violations of 29 C.F.R. 1926.451(e)(10) and 29 C.F.R. 1926.451(e)(4) is appropriate.

ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. Violations of 29 C.F.R. 1926.451(e)(10) and 29 C.F.R. 1926.451(e)(4) are AFFIRMED, and a total penalty of $275.00 ASSESSED.

James A. Cronin, Jr., Judge, OSHRC

Dated: June 2, 1976