THE LANE CONSTRUCTION CORPORATION

OSHRC Docket No. 16320

Occupational Safety and Health Review Commission

April 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

Harrison C. Warren, Vice President, The Lane Construction Corporation, 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 [*2] Judge's decision 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 (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

Judge Chodes properly vacated Citation Number 1 for the reasons stated in his decision which is attached hereto as Appendix A. However, both citations should be vacated because they were not issued with "reasonable promptness" as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6724, June 25, 1976. 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 Judges.

APPENDIX A

DECISION AND ORDER

Thomas H. Tobin, for the Secretary of Labor

Harrison C. Warren, for the Respondent

Chodes, Judge:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational [*3] Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting two citations issued by the complainant under the authority vested by section 9(a) of the Act (29 U.S.C. 658(a)). The citations allege that as the result of the inspection of a place of employment located at the I-195 Construction site, Bi-Level Overpass between 12th Street and Franklin Street, Richmond, Virginia, the respondent is alleged to have violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. 655).

The citation, which were issued on December 8, 1975, alleged that the violations resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register and codified in 29 C.F.R., Chapter XVII, Part 1926. The standards involved will be specifically identified in the following part of this decision.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified of proposed penalties of $800 for each citation, a total [*4] of $1,600.

After respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for hearing at Richmond, Virginia on April 9, 1976.

Stipulations (T-5, 6)

1. The legal name of the respondent is Lane Construction Corporation.

2. Respondent is engaged in the construction business in various states and uses materials and supplies manufactured in different states and therefore is engaged in a business affecting commerce.

3. Respondent's business is large compared to others in business in the same geographical area, and has an average of 1,200 employees.

4. Respondent's net worth during the fiscal year preceding the alleged violations was over $20,000,000.

5. Respondent has a history of one previous inspection in Virginia which resulted in two citations which were not contested.

6. Respondent posted the citation, notice of contest and notice of hearing on its bulletin board.

Summary of Evidence

Citation number 1 charged respondent with the serious violation of the standards set forth at 29 C.F.R. 1926.105(a) and 1926.28(a). These standards provide:

1926.105 Safety nets.

(a) Safety nets shall be provided [*5] when work-places are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

The basis for the citation was the respondent's failure to require the use of protective equipment or safety nets by two employees who were working on a "mobile stripping wagon" and exposed to the hazard of falling over 25 feet.

It was established at the hearing that the worksite was inspected by two of complainant's compliance officers on November 10, 1975. They observed two of respondent's employees working on a bi-level concrete bridge overpass 25 feet 6 inches above the lower deck (T-13). The employees were working on a mobile stripping wagon which was designed to provide scaffolding from which forms on the overpass could be stripped at one location and then [*6] moved on to the next work area. At the time of inspection the men were in the process of erecting scaffolding which was being attached to a putlog anchored to the wagon. To do this the employees stood on the parapet wall and used wrenches to tighten bolts to secure vertical scaffold members. It was necessary to lean over the edge, particularly to tighten the outboard bolt identified on Exhibit R-1 with the number 3 (T-9, 80, Exhibits C-2, 3).

The employees worked without benefit of guardrails, safety belts n1 or safety nets which could prevent a fall. The situation was considered hazardous because it was necessary to hold the scaffold member in one hand and use the other hand to secure the member with a wrench. A slip could cause a fall of about 25 feet (T-11-14).

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n1 One of the employees stated to one of the compliance officers that he had never been issued safety belts (T-12). The other employee stated to the other compliance officer that he was supplied with safety belts but that he did not wear them all the time (T-40).

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Respondent's superintendent observed the employees working during the inspection which took ten to fifteen minutes (T-36-37).

Citation number 2 alleged that respondent committed a serious violation of 29 C.F.R. 451(e)(10) which refers to mobile scaffolds and provides, in pertinent part:

Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent 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.

The evidence in support of this citation showed that on November 12, 1975, two of respondent's employees were preparing to strip forms working from the platform of the scaffold erected as part of the mobile stripping wagon. The platform faced the bridge overpass and there was scaffolding on each side of the platform. However, the back or rear of the platform was unprotected except for a piece of 3/4-inch rope strung diagonally across the platform from a height of about 5 feet to the floor of the platform which was not intended to act [*8] as a guard or rail. The platform was 40 to 50 feet above the ground level (T-21-25, 46, 47, C-4, 6).

The back of the platform, which was about 24 to 28 inches wide and 10 feet long, was unguarded, but guarding was available on the stripping wagon, and after the matter was brought to the attention of respondent's superintendent, guarding consisting of 2 X 4's was put in place (T-25, 46).

Although the back of the scaffold was unguarded, the employees on the platform were wearing safety belts and using lifelines. The compliance officer was of the opinion that since the pertinent standard required that all mobile scaffolds be guarded, guarding was required even though there was no possibility of a fall while an employee was utilizing a safety belt (T-26, 27). It was the compliance officer's opinion that guarding was safer than safety belts and lifelines because the employer would not have to be concerned about whether the men were utilizing the safety belts as all times and guarding would not protect against the fall for up to 6 feet, the length of the lifeline (T-29).

Neil Ewing, OSHA area director, testified that in the situation presented under citation number 2, use of safety [*9] belts was not ideal because an employee who must leave the scaffold for any reason would have to untie the belt and thereby subject himself to the possibility of slipping and rolling off the platform. Also, even with a safety belt on a fall to the end of the lanyard could cause an injury (T-65).

With respect to the appropriateness of the penalties, Mr. Ewing testified that in considering the amount of penalty proposed he considered four factors, namely, gravity, good faith, size and history. The violations were considered serious so that OSHA field operations manual mandated an unadjusted penalty of $1,000 for each violation. With regard to good faith, an adjustment of 10 percent was made (against a maximum allowable of 20 percent) because, while respondent did have a safety program and purchased safety equipment, it did not have formalized safety meetings or take any disciplinary actions against employees who violated safety rules. Because respondent was a large company no adjustment was made for size. There was a history of a previous inspection which resulted in a final order after the expiration of 15 working days, but the violations were not of a serious nature so that [*10] an adjustment of 10 percent (against a maximum of 20 percent) was allowed. Thus, the adjusted proposed penalty was $800 for each violation (T-58-61, Exhibit C-7).

Donald Cross, assistant district manager of the respondent, was the superintendent on the jobsite involved herein. He testified that as part of the respondent's safety program, safety meetings are held from time to time and, on occasion, a job is completely shut down and all persons assembled in the office area for a safety meeting. Memoranda, literature and posters received from the home office and from the insurance carrier were posted where employees can see them. Safety meetings are held evenings with supervisory personnel at which insurance company representatives are present and safety films are shown. New employees are instructed by foremen in safety aspects of their work and are given hard hats and, if needed, safety belts (T-72-75). Mr. Cross supplied safety belts to each employee and asked the employees to wear safety belts in situations where they were exposed to danger. However, if the employees did not comply, they were reprimanded but not punished, because the labor situation being what it was, if an [*11] employee was told to take a day off due to infraction of the safety rules, he would violate the rule purposely to get the day off (T-28, 46, 86, 87, 92).

Mr. Cross further testified that to perform the stripping operation it was necessary to remove the jack (shown on Exhibit R-2 at number 6) which is about 6 feet vertically and about 4 1/2 feet horizontally and weighs 60 to 70 pounds. To do this it is necessary to remove the nut and bolt holding the jack which is accomplished by two men working with the jack and one man above on the bridge deck near the parapet wall (shown on Exhibit R-2 at number 1). While one of the men steadies the jack the other man releases the bolt and both swing the jack out. With a railing or guard in place at the back of the scaffold the work area would be confined and the railing would interfere with the free movement of the jack. The jack requires a lot of maneuvering thus making it possible for the men to slip, drop the jack or have it slip out of their hands (T-81, 82, 85, 97). After the jack is removed, framing members about 16 feet long and plywood 8 feet long have to be removed and raised up to the bridge deck. Whenever stripping operations [*12] are performed the employees are instructed to wear safety belts and tag lines at all times and the employees were wearing the safety equipment on the day of inspection (T-82, 83).

Discussion

The evidence in support of citation number 1 established that two of respondent's employees were working in a hazardous situation, standing on a parapet wall, more than 25 feet above the nearest level below, and leaning over to put scaffolding together. The work was being done without any personal safety equipment and without safety nets. It is true that respondent made safety belts available to its employees, but the evidence shows that it did not take measures to insure that the equipment was utilized when warranted by hazardous conditions.

While respondent admonished its employees when they disregarded safety rules, it never took any disciplinary action. Responsibility for compliance with the Act rests with the employer and failure to enforce safety standards cannot be excused because of lack of employee cooperation. See Secretary of Labor v. Atlantic Gulf Stevedores, Inc., et al., 16 OSAHRC 770.

One element of proof necessary to establish a serious violation is that [*13] the employer knew of the violation or could have known of its presence with the exercise of reasonable diligence. Respondent did not insist on its employees wearing safety equipment. Normal supervision would have disclosed that on the day of inspection its employees were not protected from the falling hazard incident to the work they were performing. Moreover, the respondent's superintendent observed the work of its employees for 10 to 15 minutes without making any effort to stop the work. Insofar as safety nets are concerned, certainly it was obvious they were not being utilized. It is therefore a reasonable inference that respondent knew, or with reasonable diligence could have known, of the presence of the violation.

It would appear that the use of safety belts, which could be tied off to the wagon or otherwise anchored n2 would effectively prevent accidental falls and failure to require their use while working under hazardous conditions is a violation of 29 C.F.R. 28(a). Inasmuch as the use of safety belts would have been practical, a violation of 29 C.F.R. 1926.105(a), which refers to safety nets, cannot be sustained as the effective use of safety belts would make [*14] safety nets unnecessary. See Secretary of Labor v. R.W. Setterling & Sons Company, Docket No. 7377 (5-11-76).

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n2 The exact method of tying off need not be spelled out as the respondent should devise suitable ways to meet the requirements of the standard. See Secretary of Labor v. Buckeye Industries, Docket No. 8454 (12-22-75).

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The penalty n3 of $800 proposed for the violation appears somewhat high in light of respondent's safety program as brought out at the hearing and its efforts to have employees wear safety equipment, albeit without complete success. A penalty of $600 is considered appropriate in light of the criteria set forth in section 17(j) of the Act.

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n3 Section 17(j) of the Act (29 U.S.C. 666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*15]

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Citation number 2 charge respondent with the violation of a standard which requires guardrails on open sides of scaffolds. While admittedly respondent did not guard the back of the scaffold, respondent's employees utilized tied-off safety belts to prevent a fall. The testimony is to some extent contradictory with respect to whether the use of guardrails or safety belts would be the safer practice. Respondent's supervisor testified that the presence of guards would interfere with free movement to perform the stripping operation and could result in an employee slipping and dropping material being handled. Complainant's area director testified that use of safety belts would not prevent a fall while an employee is putting on or taking off the quipment and the there was also the possibility of an injury in case of a fall for the length of the safety belt lifeline. On balance, it is concluded that the use of secured safety belts to perform the stripping operation presented no significant hazard and was at least as effective from a safety standpoint as would be the presence of a guardrail on the scaffold. [*16] It follows that since the violation did not expose the respondent's employees to the hazard of falling contemplated by the standard, a violation cannot be found.

Findings of Fact

On the basis of the citation, notice of proposed penalty, notice of contest, pleadings, stipulations, the testimony and exhibits adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:

1. Paragraphs 1 through 6 of the Stipulations are incorporated herein as findings of fact.

2. On November 10, 1975, at the workplace involved herein, the respondent did not provide personal protective equipment to two of its employees standing and leaning on a parapet wall over 25 feet high to secure scaffold members to a "mobile stripping wagon."

3. Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the facts recited in paragraph 2.

4. Giving due consideration to the size of respondent's business, the gravity of the violations, the good faith of the respondent and the history of previous violations, the appropriate penalty [*17] for the violation referred to in paragraphs 2 and 3 above is $600.

5. On November 12, 1975, at the worksite involved herein, two of respondent's employees were working on a mobile scaffold that was between 40 and 50 feet above the ground level. The back of the scaffold was opensided and did not have a guardrail.

6. The employees of the respondent were wearing secured safety belts and not exposed to the hazard of falling.

Conclusions of Law

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the occupational safety and health standards set forth at 29 C.F.R. 1926.28(a) and is assessed a penalty of $600.

4. Respondent did not violate the occupational safety and health standard set forth at 29 C.F.R. 1926.105(a) and 29 C.F.R. 1926.451(e)(10).

ORDER

Upon the basis of the [*18] foregoing findings of fact and conclusions of law, and upon the entire record it is

ORDERED that the citation issued on December 8, 1975, for violation of the standard set forth at 29 C.F.R. 1926.28(a) is affirmed and a penalty is assessed of $600; and it is further

ORDERED that the citation issued on December 8, 1975, for violation of 29 C.F.R. 1926.105(a) is vacated and no penalty is assessed; and it is further

ORDERED that the citation issued on December 8, 1975 for violation of 29 C.F.R. 1926.451(e)(10) and the proposed penalty of $800 are vacated.

JOSEPH CHODES, Judge, OSHRC

Dated: JUN 23 1976

Hyattsville, Maryland