AMERICAN CHIMNEY CORPORATION

OSHRC Docket No. 1683

Occupational Safety and Health Review Commission

October 9, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of an April 12, 1973, decision of Judge Joseph Chodes pursuant to 29 U.S.C. 661(i). At issue are whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a) and whether the respondent was denied procedural due process by the failure of the government inspector to present appropriate credentials and afford an opportunity for accompaniment as provided for in 29 U.S.C. 657(a) and (e).

We hold that the respondent waived consideratioin of whether the citation was duly issued by not raising that defense in the proceedings below. Secretary v. Chicago Bridge and Iron Company, We also find that the inspector conducted the inspection in a lawful and reasonable manner and that the respondent was not prejudiced thereby. Secretary v. Ron M. Fiegen, Inc., Secretary v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528 (1973). The Judge's decision is therefore affirmed.

Chairman Moran would reverse for the reasons set forth [*2] in his separate opinions in Secretary v. Ron M. Fiegen, Inc., supra; Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc., Secretary v. Chicago Bridge and Iron Company,

[The Judge's decision referred to herein follows]

CHODES, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), in which the Respondent is contesting two Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Sections 9(a) of the Act. The Citations allege that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at the Campbell Soup Company, 100 Market Street, Camden, New Jersey, the Respondent has violated Section 5(a(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations, which were issued on November [*3] 1, 1972, allege that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR Part 1910. The Citations alleged serious violation of 29 CFR 1910.25(c)(3)(iv)(c)(4) for failure to reinforce sectional ladders with a metal plate and non-serious violations of 29 CFR 1910.25(d)(1)(x) for failure to remove from service ladders with cracked rungs; 29 CFR 1910.25(d)(2)(iii) for failure to place a ladder on secure footing; and 29 CFR 1910.28(a)(3) for failure to provide guardrails and toe boards on a scaffold.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated November 1, 1972, from William J. Dreeland, Area Director of the New Jersey area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the violations alleged in the total amount of $910.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at New York, New York, on February 21, 1973.

COMPLAINT AMENDED

At the hearing the Judge granted [*4] the Complainant's motion to amend the complaint to conform to the proof by showing that inspection of the Respondent's workplace and the violations alleged against the Respondent took place on September 15, 18, 19 and 20, 1972 (T-41, 42).

FACTS STIPULATED

1. The Respondent is a New York corporation with its principal office located at 909 Main Street, Hackensack, New Jersey (T-2).

2. The Respondent is engaged in the business of chimney maintenance (T-3).

3. Respondent's net worth is approximately $30,000 (T-3).

4. Respondent has a daily average of five employees (T-3).

5. No injuries occurred at the worksite at the time the alleged violations took place (T-3).

6. The ladders and scaffolding at the worksite were under the control of the Respondent at the time the alleged violations took place (T-3).

7. The Respondent has no previous history of violations of the Occupational Safety and Health Act of 1970 (T-3).

8. The Respondent violated 29 CFR 1910.25(d)(1)(x) and 29 CFR 1910.25(d)(2)(iii) as alleged in the Citation for non-serious violations (T-3, 4).

DISCUSSION AND EVALUATION OF EVIDENCE

The Respondent has admitted violating two of the standards for which [*5] it was cited, leaving for determination one alleged serious violation and one alleged non-serious violation. The serious violation concerns 29 CFR 1910.25(c)(3)(iv)(c)(4) which deals with portable wooden ladders and provides:

The grooved ends of the sections shall be reinforced with a metal plate of not less than 18-gauge (Manufacturing Standard) material properly secured thereto, and a rivet adjacent to the groove, extending through the depth of the rail, or the equivalent thereof.

Walter E. Wilson, Compliance Officer of the Occupational Safety and Health Administration of the Department of Labor testified (T-8, 9) that he visited the job site at the Campbell Soup Company on September 15, 1972, September 18, 1972, September 19, 1972, and September 20, 1972. On each of these days, except September 19, 1972, when the weather was inclement, he observed that the Respondent's employees were performing maintenance work, putting new iron caps on the tops of two chimneys which were about 240 feet high (T-11, 12). On each chimney there was a single ladder, made up of sections 10 feet long (T-33) going from the base of the chimney to the top (Exhibit C-1, C-2). One section [*6] was placed on top of another to achieve the desired height. The ladders were lashed in place by used sash cord to the lightening cable on the chimneys (T-13). There were two plates fastened on the outside of the side rails of the ladder but the plates did not reinforce the groove at the end of each ladder (Exhibit C-6). The outside plates would not prevent the rail from splitting, which was the intent of the standard, but plates at the groove on the flat ends of the side rails would prevent this from happening (T-17, 18, Exhibit C-7). While the plates on the outside of the side rails utilized by the Respondent would prevent the side rail from coming apart, they would not prevent the side rail from splitting, and in so doing, a rung could move out of place, with dire consequences (T-18-20, 35).

The non-serious violation that is being contested concerns 29 CFR 1910.28(a)(3) which, referring to safety requirements for scaffolding, provides in pertinent part, that

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . .

Mr. Wilson testified (T. 20, 21) that there was circular scaffolds on each chimney, [*7] near the top of one chimney approximately 240 feet high and somewhat lower on the other chimney. There were two men working on each scaffold. Neither scaffold had a guardrail or toeboard. Instead, there was rope loosely looped through posts on the scaffold.

Paul Walthers, the Respondent's treasurer, testified (T-43) that the Respondent is a third generation chimney business and that since 1960, when he started with the firm, there had been no serious accidents. The Respondent does everything it can to follow the recommendations of its employees and its insurance company to "make things safe," and abides by all laws. So far as he knows most chimney companies use the same type of ladders that he used on the job in question. The steel plates which were on the ends of the ladders he used were there to stop the ladder from breaking away from the other ladder.

With respect to the absence of guardrails and toeboards on the scaffolds, Mr. Walthers testified (T-44) that he relied on a 3/4 inch Manila rope or a 1/2 or 3/8 inch wire rope. He did not consider toeboards necessary for safety of the employees as their purpose was to prevent "tools from being kicked off." To safeguard [*8] persons near the chimneys on the job site he had an employee on the ground to warn people away.

In the opinion of the Judge, the evidence establishes that the Respondent violated the two contested safety standards as alleged by the Complainant. The Respondent argues in its brief that the metal plates used on the outside of the side rails complied with the requirements of the standard. However, the standard requires reinforcement by metal plates of the grooved ends, which Mr. Wilson, the Compliance Officer, testified was not accomplished with the plates utilized by Respondent. It may well be that Respondent considered the iron plates used on its ladders were safe, nevertheless, the ladders did not meet the criteria set forth in the regulations and in the absence of a variation issued by the Complainant, it must be found that a violation has been established. Similarly, with respect to the absence of guardrails and toeboards on the circular scaffolds, a violation has been established. While the Respondent took other means than those prescribed by the appropriate standard to protect its employees, it was incumbent on the Respondent to comply with the regulations.

The Complainant, [*9] in his brief, raised the question of the validity of the inspection and citation because, while the Compliance Officer was at the Respondent's workplace on September 15, 18, 19 and 20, 1972, he did not contact a representative of the Respondent until September 20, 1972. Under Section 8(a) of the Act, the Complainant is authorized to inspect a workplace "upon presenting appropriate credentials to the owner, operator or agent in charge." In the instant case, the Compliance Officer was unable to contact the employees of the Respondent on the 15th and 18th n1 because they were working on the chimneys, but he did speak to Mr. Gorham, a supervisor, on the 20th and informed Mr. Gorham of the purpose of the visit (T-10). Under the circumstances, the provisions of Section 8(a) did not affect the validity of the inspection or the citation which followed.

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n1 No one was working on the 19th due to inclement weather (T-9).

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Section 8(e) of the Act provides that a representative of the employer and a representative of [*10] the employees shall be given an opportunity to accompany the Complainant's representative during the inspection. The facts in this case show that the Compliance Officer did point out the violations he saw to Mr. Gorham, the Respondent's supervisor. There is no evidence that the Compliance Officer contacted any of the Respondent's employees other than Mr. Gorham as they were working on the scaffolds (T-8, 9). In Secretary of Labor v. Chicago Bridge & Iron Co., Secretary of Labor v. Wright-Schuchart-Harbor Contractors, In the instant case, the Respondent through its supervisor was afforded the opportunity to accompany the Compliance Officer before he completed his investigation and there is no evidence that Respondent was prejudiced in any way. Nor is there any evidence that failure to afford the Respondent's other employees an opportunity to accompany the Compliance Officer was prejudicial [*11] to the Respondent.

PENALTIES

Section 17(j) of the Act provides that in assessing penalties due consideration shall be given to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Mr. Wilson testified (T-19) that he considered the violation of 29 CFR 1910.25(c)(3)(iv)(c)(4), the failure to reinforce the groove ends of the ladder sections, to be a serious violation because, without reinforcement, the side rails could split at the ends and that if this happened, the ladder rungs would move out of the side rails. This would throw a load on the lashing around the lightning cable which the lashing would not hold. Or, if an employee was standing on a rung when it split, he could swing out of place and, if he was not holding onto the side rail, he could fall. Mr. Wilson also testified (T-19) that the Respondent knew of the violation by reason of visual observation of the ladder sections.

Mr. Wilson proposed an unadjusted penalty of $1000 for the serious violation (T-26). He then reduced this amount by 10% by reason of the small size of the Respondent's [*12] business (T-22). An additional allowance of 20% was made for history of previous violations because there was not record that Respondent had had any accidents of significance. No allowance was made for the good faith of the Respondent as Mr. Walthers (the Respondent's treasurer) did not agree to abate the violation within the 30 days as suggested by Mr. Wilson (T-23). The final proposed penalty for this violation was $700.

For the admitted violation of 29 CFR 1910.25(d)(1)(x), failure to withdraw from service defective ladders, Mr. Wilson proposed an unadjusted penalty of $100. He did not consider it a serious violation as he felt that the most that could happen as a result of this violation was a sprained ankel, skinned elbow or something of that nature (T-27). The unadjusted penalty was reduced by 10% for size of business and 20% for the negative history of previous violations, so that the proposed penalty was $70.

With respect to the admitted violation of 29 CFR 1910.25(d)(2)(iii), failure to place a ladder on a secure footing, Mr. Wilson testified (T-28) that he would normally consider this to be a serious violation because of the possibility that the ladder could slip. [*13] However, he did not propose a serious violation because the ladder was secured by a rope which was fairly tight and supported the ladder (T-28). The unadjusted penalty proposed was $100, from which was deducted 30% as with the other violations.

For violation of 29 CFR 1910.28(a)(3), failure to provide guardrails and toeboards for the circular scaffolds on the chimneys, Mr. Wilson testified (T-28, 29) that he did not consider this a serious violation because the looped 3/4 inch rope (T-37) on the scaffolds gave the employees protection in that they could grab the rope and hold on if an accident did happen. Again, Mr. Wilson proposed an unadjusted penalty of $100 with a 30% reduction for size of business and negative history of previous violations.

The penalties proposed by Mr. Wilson were discussed with the Area Director of the Occupational Safety and Health Administration and the penalties were approved.

The Judge is in accord with the Respondent's determination that the failure to reinforce the grooved ends of the ladders used to climb up the chimneys was a serious violation because there was a "substantial probability" n2 that death or serious physical harm could [*14] result from the failure to properly reinforce the grooves. Admittedly, the probability of an accident occurring is less substantial over a short period of time, as for example during the period of the inspection. However, in the light of the expressed purposes of the Act to assure so far as possible every working man and woman in the Nation safe and healthful working conditions by reducing the number of occupational safety and health hazards (see Section (2)(b)(1)) it is necessary to consider the probability of an accident occurring over the long run. Mr. Wilson's testimony was that this could happen. The evidence also establishes that the Respondent, by reason of the presence of a supervisor on the job, knew of the existence of the violation.

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n2 Section 17(k) of the Act provides that a serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result unless the employer did not, or could not with the exercise of reasonable diligence, know of the presence of the violation.

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The evidence is somewhat conflicting with respect to Mr. Walthers attitude toward abatement of the alleged violation due to failure to reinforce the groove ends of the ladders with metal plates. This attitude on the part of Mr. Walthers induced Mr. Wilson to disallow any reduction from the unadjusted penalty of $1,000 for good faith. Mr. Wilson testified (T-23) that Mr. Walthers insisted that abatement take place over a period of months. On the other hand, Mr. Walthers testified (T-44, 45) that he had some new type ladders and had brought some down on the job but they did not fit the old type ladders. Mr. Walthers further testified that it takes six to eight weeks to get the new ladders made up. He has bought 50 new ladders which he is now using. The Respondent has a good safety record, he did utilize iron plates on his ladders, a practice that others in the same line of business also used, and upon being informed of the violation made a good faith effort to obtain ladders which met the requirement of the regulation. A 20% reduction of penalty for this factor is considered to be appropriate. Other than the "good faith" factor, the Judge [*16] is of the opinion that the Complainant's assessment of the proposed penalty for the serious violation is reasonable and appropriate. Accordingly, the Judge is of the opinion that a penalty of $500 for serious violation of 29 CFR (c)(3)(iv)(c)(4) is appropriate.

With respect to the non-serious violations charged against the Respondent, the Judge is of the opinion that even though the Respondent was not allowed any deduction for "good faith" the gravity of the violations admitted by the Respondent and the violation established at the hearing does not warrant any further deduction from the penalty of $70 proposed for each violation. The failure to withdraw defective ladders from service, placing a ladder on an insecure footing, and failure to provide guardrails and towboards on an elevated scaffold, under the conditions present in the instant case, subjected at least four of the Respondent's employees to the possibility of substantial injuries. All factors considered, the proposed penalties of $70 for each of the non-serious violations are considered reasonable and appropriate.

With respect to the non-serious violations charged against the Respondent, the Judge is of the opinion [*17] that even though the Respondent was not allowed any deduction for "good faith," the gravity of the violations admitted by the Respondent and the violation established at the hearing does not warrant any further deduction from the penalty of $70 proposed for each violation. The failure to withdraw defective ladders from service, placing a ladder on an insecure footing, and failure to provide guardrails and toeboards on an elevated scaffold, under the conditions present in the instant case, subjected at least four of the Respondent's employees to the possibility of substantial injuries. All factors considered, the proposes penalties of $70 for each of the non-serious violations are considered reasonable and appropriate.

FINDINGS OF FACTS

On the basis of the Citations, Notices of Proposed Penalties, Notice of Contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of fact:

1. Respondent is a domestic corporation of the State of New York, engaged in the business of chimney maintenance. It's principal place [*18] of business is in Hackensack, New Jersey and many of the materials and supplies used by Respondent are manufactured outside the State of New Jersey.

2. Respondent is a company of modest size having a net worth of approximately $30,000. It has a daily average of five employees.

3. As a result of inspection of a workplace under the operation and control of the Respondent at 100 Market Street, Camden, New Jersey, on September 15, 18 and 20, 1972, the Complainant, on November 1, 1972, issued to the Respondent a Citation for serious violation of 29 CFR 1910.25(c)(3)(iv)(c)(4) and another Citation for non-serious violations of 29 CFR 1910.25(d)(1)(x); 29 CFR 1910.25(d)(2)(iii); and 29 CFR 1910.28(a)(3).

4. On the dates of the inspections four of the Respondent's employees were employed at the workplace.

5. On November 1, 1972, the Respondent was notified by the Complainant of a proposed penalty of $700 for the serious violation and $70 penalties for each of the three alleged non-serious violations, for a total of $910 in proposed penalties.

6. On November 7, 1972, the Respondent filed with the Complainant a notice of intent to contest the Citations and proposed penalties [*19] referred to in Paragraphs (3) and (5) above.

7. On September 15, 18 and 20, 1972, the grooved ends of portable wooden sectional ladders used at the Respondent's workplace to ascend two chimneys about 240 feet in height were not reinforced with a metal plate of not less than 18 gauge material and a rivet adjacent to the groove extending through the depth of the rail. This was a violation of 29 CFR 1910.25(c)(3)(iv)(c)(4).

8. The Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the facts recited in Paragraph (7) above.

9. On the dates mentioned in Paragraph (7) above, Respondent did not withdraw from service at the workplace ladders which had developed defects, nor were the ladders tagged "Dangerous, Do Not Use." This was a violation of 29 CFR 1910.25(d)(1)(x).

10. On the dates mentioned in Paragraph (7) above, a portable ladder used by the Respondent at the workplace was not placed so that the side rails were on a secure footing. This was a violation if 29 CFR 1910.25(d)(2)(iii).

11. On the dates mentioned in Paragraph (7) above, the Respondent did not install guardrails and toeboards at the workplace on all open sides of [*20] two scaffold platforms more than ten feet above the ground. This was a violation of 29 CFR 1910.28(c)(3).

12. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the negative history of previous violations, the appropriate penalty for serious violation of 29 CFR 1910.25(c)(3)(iv)(c)(4) is $500; the appropriate penalty for violation of 29 CFR 1910.25(d)(1)(x) is $70; the appropriate penalty for violation of 29 CFR 1910.25(d)(2)(iii) is $70; and the appropriate penalty for violation of 29 CFR 1910.28(a)(3) is $70.

CONCLUSIONS OF LAW

1. The Respondent is, and 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 is, and 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 cited in 29 CFR 1910.25(c)(3)(iv)(c)(4); 29 CFR 1910.25(d)(1)(x); [*21] 29 CFR 1910.25(d)(2)(iii); and 29 CFR 1910.28(a)(3).

4. The Respondent is assessed a penalty of $500 for violation of the Occupational Safety and Health standards set forth in 29 CFR 1910.25(c)(3)(iv)(4); a penalty of $70 for violation of 29 CFR 1910.25(d)(1)(x); a penalty of $70 for violation of 29 CFR 1910.28(a)(3).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED that

1. The Citation issued on November 1, 1972, for serious violation of 29 CFR 1910.25(c)(3)(iv)(c)(4) is hereby affirmed, the penalty proposed by the Complainant is modified, and a penalty of $500 is assessed.

2. The Citation issued on November 1, 1972, alleging violation of 29 CFR 1910.25(d)(1)(x); 29 CFR 1910.25(d)(2)(iii); and 29 CFR 1910.28(a)(3) is hereby affirmed. The penalty proposed by the Complainant of $70 for each violation is also affirmed.