CITY WIDE TUCKPOINTING SERVICE COMPANY
OSHRC Docket No. 247
Occupational Safety and Health Review Commission
May 24, 1973
Before MORAN, Chairman; VAN NAMEE, Commissioner
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On August 31, 1972, Review Commission Judge William E. Brennan issued a decision in this case holding that the respondent had violated section 5(a)(2) 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) for failure to comply with five occupational safety and health standards promulgated under section 6 of the Act. He assessed a penalty of $350. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
After reviewing the record in this case and the brief filed by complainant, the Commission finds that the Judge erred in finding noncompliance with the occupational safety and health standard published as 29 C.F.R. 1910.28(a)(17) but ruled correctly when he found respondent in violation of the other four occupational safety and health standards.
29 C.F.R. 1910.28(a)(17) provides as follows:
Scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard Wire one-half-inch mesh or the equivalent, where persons are required to work or pass under the scaffolds (emphasis added).
Complainant charges that the respondent was not in compliance with the foregoing because of its failure "to provide guardrail and screen at base of scaffold when working overhead, where persons are required to walk or pass under scaffold."
There is no dispute about the facts in this case. The evidence reveals that three employees of the respondent were working on the top perimeter of a parking garage. They were the only employees of respondent at the job site. There is no evidence that any employee of respondent was working or passing under the scaffolding while work was being done there.
Section 2(b) of the Act states that the Congress declares it to be its purpose and policy in enacting this law ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." The law's preamble states that it is an Act "To assure safe and healthful working conditions for working men and women. . . ."
Congress' intent clearly was to protect working men and women from hazards at their place of employment. To accomplish this each employer is required to provide safe and healthful working conditions to "his employees."
To find a violation of the above-cited occupational safety and health standard on the basis of the facts in this case would be an expansion of the intent and purpose of the Act. There was no evidence that any employee of respondent either worked beneath or walked beneath the scaffold. Admittedly, pedestrians walked beneath the scaffold, but they were not employees of the respondent.
Complainant has published interpretative regulations to cover just this type of situation. One of those regulations which appears in 29 C.F.R. 1910.5(d) states as follows:
In the event a standard protects on its face a class of persons larger than employees, the standard shall be applicable under this part only to employees and their employment and places of employment.
Clearly the applicability of the cited standard cannot be extended to provide protection for pedestrians or any other nonemployee. Only where employees of a cited employer are affected by noncompliance with an occupational safety and health standard can such employer be in violation of section 5(a)(2) of this Act. Such was not the case here.
Accordingly, the Judge's finding of a violation because of noncompliance with the occupational safety and health standard published as 29 C.F.R. 1910.28(a)(17) is vacated. The $350 penalty assessment was based on five separate violations grouped to form a single serious violation. Since all were of approximately equal gravity and one of those five has now been vacated, the Commission assesses a penalty of $280 against respondent.
[The Judge's decision referred to herein follows]
BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter Act), to review a Citation for Serious Violation issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and a penalty based upon the alleged violation proposed by the Secretary pursuant to Section 10(a) of the Act.
The record of this case reflects the following matters:
1. On November 19, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Occupational Safety and Health Administration, issued to City Wide Tuckpointing Service Co., 3110 W. Lisbon Avenue, Milwaukee, Wisconsin, (hereinafter Respondent), a Citation for Serious Violation alleging a violation of Section 5(a)(2) of the Act in that Respondent failed to comply with six Occupational Safety and Health Standards promulgated under Section 6 of the Act as follows:
a) 29 CFR 1910.28(a)(2) Employer failed to provide safe swinging scaffold with sound footing rigged on 10-15 degrees angle at 50 feet above ground level.
b) 29 CFR 1910.28(a)(3) Employer failed to provide guardrails and toeboards.
c) 29 CFR 1910.28(a)(12) Employer failed to provide safe access to scaffold. A drop of 10 feet from level, and 50 feet above ground.
d) 29 CFR 1910.28(a)(17) Employer failed to provide guardrail and screen at base of scaffold when working overhead where persons walk or pass under.
e) 29 CFR 1910.28(a)(26) Employer failed to secure scaffold to permanent structure-improvised, using center pole of station wagon, 50 feet above ground.
f) 29 CFR 1910.28(g)(9) Employer failed to provide lifebelt and lifeline working 50 feet above ground.
An "Immediate" date for correction of these alleged conditions is set forth in this Citation (R.p.1) n1.
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n1 References are to pages in Commission Docket File No. 247; to the transcript of the hearing held herein (Tr. ) and to exhibits in evidence (Exh ).
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2. By his notification of Proposed Penalty also dated November 19, 1971, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose a penalty in the amount of $700.00 for the alleged violative conditions (R.p.2).
3. The Respondent pursuant to Section 10(c) of the Act, through a letter from its sole proprietor dated November 27, 1971, gave notice of his intention to contest the Citation and penalty proposed thereon (R.p.3).
4. Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission on December 2, 1971 (R.p.4).
5. On December 13, 1971, the Secretary filed his Complaint with the Commission and certified service thereof upon the Respondent (R.p.6).
6. By letter dated December 9, 1971, filed with the Commission on December 14, 1971, Antone F. Gregorio, Esq., of the law firm of McCarthy, Gregorio, Murphy and Foley of Chicago, Illinois, noted his appearance on behalf of Respondent and certified compliance with Commission Rules 2200.7(b)(1), 2200.7(i), 2200.5 and 2200.6 (R.p.7).
7. This attorney on January 24, 1972 filed an Answer to the Secretary's Complaint, admitting Commission jurisdiction under Section 10(c) of the Act and denying all other allegations (R.p.8).
8. On January 24, 1972, this case was assigned to Commission Judge Leon J. Moran, notice of said action being given the parties by the Commission the same date (R.p.9).
9. By notice dated January 28, 1972, this case was scheduled for hearing in Milwaukee, Wisconsin for March 29, 1972 (R.p.H-1).
10. On March 6, 1972, the Secretary throug his counsel filed a Notice to take the Oral Deposition of Mr. James Worthem, doing business as City Wide Tuckpointing Service Co., on March 13, 1972, at a designated place in Milwaukee, Wisconsin, pursuant to Commission Rule 2200.25 (R.p.H-5).
11. On March 7, 1972, this case was reassigned to the writer due to the illness of Judge Moran, notice thereof being given to the parties by the Commission on the same date (R.p.10, H-6).
12. On March 10, 1972, the Secretary's counsel filed a motion for an Order requiring the Respondent to appear and have his deposition taken in that Respondent's counsel had advised that Respondent would not appear either pursuant to the prior notice nor at any time to have his deposition taken (R.p. H-9).
13. On March 15, 1972, pursuant to Commission Rules 2200.25 and 2200.28 the undersigned issued an Order and on behalf of the Commission a subpoena directing Respondent's attendance at a specified place on March 23, 1972, to have his deposition taken. At the designated time and place, Respondent James Worthem appeared without counsel. Upon advising that his counsel would not appear, his deposition was taken (R.p. H-10, H-11, H-12, Dep. Tr. pp. 4; 5).
14. The hearing was held as scheduled, James Worthem d/b/a City Wide Tuckpointing Service Co., appearing pro se upon the failure of his attorney of record to appear or to give any notice of his withdrawal from the case, and after an opportunity was afforded Respondent to obtain the services of other counsel and upon his express desire to go forward with the hearing without the services of any counsel. After an extension of time upon the Secretary's request was granted, the Secretary's counsel filed Proposed Findings of Fact, Conclusions of Law and brief on May 18, 1972 (R.p. H-23, H-24, H-25 Tr. 3-8).
Having considered the entire record herein, the representations and admissions of the parties, the transcript of testimony and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following:
FINDINGS OF FACT
1. No affected employees or authorized representative of affected employees expressed any desire at or before the hearing to participate in these proceedings as a party of record (Tr. 2, 3).
2. On September 21, 1971, at approximately 8:30 a.m. the Wisconsin Area Director of the Occupational Safety and Health Administration observed the following events from his office window:
Directly across 5th Street in Milwaukee, Wisconsin is located the Boston Store Parking Garage, a multifloored automobile parking facility, (hereinafter workplace). Three men were observed on the top floor of this garage, in the process of rigging a scaffold. These individuals proceeded to tie the fall ropes or supporting lines of this scaffold to the center post of a station wagon parked on the roof thereof; i.e. to the post of the station wagon body between the front and rear door on one side. The scaffold itself was hanging on the 5th Street side of the garage approximately 8 feet below the top floor level and approximately 65 feet above a sidewalk at ground level and as rigged had a 10 to 15 degree tilt from the horizontal. Two men remained on the roof and one proceeded to get onto the scaffold from the roof level by sliding or shinning down one of the fall or support ropes. No lift belt nor life line was used by the man on the scaffold who proceeded to caulk masonary joints on the top perimeter of this garage. The scaffold was not equipped with any toeboard nor any wire mesh to prevent tools or material from falling from the scaffold onto the sidewalk below. No endrails nor midrails were observed on this scaffold. A piece of loose plywood was resting as a platform on the scaffold (Tr. 24-27, 28).
3. The Area Director took photographs of these events which were admitted into evidence as Exhibits G-1 thru G-4 (Tr. 29-31, 32-33, 36, 37).
4. Director Hanna further observed one eight inch iron pipe and one six-inch "fire rise" or iron pipe, extending above the top floor level of this garage, from the basement thereof approximately 15 feet to the left of the station wagon as depicted in Exhibit G-2 which were considered by him as "permanent parts" of the garage structure, to which the scaffold could have been tied (Tr. 27).
5. Mr. Hanna further observed no barricades on the sidewalk below the scaffold as well as people walking beneath this scaffold (Tr. 28, Exhs. G-3, G-4).
6. After making the above observations, the Area Director ascertained the identity of the general contractor for the masonary repair project, the Service Painting Corporation who had subcontracted the recaulking work to the Respondent. He called the contractor and its Executive Vice-President Mr. Duveneck went to the garage, suspended work operations and sent Respondent's employees to obtain barricades for the sidewalk below the scaffold. The Area Director then observed Respondent's employees placing barricades on the sidewalk and retieing the fall or support lines for the scaffold around the "entire roof of the station wagon" (Tr. 66). Mr. Duveneck then called the Area Director, advised him of what had been done, and was told that the work could proceed based upon the Director's conclusion that although the scaffold was not secured to a permanent structure of the building, there was no likelihood that a 2200 pound station wagon could be pulled over by the scaffold in use. He felt that the conditions he had observed had been corrected satisfactorily (Tr. 44-48, 64-71).
7. After obtaining the name of the subcontractor for this job from Mr. Duveneck, the Area Director called Respondent but obtained an answering service. The following day, Mr. Worthem called the Area Director as requested and was advised that the conditions observed the preceeding day constituted a serious violation of Federal Standards, that some corrections had been made and that there was a possibility of the issuance of a citation. Worthem stated that he was not aware of any violations but that ". . . he would take care of it" (Tr. 67). After the issuance of the Citation herein, Mr. Worthem met with the Area Director and each item therein was reviewed with him. Worthem acknowledged some items, denied others and advised that because he was a very small operator he could not afford the penalty as proposed (Tr. 66-67, 70-71).
8. On November 19, 1971, the Citation for Serious Violation as detailed in paragraph 1, page 1, supra was issued to this Respondent together with a Notification of Proposed Penalty in the amount of $700.00.
The Area Director after testifying to his observations of September 21, 1971, gave the following opinions:
a) Securing the fall or supporting lines of the scaffold to the center post of the station wagon violated the Safety Standard set forth at 29 CFR 1910.28(a)(26) in that the center post was ". . . probably the weakest point in a car, as far as mechanical structure is concerned" (Tr. 40-41) and in any event the center post used was not a "permanent structure" of the building as required by the standard (Tr. 38-41, (Exh. G-5)).
b) No access ladder or equivalent safe access to the scaffold was provided. Employees were forced to climb or shimmey down the fall or support ropes from the roof level to the scaffold, which violated the Safety Standard set forth at 29 CFR 1910.28(a)(12) (Tr. 41-42, Exh. G-6).
c) No safety lifebelts nor lifelines were used by employees which violated the Safety Standard set forth at 29 CFR 1910.28(g)(9) (Tr. 59-60, Exh. G-7).
d) The use of a loose piece of plywood on the scaffold itself as a platform for employees to stand on violated the Safety Standard set forth at 29 CFR 1910.28(a)(2) (Tr. 61, Exh. G-8).
e) The absence of guardrails on the ends of the scaffold and absence of toeboards violated the Safety Standard set forth at 29 CFR 1910.28(a)(3) (Tr. 62, Exh. G-9).
f) The absence of a wire screen between the toeboard and the guardrail extending along the entire opening on the scaffold to prevent materials or equipment from falling off and striking people that may be passing below the scaffold violated the Safety Standard set forth at 29 CFR 1910.28(a)(17) (Tr. 62-63, Exh. G-10).
Mr. Hanna additionally testified that, based upon his education and 20 years of experience in the field of safety engineering, the conditions he observed on September 21, 1971, from his office window created ". . . imminent danger of a serious nature, . . . that should be corrected immediately, to prevent the possibility of serious physical harm or possibly death" (Tr. 64) (Tr. 21-24, 63-64).
9. It was the opinion of the general contractor's Vice-President, Mr. Duveneck, that the manner in which the scaffold was rigged on September 21, 1971 was not safe, and in view of the lack of safety belts, lifelines, and absence of barricades on the sidewalk below the scaffold, there existed the definite possibility of death or serious physical harm to Respondent's employees on the job. He further testified that the three employees on the Boston Store Garage job were employees of Respondent, not of the general contractor (Tr. 49-53, 28).
10. The Secretary called the Respondent Mr. Worthem as an adverse witness and this testimony together with other statements made on his own behalf reveal the following: (Tr. 73).
a) He is and has for over 35 years (Tr. 17) been engaged in the business of tuckpointing, masonary repair, concrete restoration, caulking, cornice removal, waterproofing, steam cleaning and sandblasting on industrial, commercial, residential and institutional buildings, doing business as City Wide Tuckpointing Service Company. Respondent's business card represents that he offers "Nation Wide Service" (See Exhibit G-11) and he testified that his company has done work in the States of Michigan, Indiana, Florida, Minnesota, Illinois and Wisconsin (Tr. 73-75).
b) Respondent had a verbal agreement with Mr. Duveneck of Service Painting Corporation to caulk masonary joints of the outer perimeter of the top floor of the Boston Store Parking Garage, located at 5th and Michigan Streets, Milwaukee, Wisconsin (Tr. 100, 103-104).
c) Approximately two weeks prior to September 21, 1971, Mr. Worthem went to this garage to survey the project and determine what equipment would be necessary to accomplish the work (Tr. 80, 96).
d) On September 20, 1971, Respondent met with his three employees at a garage in which he stores his equipment, and gave a list of necessary equipment to one Tim Corrigan, who was to be in charge of the Boston Store project as Mr. Worthem had two additional jobs under way at that time, one at the "Bankers Building" and a masonary job at Marquette University, where he personally was engaged in laying brick. At this time he gave Mr. Corrigan a list of equipment to take to the Boston Store project, including safety lines, an eight foot scaffold, two bails, a back rail and directed Corrigan to go to the Bankers Building job, to pick up their tools, safety belts, and a roll of wire mesh. He then instructed Corrigan to use his (Respondent's) station wagon to transport the listed equipment to the job, and on the job, to rig the scaffold . . . "through the station wagon" (Tr. 92), to enable the changing of the position of the scaffold around the perimeter of the building as there were 52 masonary seams to be caulked, approximately 12 to 16 feet apart, and so as not to interfere with motor vehicles being parked on the roof of this garage (Tr. 80-96, 97, Depo. pp. 19-20).
e) In his sworn testimony, Mr. Worthem admitted that in his caulking operations in the past, depending upon the building involved he has used swinging scaffolds rigged to lookout riggers, or hooks with safety tie-backs, and on other buildings he has rigged to permanent structures such as galvanized steel pipes, drain pipes or chimneys extending through the roof of the building (Tr. 77-79).
f) He further claims that this job was the first job in fifteen years that he did not personally participate in and supervise the work of his men, but in his absence he put Mr. Corrigan in charge, an employee of some 18 years association with City Wide Tuckpointing Service Company. He readily admitted to not having visited the Boston Store Garage project while it was in progress (Tr. 79-82, 89, 92, 93, 96).
g) He admitted that the scaffold in question did not have toeboards, but claims he instructed Corrigan to install wire mesh on the scaffold (Tr. 80, 84).
h) He admitted to having been engaged in his line of work in the State of Wisconsin since 1961, and to knowledge of a Wisconsin "law" requiring swinging scaffolds to be attached to "permanent structures" (Tr. 101). He further claims a total lack of knowledge of any requirements concerning toeboards, (Tr. 100-101) but admitted knowledge of local requirements for the use of "safety belts, safety-lines and wire mesh." (Tr. 101). He claimed that it was his intention that the men on the scaffold were to work on the center of the scaffold between the supporting bails and ropes intimating that guardrails on either ends of the scaffold, although they might be required, were unnecessary as a safety measure (Tr. 102).
i) He admitted that he did not nor did he request Mr. Duveneck or anyone else to contact anyone connected with the Boston Store to obtain permission to block off traffic from the top floor of the parking garage although such arrangements might readily have been made (Tr. 103-104, 53-54).
j) Finally, Mr. Worthem admitted that the scaffold in question had no toeboards, nor guardrails at either end and no wire mesh as required. Furthermore, that his employees gained access to the scaffold by sliding down one of the supporting ropes or falls; that this scaffold was tied, as he instructed, to his station wagon, and that no life belts nor lifelines were being used on the morning of September 21, 1971, although he had supplied such equipment (Tr. 106-108).
11. The Respondent conceded that the Boston Store sells merchandise originating outside of the State of Wisconsin, "From all over the world" (Tr. 118).
12. Mr. Tim Corrigan was also called as an adverse witness by the Secretary although Respondent had intended to call him as his own witness. Corrigan confirmed the following facts:
a) To having worked for Worthem, off and on for approximately 20 years (Tr. 121).
b) In Worthem's absence from a job, he is in charge, and was in charge of the Boston Store Parking Garage job (Tr. 121-122).
c) Upon Worthem's direction, he took the scaffold, bails, ropes, slings, backrail and plywood from Respondent's garage to the work place, stopping at the Bankers Building job to obtain safety belts and wire mesh (Tr. 125-126).
d) Admitted he did not use either safety belts or safety lines nor wire mesh, and to securing the supporting lines of the scaffold to the center post of Respondent's station wagon (Tr. 127, 131, 136).
e) Both he and a second employee of Respondent did work on the scaffold, the third employee did not go onto the scaffold (Tr. 130).
f) Admitted scaffold had no guardrails at either end (Tr. 131).
g) He stated that he elected not to use nor to have Respondent's other employee use either safety belts or safety lines or to install the wire mesh (Tr. 131).
h) Admitted that the scaffold in question did not have toeboards and no barricades were erected on the sidewalk below the scaffold on 5th Street, although people were wolking below the scaffold (Tr. 132).
i) He attached 2 X 4 pieces of lumber of the scaffold as "kickers" to hold the scaffold out from the face of the building and nailed a piece of plywood to these "kickers" as a platform on the scaffold (Tr. 133-135).
j) Admitted access to the scaffold was had by shinnying or sliding down the supporting rope and the absence of any access ladder (Tr. 135).
k) He claimed never to have seen a scaffold tied to a motor vehicle for support prior to the job in question (Tr. 136).
l) On September 21, 1972, after Mr. Duveneck's visit, he went to Duveneck's office nearby, obtained sidewalk barricades, which he erected at the scene and then, "I took our safety belts out of the station wagon and put them on" (Tr. 143), affixed safety lines to the belts and retied the scaffold through the station wagon and around its roof (Tr. 143).
m) Respondent owns barricades, safety belts, safety lines and other necessary equipment (Tr. 145).
n) That Worthem was called to the Bankers Building job, prior to September 21, 1971, when Corrigan was not wearing a safety belt and that Worthem insisted that safety belts be worn (Tr. 145-146).
o) Corrigan admitted that he has known of the requirement for using safety belts and safety lines for the past five or six years, and to deliberately not using them, ". . . if I thought I could get away without wearing them, . . ." because this equipment is difficult to get use to (Tr. 146-147).
p) He confirmed that Respondent gave him a list of items to take to the parking garage job site, which included wire mesh, safety belts and lines, which items he did not use however (Tr. 154-155).
13. By midafternoon of September 21, 1971, the caulking project at the Boston Store Garage was completed and Respondent's equipment and employees were removed (Tr. 153).
14. The Secretary's proposed penalty is based upon a 30% reduction of the maximum statutory penalty of $1,000, 10% based upon the size of the employer and 20% due to the lack of any previous violations (Tr. 72).
15. The annual net income of Respondent from City Wide Tuckpointing Service Company in 1971 was approximately $18,000 and has averaged about the same amount for the past three years (Tr. 103).
CONCLUSIONS OF LAW
1. Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.
2. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
3. At all times involved in this case, Respondent furnished employment to three of his employees at a workplace located in Milwaukee, Wisconsin and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.
4. On November 19, 1971, the Secretary pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation, and a Notification of Proposed Penalty in the amount of $700.00.
5. On November 27, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary his notification of intent to contest the citation and proposed penalty. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.
6. On September 21, 1971, the Respondent herein violated Section 5(a)(2) of the Act by failing to comply with the following Occupational Safety and Health Standards duly promulgated pursuant to Section 6 of the Act:
a) 29 CFR 1910.28(a)(3) -- Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 100 feet above the ground floor.
b) 29 CFR 1910.28(a)(12) -- An access ladder on equivalent safe access shall be provided.
c) 29 CFR 1910.28(a)(17) -- Scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire one-half-inch mesh or the equivalent, where persons are required to work or pass under the scaffolds.
d) 29 CFR 1910.28(a)(26) -- Scaffolds shall be secured to permanent structures, through use of anchor bolts, reveal bolts, or other equivalent means. Window cleaners anchor bolts shall not be used.
e) 29 CFR 1910.28(g)(9) -- On suspension scaffolds . . . Each workman shall be protected by a safety lifebelt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the workman in case of a fall.
7. The totality of the conditions found to exist at Respondent's workplace on September 21, 1971, which were contrary to the Standards detailed supra, constituted a serious violation of the Act within the meaning of Section 17(k) thereof, in that there was a substantial probability that death or serious physical harm could result to the Respondent's employees from said conditions and the Respondent employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.
Respondent instructed his employee to rig the scaffold to his station wagon, not a permanent structure, and knew that the scaffold he directed his employees to use did not have toeboards of guardrails at either end thereof nor any access ladder.
Although Respondent instructed his employee to obtain wire mesh for the scaffold as well as safety belts and safety lines, he did not exercise reasonable diligence by his failure to go to the work site and supervise his employees. The need for such supervision was well known to Respondent from the past conduct of his employees. While his employees were working on a concurrent work project, Respondent was called to that job because his employees were not using safety belts and safety lines. Respondent had to go to that job and direct his employees to use this equipment and was required to supervise them to assure that this safety equipment was used (Tr. 145-146).
8. The Secretary alleges in his Citation and Complaint (R.pp.1, 6) that the Safety Standard set forth at 29 CFR 1910.28(a)(2) was violated by Respondent's use of a piece of plywood on top of the scaffold floorboards (Tr. 61). This Standard provides:
The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks shall not be used to support scaffolds or planks.
Although the applicability of this standard to the condition observed, is not without some question, there is no substantial evidence of record which provides that the scaffold in question with the piece of plywood on top of the scaffolds floor boards, was not capable of carrying the maximum intended load. There is a conflict in the evidence as to whether the plywood was loose or nailed to the scaffold (Tr. 25, 61, 133).
It is concluded, in any event, that the evidence of record does not support the Secretary's allegation of non-compliance with 29 CFR 1910.28(a)(2). n2
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n2 It is noted that other Standards not replied upon by the Secretary appear to cover the observed condition more accurately than the Standard cited by the Secretary. Note 29 CFR 1910.28(a)(8), (9), (10) and (11).
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9. The "Immediate" date on which the violations herein found to exist were to be corrected was reasonable under the circumstances and was accomplished on September 21, 1971, ultimately by completion of the job and the removal of Respondent's scaffold from this worksite.
10. The Secretary's proposed penalty in the amount of $700.00 based upon the serious violation herein found to exist, in the light of the mitigating circumstances detailed infra, is not appropriate.
a) Respondent Worthem prior to September 21, 1971, was not aware of any requirement that scaffolds be fitted with toeboards (Tr. 100, 101).
b) The Respondent did provide safety belts and safety lines for his employees and instructed his employee Corrigan to obtain the same from another worksite as well as to obtain the necessary wire mesh to install on the scaffold. It was Mr. Corrigan's deliberate choice not to wear this safety equipment himself nor to have another of Respondent's employees utilize it on September 21, 1971, and his deliberate choice not to utilize the wire mesh. As pointed out earlier, Respondent did not adequately discharge his responsibilities to his employees in this regard by failing to supervise their activities on this job site, but employee Corrigan must bear a heavy share of the responsibility for failure to comply with the safety belt and safety line requirements, as well as the failure to have wire mesh affixed to the scaffold as required (Tr. 131).
c) No injuries of any kind were connected with the conditions found to exist at Respondent's work place on September 21, 1971, and he has evidenced a cooperative attitude since that date. Respondent has no record of injuries on prior work projects as far as the evidence of record discloses.
d) Respondent, a sole proprietorship, is a small business, having a maximum of 3 employees during the good weather months and not operating at all during severe winter months. His average net income over the past three years from this business has been approximately $18,000. Dur to the illness and hospitalization of a son, Respondent's savings have been depleted. He appeared in these proceedings pro se, being unable to pay for an attorney and expressed a willingness to pay the proposed penalty if he could (Tr. 161-163).
Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation, it is concluded that a penalty in the amount of $350.00 for this serious violation is appropriate and obtains a just result.
Based upon the foregoing findings and conclusions, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,
ORDERED
1. That the Citation for Serious Violation dated November 19, 1971, directed to the Respondent herein is amended by vacating the specification of alleged violation of 29 CFR 1910.28(a)(2), and, as amended, is AFFIRMED.
2. That the Secretary's Proposed Penalty in the amount of $700.00 based upon this serious violation, under the circumstances here present is not appropriate, and is MODIFIED.
3. A civil penalty in the amount of $350.00 is assessed against the Respondent herein, payment thereof to be made to the Secretary within thirty days of the issuance of the final order herein.