OSHRC Docket No. 5315

Occupational Safety and Health Review Commission

June 11, 1975


Before MORAN, Chairman; CLEARY, Commissioner



MORAN, CHAIRMAN: A decision of Review Commission Judge William J. Risteau dated June 28, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Upon full consideration of the evidence and the briefs submitted by counsel we affirm the Judge's disposition.




CLEARY, COMMISSIONER, concurring: I concur in Chairman Moran's disposition of this case.

The evidence of record clearly indicates that the violation of 29 CFR 1910.28(a)(3) was serious and not a mere technical non-serious violation as urged by the respondent. There were neither toeboards nor guardrails along the rear of the platforms which were placed upon the scaffolding. The cross braces on the scaffold at the rear of the employees were ineffective to prevent a fall because of the large gap between the platform and that side of the scaffold. Furthermore, since the photographic evidence shows one employee working above another, the lack of toeboards endangered the employee at the lower level to the hazard of falling objects.

The employees were subject to falls of more than 20 feet to the pavement below. Thus, the [*2] violation was serious within the meaning of section 17k of the Act because there was a "substantial probability that death or serious physical harm could result" from a fall. Considering this and the entire record in light of the criteria enumerated in section 17j of the Act, the $600.00 penalty assessed by the Judge for this violation is appropriate.

The respondent contends that the citation for the alleged violation of 29 CFR 1910.28(a)(12) is fatally defective because of a lack of particularity. The citation describes that violation as follows:

Tubular welded frame scaffold located at the Commerce Street entrance to the Adolphus Parking Garage did not have an access ladder or equivalent safe access.

The respondent's contention lacks merit. The citation's language is quite descriptive and place the respondent on notice as to what the violation was and where it occurred. It therefore meets the particularity requirements of section 9(a) of the Act.

[The Judge's decision referred to herein follows]

RISTEAU, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), [*3] contesting Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citations allege that as the result of an inspection on October 2, 1973, of a workplace under the ownership, operation or control of the Respondent, located at 1321 Commerce Street, Dallas, Texas, and described as "multi-story structural steel and brick masonry building," Respondent 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 October 10, 1973, allege that violations resulted from a failure to comply with the following standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926.


Standard -- Description

29 CFR 1910.28(a)(3) -- Tubular welded frame scaffold located at the Commerce Street entrance to Adolphus Parking Garage did not have guardrails and toeboards installed on all open sides and ends of platforms more than ten (10) feet above the ground or floor.

The cited Regulation reads as follows:

[*4] Standard -- Description

1910.28 -- Safety requirements for scaffolding. (a) General requirements for all scaffolds. (3) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground floor . . . .

Guardrails should all be 2 X 4 inches or the equivalent, installed no less than 36 inches or not more than 42 inches high, with a midrail, when required, of 1-X-4-inch lumber or equivalent. Supports should be at intervals not to exceed ten feet. Toeboards shall be a minimum of 4 inches in height.


Item No. -- Standard -- Description

1 -- 29 CFR 1903.2(a) -- Notice informing employees of their protection and obligations provided for in the Occupational Safety and Health Act was not posted in this establishment.

2 -- 29 CFR 1910.28(a)(12) -- Tubular welded frame scaffold located at the Commerce Street entrance to the Adolphus Parking Garage did not have an access ladder or equivalent safe access.

The cited Regulations read as follows:

Item No. -- Standard -- Description:

1 -- 1903.2 -- Posting of notice; availability of Act, regulations and applicable standards. (a) Each employee shall post and keep [*5] posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

2 -- 1910.28 -- Safety requirements for scaffolding. (a) General requirements for all scaffolds. (12) An access ladder or equivalent safe access shall be provided.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated October 10, 1973, from Charles J. Adams, Director of Area 1730, Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, that he proposed to assess penalties in the following amounts.




Item No. 1


Item No. 2

$ 35




After Respondent contested this enforcement action and a Complaint had been filed, the case came on for hearing at Dallas, Texas, on March 26, 1974. No question concerning the Respondent's status as an employer as defined in the Act or the jurisdiction of this Commission has been raised.


Citation for Serious Violation

As pointed out above, this Citation involves platforms mounted on a scaffold extending up the wall of the hotel building operated by Respondent. It is charged that these platforms and the employees working on them were more than 10 feet above ground level and were not protected by guardrails and toeboards. In support of the Citation, Complainant's Compliance Officer stated that the horizontal scaffold frames were 7 feet square; the platform extending parallel to the face of the building was 18 or 20 inches wide. The Compliance Officer further testified that the platform shown in Exhibit C-1 was approximately 20 feet from ground level; that the platform and similar ones were moved to different heights from time to time (Ex. C-2 and C-3), n1 and that the platforms were not provided with guardrails and toeboards as required by Regulation.

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n1 Mr. Adams, Complainant's Area Director, testified that the upper level platforms were 35 and 60 feet above ground.

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Also testifying for Complainant at the hearing was Mr. Antonio Soto, one of the employees of Respondent who was at work on the scaffold. Mr. Soto stated that he and a co-worker had placed the boards which formed the platform on the scaffold and that, even though more boards had been available to widen the platform, only two were used at any given time in order to facilitate movement of the platform from level to level.

Following the hearing Respondent moved to reopen the record for inclusion of an affidavit from Mr. Soto containing "additional statements and clarifications" of his testimony. Complainant did not respond to this motion.

In his affidavit Mr. Soto stated that the platform was approximately 4 by 7 feet in dimensions. He said that he covered the supporting frame of the scaffold with two boards 10 to 24 inches wide to form the platform. He spaced these boards back from the building about [*8] 8 to 10 inches, leaving 14 inches behind him and between him and the outer end of the scaffold. He did not believe there was a danger of falling through this space and sustaining serious injury.

Respondent's witness Miller testified that the scaffold frame was 7 feet wide by 4 feet deep; the platforms consisted of two boards 10 inches wide. Mr. Miller also stated that the scaffold enclosing the platforms had guardrails at the ends and crossed braces on the side of the scaffold at the back of the employee and away from the building.

These conflicts in the testimony with respect to this Citation may best be resolved by examination of Exhibit C-1, which shows at relatively close range a portion of the scaffold and one of the platforms referred to in the Citation. From this photograph it is clear that there is more than enough space for a man to fall between the rear edge of the platform and the scaffold (See also Exhibits C-2 and C-3). Moreover, Exhibit C-1 also shows nothing resembling a 42 inch high guardrail at the rear of the platform or the scaffold or a toeboard at the sides and rear. There is, however, a guardrail of approximately the proper height at the end of the scaffold. [*9] This is not, however, enough to satisfy the requirements of the Regulation. In this regard it may be noted that even if there had been a standard guardrail and toeboard at the rear of the scaffold, the requirements would still not have been met by reason of the gap between the platform and the scaffold.

Respondent argues that the proposed penalty for this violation was excessive. It was, however, a serious violation, as defined by Section 17(k) of the Act n2 in that a fall from the distances involved would have resulted in serious physical injury. Moreover, as the testimony of Mr. Miller indicates, Respondent did not require its employees to comply with safety standards promulgated pursuant to law but instead relied on the judgment of the employees themselves as to the procedures to be followed. It is the opinion of the undersigned that this conduct demonstrated lack of the diligence required by Section 17(k) with respect to known or knowable hazards in an employer's workplace. On these facts, considering the gravity of the serious violation, and the size, good faith, and lack of history of previous violations of Respondent, a penalty of $600 is appropriate, as compared [*10] to the $1000 permissible under Section 17(b) of the Act.

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n2 For the purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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Citation for Other Violations (Nonserious)

Item 1

Respondent urges that the failure to have posted in its workplace a notice informing employees of their rights under the Act is de minimis in that such a violation has no direct relationship to safety or health. It would appear, however, that this requirement of the Regulations is in fact closely related to safety in that it conveys to the employee the information necessary for him to make complaints to appropriate authorities [*11] concerning existing work hazards, thereby facilitating prompt abatement. Moreover, this poster was "inadvertently or purposely" torn down for use as scratch paper. Under the circumstances, it must be held that the Citation validly charges a violation for which a zero penalty is appropriate.

Item 2

This Item charges Respondent with failure to provide safe access to the scaffold from the hotel balcony. The evidence establishes that access to the scaffold was accomplished by making an upward step of 2 feet rather than the 1 foot which the Compliance Officer considered to be safe. On the other hand, Complainant's Area Director considered this condition to be of only the lightest gravity. On this basis, Item 2 should be affirmed, but the proposed penalty of $35 should be vacated.


1. On October 2, 1973, employees of Respondent were engaged in work activity involving maintenance and repair of certain buildings in Dallas, Texas.

2. In the course of such work, Respondent's employees stood on platforms supported by tubular metal Scaffolding frames adjacent to the buildings described above.

3. The platforms referred to in Finding 2, above were 20 to [*12] 24 inches deep and 7 feet long; they were located at distances varying from 20 to 60 feet above ground.

4. Neither the platforms or the scaffold support were equipped with guardrails approximately 42 inches high or toeboards on the side to the rear of the employees as they worked on the face of the building. The scaffold support had a 42 inch guardrail at each end, and crossed braces in the rear of the platform which did not constitute guardrails and which were located at such a distance from the employees that they would not prevent a fall to ground level.

5. The hazard from such a fall is death or serious physical injury.

6. Respondent could, with the exercise of reasonable diligence, have known that the inadequate guarding of the platforms, as described above, constituted a work hazard.

7. Considering the gravity of the violation covered by the Citation for Serious Violation along with Respondent's good faith, size, and history, a penalty of $600 is proper for that violation.

8. Respondent, on October 2, 1973, failed to post at the workplace a Notice advising employees of their rights and obligations under the Act. (Item 1 Nonserious Citation). A zero penalty [*13] is appropriate for this violation, conidering the criteria set forth in Finding of Fact No. 7, above.

9. Respondent failed on October 2, 1973, to provide safe access to the scaffold described in the preceding Findings (Item 2, Nonserious Citation); a zero penalty is proper.


1. Respondent, by admission, is an employer engaged in a business affecting commerce as defined in the Occupational Safety and Health Act of 1970.

2. On October 2, 1973, Respondent was in violation of Section 1910.28(a)(3) of Title 29, Code of Federal Regulations, comprising a Safety Standard promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; violation of this standard constituted a serious violation, as defined in the Act.

3. On October 2, 1973, Respondent violated Sections 1903.2(a) and 1910.28(a)(12) of Title 29, Code of Federal Regulations, Violation of these Standards constituted nonserious violations of the Act.


On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that the Citation for Serious Violation, issued on October 10, 1973, be AFFIRMED, along with [*14] the proposed penalty of $600. It is further ORDERED that Items 1 and 2 of the Nonserious Citation issued on the same date be and they are hereby AFFIRMED, with zero penalties imposed.