Docket No. 585

STANDARD GLASS & SUPPLY CO.

OSHRC Docket No. 585

Occupational Safety and Health Review Commission

April 27, 1973

Before VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On July 25, 1972, Judge John J. Larkin issued his recommended decision and order in this case, modifying the Secretary's citation for serious violation by ruling that it constitutes an other than serious violation and reducing the proposed penalty from $700 to $100, and affirming the Secretary's citation and proposed penalty for the other than serious violation.

On August 2, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act") in order to determine whether the violations are serious within the meaning of Section 17(k) of the Act and whether, in view of the low gravity of the violations, the penalties are appropriate.

The Commission has reviewed the record in this case and has considered the briefs, arguments and exceptions of the parties. We adopt the Judge's decision only to the extent it is consistent with the following.

Our review of the record discloses that respondent was cited for a serious violation of 29 CFR 1926.451(a)(4), (12), (14) and (15) by permitting his employee to use a scaffold approximately 20 feet above ground level without a standard rail and toe board and without conforming planking and bracing.

Judge Larkin, citing the exposure of only one employee for a few minutes, correctly determines that the violation is of low gravity. However, he concludes his discussion of gravity by finding that the violation is of other than a serious nature. While we agree with the Judge's determination of a low level of gravity of this violation for the reason stated, we do not agree that the violation was of an other than serious nature.

It is our view that substantial probability that death or serious physical injury could result, in conjunction with the knowledge requirement of section 17(k) and the possibility of an accident's occurrence, is all that is required for a violation to be considered serious. The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious, within the meaning of the Act.

Section 17(k) reads as follows:

For 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.

Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to result when an accident does arise from a particular set of circumstances. Section 13(a) of the Act provides that the Secretary may petition to restrain conditions which ". . . could reasonably be expected to cause death or serious physical harm immediately . . ." [Emphasis added]. Providing for an additional means of enforcement for conditions which constitute imminent dangers distinguishes section 13 violations from those of section 17(k). The difference is the immediacy of the danger. Similarly, serious and non-serious violations are differentiated on the basis of the degree of probable injury. n1 These violations are defined primarily to provide appropriate means of enforcement. Imminent dangers may be restrained. Serious violations, unlike non-serious ones, warrant mandatory penalties. Thus, by reading these sections of the Act together, a rational distinction among the three types of violations is revealed. To require, in addition, that for serious violations the occurrence of accidents be substantially probable is inconsistent with the logical progression of violations and their concomitant remedies. That interpretation would make serious violations and those constituting imminent dangers practically indistinguishable.

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n1 The Act also deals with de minimis, willful, repeated, and unabated violations.

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Section 2(b) of the Act states the purpose and policy of Congress, which is ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources -- (1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards. . ." The intent of Congress is to prevent the occurrence of injury. To require, as a prerequisite to a serious violation, that an accident be substantially probable, rather than simply possible, is inconsistent with this purpose. Here, the hazard of falling 20 feet brings the violation within the ambit of Section 17(k).

The alleged other than serious violation for failure to provide protective helmets, in the circumstances of this case, as described by Judge Larkin, does not present a substantial probability of serious injury. It was properly alleged as being other than serious.

Judge Larkin's assessment of $100 and $70 penalties for the scaffolding and helmet violations, respectively, is affirmed despite the serious nature of the former violation because of the low gravity of the violations, and the adjustments accorded respondent pursuant to section 17(j) of the Act.

It is ORDERED that the Judge's decision be modified in accordance with this opinion, that the serious and other than serious citations issued by the Secretary be affirmed, and that respondent be assessed a total penalty of $170.

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 28 USC 651 et seq. (referred to as the Act) to review citations for an alleged serious violation and for an alleged violation not of a serious nature and Notification of Proposed Penalties in the amounts of $700 and $70 respectively, issued by the Secretary of Labor (referred to as the Secretary), pursuant to Section 9(a) and 10(a) of the Act.

The trial was held on April 21, 1972, at Knoxville, Tennessee. The citations issued by the Secretary on February 8, 1972, specify, as follows:

29 CFR Section 1926.100(a) as adopted by 29 CFR Section 1910.12 -- Employer failed to provide protective helmets for employees working in areas where a danger of head injury from impact or from falling objects existed.

29 CFR Section 1926.451(a), (4), (12), (14) and (15) as adopted by 29 CFR Section 1910.12 -- Employer permitted his employees to use a scaffold approximately 20 feet above ground level without, standard rails or toe boards; platform planking was improperly overlapped or secured; platform planking extended more than 12 inches beyond end supports; and necessary bracing to prevent swaying or displacement was not provided.

29 CFR 1926.451(a), (4), (12), (14), and (15) provide:

(a) General requirements. (1) Scaffolds shall be erected in accordance with requirements of this section.

(4) Guardrails and toe boards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

(12) All planking or platforms shall be overlapped (minimum 12 inches), or secured from movement.

(14) Scaffold planks shall extend over their and supports not less than 6 inches nor more than 12 inches.

(15) The poles, legs, or uprights of scaffolds shall be plumb, and securely and rigidly braced to prevent swaying and displacement.

29 CFR 1926.100(a) provides:

(a) Employees working in areas where there is a danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Respondent is a Tennessee Corporation with its principal office at 304 North Broadway, Knoxville, Tennessee (Complaint and Answer). It is engaged in the installation of window frames, door entrance ways and glass, ceramic and metal panes for commercial buildings (Tr. 12a, 117). A large percentage of its purchases is from sources outside of Tennessee and it is an "employer", affecting interstate commerce under the Act (Tr.4, 12a).

Respondent grosses between $500,000 to $600,000 a year and employs approximately 26 to 28 employees (Tr. 12a, 13).

During 1971, it contracted at a price of $21,875 to install glass and front exteriors in a new two-story building located at 611 Kingston Pike, Knoxville, Tennessee (Tr. 13). As customary, 95 percent of the work was done by the same two employees (Tr. 14). The exterior of the Kingston Pike Building was basically completed before respondent started its work (Tr. 77, 102).

On February 1, 1972, the Secretary's Compliance Officer, during an inspection, observed one of respondent's employees working on a tube-and-coupler metal scaffold at a height of approximately twenty feet and neither of the employees was wearing safety helmets (Exhibit B; Tr. 21, 22).

As of the day of the inspection, respondent had completed its work under the contract with the exception of installing at the second-floor level a metal pane not available at the time the frame was set (Tr. 66, 67, 117). This pane was approximately 20 x 54 inches and weighed about 20 pounds (Tr. 82, 117). It was passed from the ground to the workman standing on a lower level of the scaffold (Tr. 70). The installation, through use of a screw driver, took one man approximately five to six minutes and the employees were preparing to dismantle the scaffold at the time of the inspection (Tr. 69, 83). The scaffold had been moved to that location the night before solely for the purpose of installing the one pane (Tr. 66, 80, 81, 116). The two topcross braces of the scaffold had been removed to allow the employees access to install materials (Tr. 79, 80). This removal did not affect the stability of the scaffold (Tr. 53, 80, 106). The scaffold was not tied to the building (Tr. 78). It contained two platform boards at the second floor level and a third board approximately ten feet lower (Exh. B; Tr. 19, 22). The end of the lower board extended more than 12 inches beyond the end of the scaffold support (Tr. 38, 113). The scaffold contained no side rails or toe boards (Tr. 75).

The condition of the scaffold at the temporary location was not representative of its condition during prior use (Tr. 66). Normally, the platform contained a greater number of boards placed side-by-side and secured from movement by nails driven through the boards into holes provided in the metal supports (Tr. 66, 67). The scaffold framework was tied to the building for support (Tr. 78). The frames were anchored from the inside of the building and normally, the glass was passed from the inside to the outside for the workman on the platform to install (Tr. 66, 71, 72, 76, 78). The employees did the first floor installation by standing on the ground or a ladder (Tr. 117, 118).

Entrance ways to buildings were blocked if the workmen were installing glass over head (Tr. 81). There were no other workmen above or below respondent's work as the building exterior was substantially completed (Tr. 77). The employees had not worn safety hats since inception of the project, although hats were provided for workmen at the respondent's shop (Tr. 71). In early January 1972, the employees were specifically instructed that safety hats must be worn where required (Tr. 87). On Government projects, such as work performed for the Atomic Energy Commission, and the Tennessee Valley Authority, respondent's employees were accustomed to wearing safety helmets in areas designated as "hard-hat areas" (Tr. 101-102).

Respondent has regularly scheduled safety meetings and its employees are instructed to wear safety hats where required and to use only a solid base from which to work (Tr. 87, 93). It has never had an accident resulting from use of scaffold (Tr. 95). It has received a substantial reduction in workman compensation premiums due to its safety record (Tr. 90, 91).

Following issuance of the citation, respondent's management contacted its rental supplier and was advised that scaffold described as meeting Occupational Safety and Health standards was not available (Tr. 107-108). Since receiving the citation, respondent has not used scaffold on its other projects (Tr. 97, 108).

The compliance officer received full cooperation from respondent and its employees during his inspection (Tr. 58).

OPINION

Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act.

Section 17(b), as pertinent, provides that any employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.00.

Section 17(c), as pertinent, provides that any employer who has received a citation for a violation of any standard specifically determined not to be of a serious nature may be assessed a civil penalty of up to $1,000.00 for each violation.

Section 17(j) as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration 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.

Section 17(k), as pertinent, provides that a serious violation shall be deemed to exist 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.

Part 2200.33 of the Rules of Procedure of the Review Commission, as pertinent, provides that the burden of proof shall be on the Secretary to sustain the assertions contained in the Citation and Notification of proposed penalty.

The only issue for decision is the amount of penalties, if any, that should be imposed.

The record shows that respondent's scaffold on the day of the inspection did not have standard rails or toe boards; platform planking was improper and improperly secured; one board at a lower level extended 12 inches beyond the end supports and the scaffold did not contain two top cross braces on the inside. Respondent contends that except for the rails and toe boards, the condition was temporary and of extremely short duration exposing only one employee; that it was not aware of the circumstances; it abated immediately and has not since used scaffolds. It contends that when these facts are weighed in the light of its good faith and safety record, the penalties are unreasonable and should be substantially reduced or vacated.

The Secretary contends that the penalties are reasonable as the circumstances could have resulted in serious injuries to employees.

In line with respondent's contention, the record substantiates that the scaffold was at a temporary location exposing one employee at a height of 20 feet for short duration. It took only five to six minutes to install the pane. The evidence shows also that during prior usage, the scaffold conformed with the cited standard, with exception of no standard rails or toe boards.

The first floor installation did not require the use of a scaffold. The Secretary offered no proof as to how much the scaffold was used for second story installation. Certainly, Exhibit B indicates limited second story installation. One of the two employees involved testified as the Secretary's witness. He testified that the frames were installed from the inside and that only the panes required outside installation. The installation required only an electric drill and screwdriver and the electric drill was used only inside. The building exterior was completed before they started on the project. This witness further testified that the entrance ways were blocked if overhead installation was involved and that there were no employees working above or below.

On cross examination, the compliance officer admitted there were no other employees working on the outside of the structure; there was no danger of an object falling from above and striking someone on the scaffold; there was no one under the scaffold until the employee descended; and the removal of the cross braces did not affect the stability of the scaffold. Careful study of the record shows that the compliance officer based his evaluation of the gravity of the violation on reasons justifying the standard rather than whether the actual conditions created "substantial probability that death or serious physical harm could result."

Respondent's president and vice president testified. Respondent's evidence show that the project was completed with exception of installation of one pane not available when the frame was installed. The scaffold had been moved solely to install that one pane. Respondent's management was unaware of the condition of the scaffold except that it did not contain rails and toe boards. Scaffolds without rails and toe boards were customarily used in the area and supplied from its rental supplier without them. Respondent had not been furnished copies of the standards and was unaware rails and toe boards were required.

The Secretary has the burden of proof. Respondent's president testified that respondent has had no scaffold accidents during the 17 years he has been with the company. When such fact is considered in the light of one employee being exposed for only a few minutes while using the scaffold, it must be concluded that the Secretary has failed to show that "a substantial probability that death or serious physical harm could result from" the condition.

Respondent recognizes that it was in violation of the standard. It is concluded that it is guilty of a violation not of a serious nature. It cannot be concluded that the violation warrants no penalty. Respondent's president and vice president were convincing witnesses. They were convincing that respondent is truly interested in the welfare and safety of its employees. Respondent's evidence shows that it has a good safety record and this evidence is not refuted. The compliance officer testified that he received full cooperation during his inspection of respondent's workplace. When all of the facts are considered in the light of the gravity of the violation, respondent's size, good faith, and safety history, it is concluded that a penalty of $100 for a violation not of a serious nature is appropriate for the scaffold violation.

Respondent concedes that the two employees were not wearing safety helmets and had not worn them since inception of the project. The standard specified that protective helmets must be worn if there is danger of head injury from impact, falling of flying objects or from electrical shock and burns. Respondent's defense is that the building exterior was completed when the project was started and that hard hats were not needed. The compliance officer admitted that the nearest electrical socket was 35 to 40 feet from the scaffold. Respondent's employee testified he had passed up the pane weighing approximately 20 pounds to the other workman on the scaffold. The workman on the scaffold was using a screw driver for installation of the pane. The respondent's evidence is that the scaffold was about to be dismantled. This, of necessity, would have involved removing the boards. All of the foregoing items would have to be classified as "falling or flying objects" if dislodged. On the basis of this record, it must be concluded that respondent was in violation of the standard and the situation justified the wearing of hard hats. The Secretary alleges that the violation was not of a seriopus nature and this conclusion is deemed appropriate. When the facts are considered in the light of the gravity of the violation, respondent's size, good faith and safety history, it is concluded that a penalty of $70 for a violation not of a serious nature is appropriate for the safety helmet violation.

DECISION

Respondent committed a violation not of a serious nature under the Act by failing to conform with the provisions of 29 CFR Sections 1926.451(a)(4)(12)(14)(15) and a violation not of a serious nature by failing to conform with the provisions of 29 CFR 1926.100(a) and penalties in the amounts of $100 and $70 respectively are appropriate taking into consideration the size of respondent's business, the gravity of the violations, good faith and history of previous violations.

IT IS ORDERED:

That the Secretary's Citation is affirmed only as modified in the foregoing paragraph and a total penalty in the amount of $170 be assessed against the respondent.