PAINTING UNLIMITED, INC.

OSHRC Docket No. 702

Occupational Safety and Health Review Commission

March 13, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision issued by Judge J. Marker Dern. Judge Dern found, inter alia, that Respondent violated in a non-serious manner section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") by violating standards published at 29 C.F.R. 1926.450(a)(1) and 29 C.F.R. 1926.450(a)(9). n1 The Judge assessed no penalties for the violations.

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n1 The cited standards provide:

1926.450(a)(1): Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

1926.450(a)(9): The side rails [of ladders] shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

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We have examined the entire record. We conclude the Judge correctly found a violation of 29 C.F.R. 1926.450(a)(1) but that he erred in assessing no penalty for the violation. We also conclude that the Judge erred by finding that Respondent violated 29 C.F.R. 1926.450(a)(9). Accordingly, we adopt the decision of the Judge only to the extent it is consistent with the following decision.

VIOLATION OF 29 C.F.R. 1926.450(a)(1)

(NON-SERIOUS)

The standard in question requires that unless stairways, ramps or runways are provided, "ladders . . . shall be used to give safe access to all elevations." Here, it is undisputed that Respondent's employees were required to hoist themselves from a scaffolding to the girder on which they were required to work. Likewise, it is undisputed that the employees were working more than 40 feet above the ground. On these facts, we agree with the Judge that a violation of the cited standard was established.

Complainant proposed no penalty for this violation, and the Judge adopted that proposal. We find this was error.

In contested cases, the Commission is "the final arbiter of penalties", and "the Secretary's proposals [*3] merely become advisory." Brennan v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973), slip op. p. 8. "If the employer contests . . ., the Commission acts de novo." Ibid., p. 7.

In conformance with the aforementioned responsibility, we have considered the size of Respondent's business, the gravity of the violation, Respondent's good faith, and its history of previous violations, as required by section 17(j) of the Act. Considering these factors (See National Realty and Construction Co., BNA 1 O.S.H.R. 1049, CCH Employ. S. & H. Guide, para. 15, 188 (1972)), we conclude that a $200 civil penalty is appropriate and should be assessed.

In reaching our conclusion here, we place particular emphasis on the gravity of the violation. The evidence establishes that Respondent had four employees on this job. At least two of them were exposed to the hazard. The employees were required to hoist themselves about four feet. Thus, the likelihood of an accident was not great. If, however, an accident occurred, the consequences were apt to be severe since the employees were working at an elevation of more than 40 feet. On balance, we conclude the gravity [*4] of the violation was moderate.

We have also given due consideration to the other factors enumerated above. Respondent's business apparently is small. There is no evidence of its lack of good faith, and it has no history of past violations.

VIOLATION OF 29 C.F.R. 1926.450(a)(9)

(NON-SERIOUS)

The cited standard requires that grab rails on ladders extend "not less than 30 inches above the landing " n2 (emphasis added). Alternatively, grab rails may be used where side rails are "not practical."

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n2 The regulation does not define "landing." In the absence of a different definition in the regulation, we will be guided by the ordinary and usual meaning of the term. Websters Third International Dictionary (unabridged) (1971) defines landing at p. 1268 as, inter alia: "a level part of a staircase at the end of a flight of stairs or connecting one flight with another."

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In the instant case, the evidence establishes that the ladder in question lead directly to another ladder and that there was no platform or [*5] landing between. The standard is limited by its express language to ladders which give access to a landing. Thus, the cited standard is inapplicable to the facts of the instant case, and the citation must be vacated.

Accordingly, it is ORDERED that the decision of the Judge is modified as follows:

1. The citation for violation of 29 C.F.R. 1926.450(a)(1) is affirmed, and a penalty of $200 is assessed for such violation.

2. The citation for violation of 29 C.F.R. 1926.450(a)(9) is vacated.

3. In all other respects the decision of the Judge is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Judge decided this case correctly and his decision should be affirmed.

The Commission's arbitrary assessment of a $200 penalty in this case constitutes a gross injustice since neither party to the case maintained that any penalty at all should be assessed. n3 Had respondent not exercised its right to a hearing, it would never have had to pay one cent in penalties 29 U.S.C. 659(a). The respondent has therefore been penalized simply because it sought a hearing, a right guaranteed both by the Constitution and this statute 29 U.S.C. 659(c).

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n3 The penalty proposed by the Secretary of Labor under 29 U.S.C. 659(a) for the violations alleged in the citation was zero.

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Reasons why penalty increases are improper have been set forth in a number of decisions. n4 As a fundamental proposition, however, it would seem to be quite clear that it violates the equal protection clause of the fourteenth amendment and the due process provisions of the fifth amendment when the threat of increased penalties falls solely on those who seek a just disposition of charges against them by assering their right to a hearing, thus creating an irrational basis for selection of the class upon whom this burden falls as well as an irrational means of effectuating any valid legislative policy.

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n4 Secretary v. M.A. Swatek & Company, Secretary v. California Stevedore & Ballast Company, Secretary v. Tacoma Boatbuilding Company, Inc., Secretary v. Robbins Painting Service,

[*7]

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[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (referred to as the Act) to review a Citation for a Serious Violation with proposed penalty in the amount of $700 and Citation for violations of a non-serious nature with proposed penalties of $245.

The citations were issued on March 23, 1972, and the respondent filed notice of contest on March 29, 1972. Thereupon, jurisdiction was conferred on the Occupational Safety and Health Review Commission under the provisions of section 10(a).

The Secretary of Labor (referred to as petitioner) filed his complaint on April 6, 1972, alleging as a result of respondent's work site on March 20, 1972, spray painting girders from a scaffold attached to girders of a bridge being constructed over the Alabama River, Montgomery, Alabama, at Interstate Highway 65, North Bridge approach across said river, the respondent had violated certain standards promulgated Title 29 C.F.R. and ask that the proposed penalties for the [*8] following violations be approved:

Citation for Serious Violation No. 1

Two workers on two-point suspension scaffold platform approximately 40 feet above ground, without lanyard tied or secured to lifeline or lifeline properly secured. The two-point suspension scaffold platform more than 6 feet above ground, was not provided with guard rails, midrails, and toe boards on open side. Standards violated: 1926.45(i)(8) and 1926.451(i)(11). * Proposed penalty $700.00

Citation No. 1

1. Two workers working on two-point suspension scaffold platform less than 20 inches wide. Standard violated: 1926.451(i)(1). * Proposed penalty $35.00

2. Hangers for two-point suspension scaffold are not designed with a support for guard rails, intermediate rail and toe board. Standard violated: 1926.451(i)(2). * No penalty.

3. Two-point suspension scaffold is not suspended by wire, synthetic or fiber rope. Standard violated: 1926.451(i)(5). * No penalty.

3. Two point suspension scaffold is not suspended by wire, synthetic or fiber rope. Standard violated: 1926.451(i)(5). * Proposed penalty $35.00.

4. Two-point suspension scaffold not securely lashed to structures to prevent it from [*9] swaying. Standard violated: 1926.451(i)(9). * No penalty.

5. Working in excess of 25 feet above ground without adequate protection. Standard violated: 1926.105(a). * Proposed penalty. $70.00

6. Improper and inadequate respiratory protective devices for iron oxide paint spraying. Standard violated: 1926.103(a)(2). * Proposed penalty $35.00.

7. No satisfactory access of upper (top) part of girder from suspension scaffold. Standard violated: 1926.450(a)(1). * No penalty.

8. Side rails of ladder do not extend 36 inches above landing and connecting fixed ladder. Standard violated: 1926.450(a)(9). * Proposed penalty $35.00.

9. No fire protection in change house and trailer storing paint and paint thinner and wiping rags. Standard violated: 1926.150(c). * Proposed penalty $35.00.

10. No first aid kit or supplies and work located more than 15 minutes from hospital or clinic. Standard violated: 1910.151(b) and 1926.50(d). * No penalty.

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* 29 C.F.R. 1926 was formerly 29 C.F.R. 1518.

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After proper notice, the [*10] hearing was held July 20, 1972, at Montgomery, Alabama. No parties or party desired to intervene in the proceedings. The respective parties were capably represented by counsel.

THE FACTS

Carl Frazier, a Safety and Health Compliance Officer, employed by the United States Department of Labor, in the Occupational Safety and Health Administration (known in the agency as OSHA) was offered by the petitioner as a witness having knowledge of the alleged violations and proposed penalties. The witness Frazier testified that he made an inspection of respondent's work site on March 20, 1972, a bridge being constructed over the Alabama River from Interstate 65 North to Highway 231, contacting a Mr. Isom, foreman, (T. p. 11, 12, 18 - 19, see Exhibits 1 and 3); he took photographs (P Exhibit 2, T. p. 12 -- 16) and observed a scaffold at heights above approximately 40 feet (the height of the scaffold was stipulated by the respective parties), (P Exhibit 2, T. p. 22) which hung from girders by means of a "U shaped frame" which clamped over the plate girder, being anchored to the girder by a single rope and hook (T. p. 22 -- 30, P Exhibit 4); that these frames, from which the scaffold [*11] was hung, were approximately seven feet in height and approximately two feet between the cross bars of the frame (P Exhibit 4); that the platform "wasn't as wide as his foot was long" (T. p. 31) or approximately 12 inches; that there were no guard rails on the scaffold, nor intermediate rails, nor toe boards (T. p. 32 - 35); that an employee was observed "standing in the web of the girder" (P. p. 35, P Exhibit 2, photograph No. 2) having climbed up from the scaffold (T. p. 36) and that while a portable ladder was on the scaffold it did not reach a stationary ladder affixed to a girder.

The witness Frazier further described the scaffold as a two-point suspension "because it is secured at only two points" referring to the ropes attached to hooks which anchored the metal frames to the girders (T. p. 39) for without these ropes the frames would "fall." The witness Frazier also described a typical two-point suspension scaffold as "one that comes from the roof down the side wall or down a pier or another face . . . with each side of the platform hung by a separate rope."

The witness further testified that he observed two employees working on the platform and one employee on [*12] the ground under the platform.

The witness Frazier testified that the proposed penalties were derived in accordance with procedures as outlined by the Secretary of Labor reducing the maximum penalty amount by giving credit to good faith, size of the business and history of respondent.

On cross-examination, witness Frazier stated he observed the scaffold from a distance of about sixty feet; that a fiber rope was used to anchor the metal frames to the girder; that the platform "would tend to be stationary" and that the two employees on the platform did not have a lanyard attached to safety lines.

Gene R. Isom, foreman, at the work site, testified that a rope beam hook was over the girders (T. p. 82); that respondent did furnish safety belts with hooks and while on the suspension platform the lanyard was hooked onto a girder; that he had been instructed to use safety belts by respondent; and that from the base of the platform to top of girder, was six feet and four feet to bottom of girder (T. p. 88).

James M. Stroud, employee, testified that there was one rope on each side of the platform used to anchor the metal frame and that he used safety equipment on dates of investigation (T. [*13] p. 91 -- 93).

McRae Gingo testified that he was owner of respondent company (T. p. 93) that a two-point suspension scaffold is a type of scaffold called a stage board, suspended by two sets of falls, down side of building; that the scaffold in use on March 20, 1972, was a stationary scaffold, suspended by hanging end of frames over a girder about 20 to 30 feet apart with tidboard (platform) between the frame anchored by means of a safety hook across the beam (girder) (T. p. 93 - 113).

THE LAW

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 employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty up to $1,000.

Section 17(c), as pertinent, provides that any employer who receives a citation which is specifically determined not to be of a serious nature, may be assessed a civil penalty up to $1,000 for each such 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 [*14] 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(j), 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 is in a place of employment, unless the employer did not and could not with the existence of reasonable diligence, know of the violation.

OPINION

The principal issue of this case is whether the respondent was properly cited for violation of the Occupational Safety and Health Act. The complainant contends that there was a violation of use of the two-point suspension scaffolding and cited violations of standards 1926.451(i)(1), 451(i)(12), 451(i)(5), 451(i)(9), non-serious violations, and 1926.451(2)(8) and 451(i)(11), serious violations. The respondent contends that the scaffold in use on the inspection date, March 20, 1972, was not a two-point suspension type scaffold and possibly the type in use was not contemplated within the standard, Title 29, 1926 (formerly 1518) Safety and Health Regulations for Construction. [*15]

The burden of proof rests upon the petitioner. If this burden is not carried, the complaint cannot be sustained. When a violation has been alleged of a particular standard, the applicability of the standard must be proven by clear, convincing propondered evidence.

Turning to Standard 1926.451(i)(1), we find reference to "(Swinging scaffolds) two-point suspension." Then turning to section 1926.452, "Definitions applicable to this part," we find "(34) two-point suspension scaffold (swinging scaffold)" -- A scaffold, the platform of which is supported by hangers stirrups at two points, suspended from overhead supports so as to prevent the raising or lowering of the platforms to the desired working positions by tackle or hoisting machines.

Quite apparently, the same type of mechanism anchored over a girder by a fiber rope through which a platform is placed as used by the respondent on March 20, 1972, is not contemplated within the Standards cited by the petitioner. Petitioner's witness Frazier mentioned an entirely different type of scaffolding which he described as a two-point suspension scaffold. Certainly, it must be concluded that he did not see, from a distance of sixty feet, [*16] the type scaffolding he had in mind when he testified at the hearing. It could be that the distance confused him or obstructed his view for the scaffold as used by respondent is not susceptible of the definition of the two-point suspension scaffolding as mentioned within the cited standards. Therefore, the petitioner has not established by proponderance of the evidence violations of the cited standards.

Turning to item 5 of Citation No. 1, the petitioner offered no evidence in respect to this alleged violation. Significantly, the standard 1926.105(a) refers to safety nets when the work place is more than 25 feet above the ground or water surface and then the standard further states ". . . where use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impracticable." The respondent was using a scaffold and there is no indication on the part of the petitioner that the use of such was impracticable.

With respect to Item 8, Citation No. 1, it is clear from the record the respondent did not have a ladder on the platform and consequently, the standard 1926 was violated.

The petitioner failed to show by affirmative evidence that the respondent [*17] was an employer engaged in business affecting commerce Section 3(5) of the Act, and since the respondent denied this allegation evidence thereof must be proven or the petitioner's case falls for lack of jurisdiction. However, the record does show affirmatively that the respondent was engaged at a work site, spraying paint on a girder of a bridge being built over the Alabama River, a part of the Interstate Highway System. It has been held that such work does affect commerce. See Overstreet v. North Shore Corporation, 63 S. Ct. 494, 496, 497; Wirtz v. Crystal Lake Crushed Stone Company, 327 F.2d 455, at 457.

On the constituted record, the petitioner has failed to prove by substantial evidence violations of standards 1926.451(i)(8) and 1926.451(i)(11) set out in citation for serious violation No. 1, nor has he proven violations of the following: Item No. 1, Standard 1926.451(i)(1), Item No. 2, Standard 1926.451(i)(2), Item No. 3, Standard 1926.451(i)(5), Item No. 4, Standard 1926.451(i)(9) and Item No. 5, Standard 1926.105(a).

The respondent has admitted violations of the Citation No. 1, non-serious na are, the following: Item No. 6, Standard 1926.103(a)(2) [*18] with proposed penalty of $35, Item No. 9, Standard 1926.150(c) with proposed penalty of $35 and Item No. 10, Standard 1910.151(b) and 1926.50(d) with no proposed penalty.

The record further establishes violations by the respondent of the following, not of a serious nature, Citation No. 1, Item No. 7, 1926.450(a)(1) with no proposed penalty and Item No. 8, 1926.450(a)(9) with proposed penalty of $35.

The remaining question concerns the appropriateness of the proposed penalties for Item 6, 7, 8 and 9, Citation No. 1, not of a serious nature, with total penalty of $140.

Section 17(j) of the Act provides:

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

The petitioner gave due consideration to this section of the Act, when it considered and assessed the proposed penalties. I find no fault with the method of assessing the amount of the penalties as used by the Secretary. However, the Occupational Safety and [*19]

The Commission is of the opinion that the principal purpose of this Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor monetary penalties do little to effectuate this objective. We, therefore, will look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the case.

With the above criteria in mind, I am of the opinion that the penalties as suggested by the petitioner for the violations admitted by the respondent and those as noted in this decision would add little to effectuate the objectives of the Act. Apparently, this was the first violation committed by respondent and it had indoctrin ated its employees in some safety practices, particularly in use of safety belts. Furthermore, respondent had in its employment at the job site only three or four employees.

CONCLUSIONS OF LAW

1. The respondent is, and was at all times relevant to the issues herein, engaged in a business affecting [*20] commerce within the meaning of section 3(3) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, at all times material herein, an employer within the meaning of section 3(5) of the Act and subject to its provisions under sections 4(a) and 5(a) of the Act and the standards authorized by section 6.

3. Items 6, 9 and 10, Citation No. 1, having been conceded are deemed final orders of the Commission.

4. The constituted facts do not disclose a situation falling within the Citation for Serious Violation No. 1 and Items 1, 2, 3, 4, Citation No. 1, in that the scaffold in use by respondent on inspection date was not a two-point suspension, swinging scaffold. Therefore, the standards cited are inapplicable.

5. The petitioner has failed to sustain the burden of proof of violations of item 5, Citation No. 1.

6. The petitioner has sustained the burden of proof of items 7 and 8, Citation No. 1, alleging violations of 1926.450(a)(1) and 1926.450(a)(9).

7. The proposed penalties totaling $140.00, while not unreasonable do nothing to effectuate the purpose of the Act I.e., to insure a safe healthful workplace and no penalties should be assessed.

ORDER [*21]

Therefore, it is ordered that

1. Citation for serious violation No. 1 and items 1, 2, 3, 4 and 5, Citation No. 1 are vacated.

2. The petitioner's complaint of violations items 6, 7, 8, 9 and 10, Citation No. 1 is affirmed.

3. The proposed penalties for violations set forth in paragraph 2 are vacated.

[By the Commission: Order of Reinstatement -- June 5, 1972]

WORCESTER, JUDGE, OSAHRC: The Notice of Contest is dismissed since the employer has not, as directed by the Commission, timely furnished certification of compliance with the service requirements of the Commission's Rules of Procedure. The Secretary's citation and proposed penalty are AFFIRMED in all respects.