KEHM CONSTRUCTION CO.
OSHRC Docket No. 76-2154
Occupational Safety and Health Review Commission
December 18, 1979
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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Henry C. Mahlman, U.S. Department of Labor
Thomas Monaghan and Malcolm D. Young, for the employer
OPINION:
DECISION
BY THE COMMISSION:
On April 25, 1977, Administrative Law Judge Paul E. Dixon issued a decision in this case finding that respondent, Kehm Construction Company, had committed a single serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 [hereinafter "the Act"], by failing to comply with the standards codified at 29 C.F.R. § 1926.451(d)(10) and 29 C.F.R. § 1926.500(d)(2). n1 The Judge assessed a penalty in the amount of $750.
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n1 29 C.F.R. § 1926.451(d)(10) provides:
§ 1926.451 Scaffolding.
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(d) Tubular Welded frame scaffolds.
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(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a) (6) of this section.
29 C.F.R. § 1926.500(d)(2) provides:
§ 1926.500 Guardrails, handrails, and covers.
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(d) Guarding of open-sided floors, platforms, and runways.
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(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above the floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.
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The Secretary of Labor [hereinafter "the Secretary"] filed a Petition for Discretionary Review, seeking review by the full Commission with respect to two issues. The issues are (1) whether the Judge had erred in finding that the violation was not willful within the meaning of the Act, and (2) whether the Judge erred in excluding certain testimony proffered by the Secretary. The petition was granted by Chairman Cleary pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).
As a result of an inspection of respondent's worksite in Omaha, Nebraska, on April 8, 1976, a citation was issued to respondent alleging a single willful violation of the Act for failure to comply with two standards codified at 29 C.F.R. § 1926.451(d)(10) and 29 C.F.R. § 1926.500(d)(2). The citation contains two subitems and reads as follows:
Citation 1, item 1(a):
Employees were working from a tubular-welded frame scaffold which had working levels from approximately 20 to 23 feet above ground level. Guardrails and a midrail or other equivalent protection was not provided on all open sides and ends.
Citation 1, item 1(b): [*3]
The open-sided runway joining two sections of scaffold near the northeast corner of the building was not guarded by a standard railing or the equivalent.
A penalty in the amount of $4,250.00 was proposed.
The record establishes that neither the scaffold nor the runway were in compliance with the cited standards. There was no protection whatsoever either on the ends of the scaffold or on the runway. Cross-bracing provided some protection at certain locations along the scaffold's exposed outer side. Other locations along the side of the scaffold were unprotected.
Complainant's evidence of the willful violation of the Act consists of testimony of the compliance officer regarding his personal observations during the inspection, and evidence, both testimonial and documentary, of numerous occasions on which respondent had been advised of deficiencies in the protection provided on its scaffolds. n2
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n2 Complainant sought to admit the testimony of another compliance officer who had previously advised one of respondent's foremen of the Act's scaffold requirements. The Judge sustained respondent's objection to the admission of this testimony on the grounds that it was not relevant. However, the Judge accepted the Secretary's offer of proof and permitted the witness to testify. This procedure enables the Commission to consider whether the Judge's ruling on relevancy was correct and is consistent with Commission Rule of Procedure 74(b), 29 C.F.R. § 2200.74(b). We find, however, that the evidence of record supports the finding of a willful violation with respect to the scaffold without considering the proffered testimony. We, therefore, find it unnecessary to the resolution of the case to decide whether the Judge erred in excluding the proffered testimony.
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The evidence establishes that the question of scaffold safety was repeatedly brought to respondent's attention by David C. Witt, project engineer for the general contractor, The Weitz Company, at periodic project meetings of the general contractor. At the first such meeting, held on August 12, 1975, a written general safety policy was distributed to all subcontractors. Respondent was represented at that meeting by its vice-president, Don Koeppe. The policy relating to scaffolds stated the following:
Scaffolds over 10 feet high shall be equiped [sic] with a standard guardrail.
Immediately following this statement of policy was the following definition of a standard guardrail:
A standard railing consists of a top rail (42" high) midrail (1/2 way between top rail and the floor) and toeboard, (4" high).
At a meeting on December 8, 1975, shortly after respondent had begun exterior masonry work requiring the use of scaffolds, respondent's representative, Koeppe, was advised by the project engineer that ". . . [respondent's] bricklayer's scaffold safety is not up to OSHA standards." According to the [*5] minutes of that meeting "[a]ll foremen were informed of this fact and instructed to rectify the situation."
The minutes of the next meeting, December 22, 1975, state that "Kehm Construction Company was reminded that their scaffold is to have a safe handrail on it in order to meet OSHA standards." Respondent's vicepresident, Koeppe, again represented respondent at the meeting. Shortly thereafter, William G. Anderson, the project manager for the Waldinger Corporation, the mechanical contractor for plumbing, heating and air conditioning, sent the Weitz Company a letter enumerating safety deficiencies that he had personally observed. In that letter, dated January 14, 1976, it was stated that:
During a tour of the subject project site on Monday, January 12, 1976, we were alarmed at the number of apparent job hazards and/or violations of OSHA. The conditions noted include but are not limited to the following:
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4. The bricklayer's scaffold does not conform with safety requirements regarding foot support, planking overhang, guardrails, toeboards, loading of materials, anchorage to building structure and in general appears to present a great threat to personal safety. (OSHA paragraphs [*6] 1926.250(b)(5) and 1926.451(d)).
Additionally, Waldinger's project manager enclosed a copy of the pertinent standards, encircling the specific paragraphs to which the letter referred. Following receipt of this letter by the Weitz company, respondent's foreman, John Ruffino, was personally contacted by Mr. Witt and advised of the deficiencies with instructions to comply with the requirements.
The subject of the requirements of a safe scaffold was again raised at the next project meeting on January 19, 1976. The minutes of that meeting reflect that:
It has been noted that the safety program initiated by the Weitz Co., which is to be carried out by each subcontractor has become somewhat laxed [sic] lately. . . . Kehm Const. was instructed to make their scaffolds OSHA safe before any workmen begin working on them. All scaffolds more than one jack high are to have guardrails, midrails and toeboards. . . .
At the meeting of April 5, 1976, the scaffolding of respondent was discussed for the fifth time. According to the minutes, "Kehm was instructed to construct their scaffold more along the lines of the regulations." Specifically, respondent's deficiency was indicated as unacceptable [*7] "handrails." Respondent's vice-president, Koeppe, was again in attendance at this meeting. The inspection that resulted in the citation in this case was conducted three days later.
In addition to the repeated reminders at the project meetings, Homer West, the project superintendent for the Weitz Company, testified that respondent was advised about "once every two weeks" that there were no guardrails on the scaffolds.
Respondent's foreman testified that respondent's interpretation of the standards led it to conclude that the cross-supports at the outer side of its scaffold satisfied the requirement of a guardrail. On cross-examination, however, the same foreman admitted that it was clear, following a reading of the standards, that respondent's scaffold did not satisfy the requirements for guardrails.
The Secretary has taken the position, at the hearing and before us now, that respondent willfully violated the provisions of the act with regard to scaffold and walkway guarding requirements. The Secretary argues that the conduct of respondent demonstrates plain indifference to the requirements of the Act and reckless disregard for the safety of its employees. The Secretary also [*8] argues that respondent did not act in good faith concerning compliance with the standards.
Respondent argued before Judge Dixon and now argues on review that the "Secretary has failed to establish . . . either intentional disregard of, or plain indifference to the safety requirements of [the cited standards]."
Judge Dixon sustained the allegation of a serious violation of both standards but vacated the charge of willfulness on the ground that respondent's supervisor, Ruffino, did not commit acts which were deliberate, voluntary, or indifferent to the requirements of the Act. The Judge found that Ruffino merely misapprehended the provision of the Act n3 and was not diligent in his supervision of respondent's employees. Judge Dixon further found that respondent acted in good faith at all times. The Judge thereupon found the violation not to be willful, relying on Graven Brothers & Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD P20,544 (No. 2538, 1976).
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n3 Respondent argues in its brief that this conclusion amounts to a "credibility" finding that should not be reversed because it is "the proper domain of the trial judge." The argument is without merit. Respondent's foreman testified only that it was respondent's interpretation that cross-supports would satisfy the requirements of the standard. Regardless of the belief of respondent's foreman regarding the protection afforded by cross-supports, parts of the scaffold and runway were totally unprotected. There can be no question of misapprehension of the standard's requirements with respect to unprotected areas. Respondent's foreman also testified that he knew that after reading the standard in question, it was clear that respondent's scaffold did not comply.
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For the reasons that follow, we modify the Judge's findings that the violation for failure to comply with § 1926.451(d)(10) was not willful and reject respondent's argument.
The Review Commission defines "willful violation" as action taken knowingly by one subject to the statutory provisions of the Act in disregard of the action's legality. No showing of malicious intent is necessary. A conscious, intentional, deliberate, voluntary decision in violation of a standard is properly described as willful. Kent Knowlin Construction, Inc., 77 OSHRC 22/A2, 5 BNA OSHC 1051, 1977-1978 CCH OSHD P21,550 (Nos. 9483, 9485, and 9522), aff'd, No. 77-1258 (10th Cir. Mar. 2, 1979); P.A.F. Equipment Company, 79 OSAHRC , 7 BNA OSHC 1209 (No. 14315, 1979), appeal docketed, No. 79-1398 (10th Cir. May 7, 1979). n4 In addition, a willful violation may be based on conduct marked by a careless disregard of the requirements of a standard or of employee safety. National Steel & Shipbuilding Company, 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), appeal docketed, [*10] No. 78-2695 (9th Cir. Aug. 3, 1978).
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n4 This position is consistent with the views of the First, Fourth, Fifth, Sixth, Eighth, and Tenth Circuit Courts of Appeals. Western Waterproofing v. Marshall, 576 F.2d 139 (8th Cir. 1978), cert. denied, U.S. , 99 S.Ct. 452 (1978); Intercounty Construction Company v. OSHRC, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976); Georgia Electric Company v. Marshall, 595 F.2d 309 (5th Cir. 1979); Kent Nowlin Construction Company v. Marshall, supra; Empire Detroit Steel Division, Detroit Steel Corp. v. Marshall, 579 F.2d 378 (6th Cir. 1978); F.X. Messina Construction Corp v. OSHARC, 505 F.2d 701 (1st Cir. 1974). See also Cedar Construction Company v. OSAHRC, 587 F.2d 1303 (D.C. Cir. 1978).
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In the present case, the facts establish the willfulness of respondent's failure to equip its scaffolding with a toprail, midrail, and toeboard. The facts show [*11] that both respondent's vice-president and foreman were aware of what type of guardrails were required by the Act. This knowledge is imputable to respondent. Georgia Electric Company, 595 F.2d 309 (5th Cir. 1979). The course of conduct followed by these two representatives of respondent over a period of months establishes a careless disregard of the requirements of the Act, if not a deliberate choice not to install the standard guardrails and toeboards. The evidence of the repeated efforts over a period of months by representatives of the Weitz Company, the general contractor, and the Waldinger Corporation, the mechanical contractor, to convince respondent to comply with the Act's requirements for guardrails could not have been more clear. Continuous references were made to the absence of guardrails on respondent's scaffold at the weekly progress meetings, which were attended by respondent's vice-president. The January 16, 1976, letter from Waldinger's project manager to the Weitz Company made the point, indicating that "[t]he bricklayer's scaffold does not conform with safety requirements. . . ." On no fewer than a half dozen occasions, respondent was advised that guardrails [*12] were not installed on its scaffolds. Nevertheless, on the date of the inspection in April 1976, the required guardrails were absent.
The conclusion of willfulness is not rebutted by respondent's asserted reliance on cross-bracing as adequate protection. First, parts of the scaffold were totally unprotected. Second, respondent's foreman admitted, upon reading the cited standards, that respondent's scaffolds did not satisfy the requirements of the standards. Finally, in light of the many comments respondent received regarding its scaffolds, it must be concluded that respondent's foreman and vice-president were aware of the specific requirements of the applicable standards. Under these circumstances, respondent's failure to take positive steps to comply with the standards constitutes at least a careless disregard of the mandate of the Act. See Brown & Root, Inc., 79 OSAHRC , 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979). The Judge's reliance upon Graven Brothers is also erroneous. In Graven Brothers, the employer and the Secretary had a "good faith" difference of opinion as to the nature of the soil in which the company was excavating. This difference [*13] of opinion went to a factor which, depending upon who prevailed, would determine whether the standard in question applied. Here, respondent does not argue that the standard did not apply, but that it made a "good faith" attempt to comply with its provisions. Rather, as discussed above, the facts support the conclusion that respondent carelessly disregarded the requirements of the standards with respect to its scaffolds. Accordingly, we find that respondent willfully violated the Act with respect to subitem 1(a) for its failure to install standard railings on the scaffolding. Georgia Electric Company, supra.
The Secretary argues on review that subitems 1(a) and 1(b) comprised one willful violation. The evidence of willfulness consistently refers to respondent's scaffold. Nowhere in the evidence is the runway specifically mentioned. We, therefore, find that the evidence does not support a finding of willfulness with respect to the runway violation. The facts do support, however, the Judge's finding that the runway violation is serious within the meaning of section 17(k) of the act. n5 On review, the parties do not dispute the finding of seriousness. Accordingly, we [*14] will affirm subitem 1(b) as a serious violation of the Act.
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n5 29 U.S.C. § 666(j).
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The Secretary proposed a single penalty in the amount of $4,250.00 for the proposed single willful violation comprised of both the unguarded scaffold and runway without apportioning the amount between the subitems. Because we have affirmed the scaffold violation as willful and the runway violation as serious, we will assess a separate penalty for each.
We find that the violations were of high gravity. Nineteen employees were exposed to the hazardous scaffold and runway at the time of the inspection. The noncompliant scaffold and runway were more than 20 feet above the ground. There is evidence that there were pieces of mortar on the planking that could cause an employee to slip. The ground beneath both the scaffold and runway was strewn with briefs, boards and other debris that increased the likelihood of injury in the event of a fall. Respondent has been cited previously for several nonserious violations of the Act. Respondent [*15] employed approximately 26 individuals at this worksite. With respect to the scaffold, we have found the violation to be willful. Therefore, applying the penalty assessment criteria of section 17(j) of the Act n6 to these facts, we find that a penalty of $2,500,00 is an appropriate assessment for the willful scaffold violation, and that $750.00 is appropriate for the serious violation for the unguarded runway. Therefore, a penalty in the total amount of $3,250.00 is assessed.
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n6 29 U.S.C. § 666(i).
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Accordingly, we modify the decision of Judge Dixon with respect to subitem 1(a) of the citation and find that respondent has willfully failed to comply with the scaffold guardrail requirements set forth at 29 C.F.R. § 1926.451(d)(10). We affirm the Judge's finding of a serious violation for failure to comply with the standard at 29 C.F.R. § 1926.500(d)(2). A total penalty in the amount of $3,250.00 is assessed. It is so ORDERED.