MEL JARVIS CONSTRUCTION CO.
OSHRC Docket No. 77-2100
Occupational Safety and Health Review Commission
September 30, 1981
[*1]
Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
John W. Mize, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge James A. Cronin is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Cronin concluded that the Mel Jarvis Construction Company ("Respondent") committed a serious violation of the Act by failing to comply with the scaffolding standard at 29 C.F.R. § 1926.451(i)(8). n1 Commissioner Cleary directed review on whether the judge erred in ruling that the violation was not willful as alleged by the Secretary of Labor ("the Secretary"). For the reasons that follow we conclude that the violation was not willful and affirm the judge's decision.
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n1 Section 1926.451 provides:
§ 1926.451 Scaffolding.
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(i) (Swinging scaffolds) two-point suspension.
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(8) On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall be protected by an approved safety life belt 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 employee in case of a fall. In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be appropriately changed as the work progresses.
[*2]
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In June 1977, two of Respondent's employees were killed when the two-point suspension scaffold from which they were working dropped 105 feet to the ground. The entire scaffolding system, including the platform on which the workers were standing, the steel cables from which the platform was suspended ("suspension lines"), and the rooftop anchors ("outriggers") fell away from the building because the outriggers were not properly secured to the roof. Although the employees were wearing safety belts, they were not saved from the fall because their belts were tied off to the "climbers." "Climbers" are electrical hoisting devices attached to the two ends of the platform. The steel cable suspension lines wind around the climber drums, moving the platform up and down the side of the building. When the platform, climbers and suspension lines all fell away from the building, so did the employees.
As a result of an investigation of the incident, Respondent was cited for failure to comply with the standard at 29 C.F.R § 1926.451(i)(8), the relevant portion of which provides:
Each employee shall be protected [*3] by an approved safety life belt 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 employee in case of a fall.
At the hearing Respondent's general superintendent testified that he had instructed the employees to tie off to the climbers because he believed that the steel cable suspension lines which wind around the climbers are "securely rigged lines" within the meaning of the standard. It had been his view that tying off to the climbers satisfied the standard because the climbers are securely attached to the steel cables. He further testified that it is industry practice to tie off to climbers and described how tying off to climbers protects employees from falling from the scaffold platform.
Judge Cronin concluded, and we agree, that section 1926.451(i)(8) does not permit tying off to any part of a scaffold's hoisting mechanism. The standard expressly prohibits tying off to the "scaffold," and as defined in related provisions of the scaffolding standards, a scaffold includes not only the platform on which employees stand, but also all supporting structures. [*4] See 29 C.F.R. § 1926.452(27) (a scaffold is "[a]ny temporary platform and its supporting structure used for supporting workmen or materials or both"); 29 C.F.R. § 1926.452(34) (a two-point suspension scaffold is a "scaffold, the platform of which is supported by hangers (stirrups) at two points, suspended from overhead supports so as to permit the raising or lowering of the platform to the desired working position by tackle or hoisting machines"). By prohibiting the attachment of lifelines to any part of the platform or its supporting structure, the standard creates a dual protective purpose: to protect employees from falling from the platform and to protect employees from falling with the platform and its supporting structures should the entire system fail. As this incident tragically demonstrates, tying off to the hoisting mechanism defeats the second of the standard's dual protective purposes. n2 For these reasons, and in light of the gravity of the hazard, Judge Cronin properly concluded that Respondent had committed a serious violation of that Act. He also ruled, however, that Respondent "exhibited an intent to comply with, not violate, the scaffolding standard" [*5] and that the violation was therefore not willful. It is from this aspect of his ruling that the Secretary has appealed.
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n2 Although the parenthetical phrase, "not scaffold," follows only the first of the two disjunctive clauses, we do not conclude from this that the second disjunctive clause, "or to securely rigged lines," permits tying off to a part of the supporting structure. The first disjunctive establishes that the standard has a dual protective purpose. Were we to interpret the absence of the "not scaffold" parenthetical after the second clause as permitting tying off to the supporting structure, we would effectively read out of the standard one of those two purposes. It is an elementary principle of statutory construction that all parts of a statute are to be given their full effect whenever possible. United States v. Menasche, 348 U.S. 528, 538-39 (1955). This principle applies equally to resolution of ambiguities in administrative regulations. See Rucker v. Wabash R.R. Co., 418 F.2d 146 (7th Cir. 1969); New Ikor, Inc. v. McGlennon, 466 F.Supp. 136 (D.Mass. 1978).
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A violation is willful in character if it was committed "with either an intentional disregard of, or plain indifference to, the Act's requirements." St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981), and cases cited at note 12 therein; Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.), cert. denied, 439 U.S. 965 (1978). A violation is not willful "if the employer had a good faith opinion that the violative conditions conformed to the requirement of the cited standard." C.N. Flagg & Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975) (good faith belief concerning a factual matter critical to the existence of the violation); see also General Electric Co., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977 CCH OSHD P21,853 (No. 11344, 1977), and General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1975 CCH OSHD P19,567 (No. 2739, 1975), rev'd in part on other grounds, 542 F.2d 67 (2d Cir. 1976) (good faith misinterpretation of the terms of the cited standard).
The test of an employer's good faith, for purposes of determining [*7] willfulness, is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances. See Western Waterproofing Co. v. Marshall, supra.
In the instant case Respondent argues that its failure fully to comply with the cited standard was not intentional or due to indifference to the Act's requirements. Respondent asserts that it did in fact attempt to comply with section 1926.451(i)(8) and that the failure to do so completely was the result of Respondent's good faith misinterpretation of the phrase "securely rigged lines." We agree. Respondent did attempt to comply with the standard by assuring that its employees used safety belts, and this did achieve at least one of the standard's purposes, to protect employees from falling from the platform. Although, for the reasons outlined above, we have concluded that tying off to suspension lines is not the same as tying off to "securely rigged lines," we recognize that an employer could in good faith conclude that steel cables, when properly secured to the building's roof, are "securely rigged lines." In addition, uncontradicted evidence [*8] produced by Respondent that tying off to the hoisting system is widely practiced in the industry tends to show that Respondent did not fabricate this defense to willfulness "after the fact."
Accordingly, the judge's decision is affirmed. n3
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n3 The Secretary also takes exception to the order of the judge insofar as he assessed a penalty of $1,000 rather than the $7,000 proposed by the Secretary. Section 17(b) of the Act, 29 U.S.C. § 666(b), provides that the maximum penalty for a serious violation shall be $1,000. Inasmuch as we have affirmed the judge's ruling that Respondent's violation was serious but not willful, the maximum assessment allowable is $1,000.
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SO ORDERED.