BECHTEL POWER CORPORATION

OSHRC Docket No. 77-3222

Occupational Safety and Health Review Commission

August 31, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Michael A. Floyd and James H. Hartl, for Respondent Bechtel Power Corporation

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Henry K. Osterman is before the Commission 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 Osterman vacated a citation issued by the Secretary of Labor ("the Secretary") to Respondent, Bechtel Power Corporation ("Bechtel"), following an employee's fatal fall from a scaffold and the Secretary's subsequent inspection of the accident site in Pottstown, Pennsylvania, where Bechtel was engaged in constructing a nuclear power plant. The Secretary's citation alleged that Bechtel had failed to comply with the standards at 29 C.F.R. 1926.451(e)(5) n1 and 29 C.F.R. 1926.451(e)(8) n2 and proposed a penalty of $900 for these alleged violations, which were characterized as serious. n3 The judge vacated the citation based on his conclusion that the Secretary had failed to establish Bechtel's knowledge of the allegedly violative [*2] conditions. The Secretary petitioned for review of the judge's disposition of both items and Commissioner Cleary directed review on the issues raised by the petition.

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n1 The standard at 29 C.F.R. 1926.451(e)(5) provides:

1926.451 Scaffolding.

* * *

(e) Manually propelled mobile scaffolds.

* * *

(5) A ladder or stairway shall be provided for proper access and exit and shall be affixed or built into the scaffold and so located that when in use it will not have a tendency to tip the scaffold. A landing platform must be provided at intervals not to exceed 35 feet.

The citation alleged:

Proper and safe access was not provided to employees working on top of the 24 foot high mobile scaffold in the Turbine Enclosure Unit #1 in that the positioning of the ladder below an overhead beam required the employees to reach out and up to gain access to the scaffold platform. This resulted in an accident to an employee on 8/24/77.

n2 The standard at 29 C.F.R. 1926.451(e)(8) provides:

1926.451 Scaffolding.

* * *

(e) Manually propelled mobile scaffolds.

* * *

(8) Scaffolds in use by any persons shall rest upon a suitable footing and shall stand plumb. The casters or wheels shall be locked to prevent any movement.

The citation alleged:

The casters or wheels on manually propelled mobile scaffold were not locked to prevent movement:

a) Turbine Enclosure Unit #1 -- three unlocked wheels on 5X7 safeway scaffold.

n3 The Secretary subsequently moved to amend his citation and complaint to charge a violation of section 5(a)(1), 29 U.S.C. 654(a)(1), of the Act as an alternative to the alleged failure to comply with the standard at 1926.451(e)(5). For the reasons developed infra, the Commission concludes that the cited standard is applicable here. It is well established that the applicability of a standard precludes citation to the general duty clause. Brisk Waterproofing Co., Inc., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973). Accordingly, the Commission does not consider the parties' arguments on review concerning the alternative allegation under the general duty clause.

[*3]

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For the reasons stated below, the Commission concludes that the Secretary established noncompliance with both cited standards and that Bechtel's noncompliance with section 1926.451(e)(5) was a serious violation of the Act, as alleged. However, the Commission also concludes that Respondent's failure to comply with section 1926.451(e)(8) was a de minimis violation of the Act and therefore neither a penalty nor an abatement requirement for that violation is warranted.

I

The fatal incident giving rise to the citation on review involved a Bechtel pipe welder, Zaleski, who was performing an assigned task on top of a scaffold (scaffold "O") that was located alongside a wall inside the plant under construction. For approximately one week, Zaleski and another welder, Kertes, had been using a ladder affixed to an adjacent scaffold (scaffold "X") whenever they needed to gain access to scaffold "O", because the ladder on "O" was too short -- by 6 or 8 feet -- to reach the scaffold platform. n4 Scaffold "X" was a single-tower, mobile scaffold on four wheels, with a 5X7-foot platform that was 24 feet above [*4] the ground. It was situated in such a manner that the edge of the platform to which its ladder was attached was located beneath a horizontal beam passing overhead. As described later by Kertes at the hearing, Zaleski climbed up the scaffold ladder and, as he neared the platform level, he reached for the top guardrail. When Zaleski grabbed the rail, it tore loose from the scaffold. n5 Zaleski fell backward from the scaffold and landed on the ground. He never regained consciousness.

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n4 The record also indicates that two other ladders would have afforded access to scaffold "O". Nevertheless, based on one of the exhibits introduced by Bechtel, it does not appear that either provided as direct access to Kertes and Zaleski's work station. Moreover, Hagan, one of Bechtel's safety representatives, testified that one of these ladders also appeared to be too short.

n5 Much of the record is devoted to the possible unauthorized modification of the guardrails on the scaffold -- Kertes denied that he had tampered with the guardrail -- and to the failure of the employees to report this unsafe condition to Bechtel supervisors, as required by company workrules. This evidence formed part of the basis of Bechtel's unpreventable employee misconduct defense. Nevertheless, we conclude that this evidence (and Bechtel's arguments in support of this aspect of its unpreventable employee misconduct defense) need not be considered further, because the basis of the alleged violation is the positioning of the scaffold ladder, not the condition of the perimeter guarding on the scaffold platform.

[*5]

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At the hearing before Judge Osterman, the Secretary's compliance officer testified that, as a result of the presence of the overhead beam, one was prevented from going up to a standing position and stepping off the ladder at the same level as the scaffold platform: "It would force him to be holding onto the ladder with one arm and one leg and he would have to whip his leg up onto the platform . . . approximately two to three feet." The compliance officer, who climbed the scaffold himself during his inspection, stated that the beam impeded the progression of the climber up the ladder. The union steward, who followed the compliance officer up the ladder during the inspection, also referred to the dangerous transition from the ladder to the platform -- "Well, the left hand, you had to grab up higher and then swing actually your body into the scaffolding to get over to the scaffolding . . . You could not step on there, no." -- and cited the overhead beam as a cause of the access problem. Kertes recalled that the scaffold platform was so close to the ceiling that one could not stand up. In describing [*6] the transition from the ladder, Kertes stated, "You had your left hand on the ladder, left foot at a ladder rung, put your knee on the scaffold and just crawled in." Thus, an employee, instead of alighting from the ladder in a standing position and then bending over to enter the platform between the top and mid-rails, would necessarily have to dismount the ladder from below the level of the platform and then grasp a guardrail and pull himself up to the platform and through the guardrails.

The record indicates that, according to company policy, the carpenter foreman was responsible for inspecting scaffolds when they were erected, modified or moved. n6 Scaffold "X" was "reworked" by three carpenters under the direction of the carpenter foreman two days before the accident and the record indicates that the scaffold was located beneath the beam at that time. The carpenter foreman testified that he probably passed by the scaffold many times in the period between the "rework" and the accident, but he could not recall if he had observed the entire scaffold. The record also reveals that some employees at the worksite complained to their union steward about unsafe access to scaffolds several [*7] weeks prior to the incident in question. There is no evidence that any of these complaints concerned the specific scaffold described in the citation, although the complaints involved scaffolds in the same general area.

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n6 Bechtel's "Safe Practices" booklet provides:

Each scaffold must be inspected and approved by responsible supervisory personnel prior to initial use and after alteration or moving.

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II

A

In his decision, Judge Osterman found that the beam's location directly above the scaffold made it impossible to step directly from the ladder to the scaffold, thereby necessitating that Zaleski haul himself up a distance of approximately 2 feet from a rung on the ladder to the platform of the scaffold. Without explicitly holding that section 1926.451(e)(5) was applicable here, the judge assumed that the positioning of the ladder on the scaffold and its relationship to the platform violated the standard because "proper access and exit" to and from the platform was not provided. Nevertheless, the judge found that [*8] the Secretary had failed to show that Respondent had prior knowledge, either actual or constructive, of a potential hazard to its employees. On this basis, the judge vacated this item in the citation.

B

On review, Bechtel argues that section 1926.451(e)(5) simply requires that the employer furnish a stairway or ladder; the standard in its view does not address the issue of the positioning of the mobile scaffold to avoid overhead obstructions. Contrary to Judge Osterman's analysis, Bechtel insists that the words "for proper access and exit" are mere surplusage, for they merely explain why the drafters required a ladder on a mobile scaffold. Bechtel contends that, if these words are to be interpreted by the Secretary to mean something other than simply locating the ladder so that it will not have a tendency to tip the scaffold when it is in use, then the standard is vague and unenforceable.

Citing Perini Corporation, 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977), Bechtel also asserts that the Commission has held that employers may rely on the standards for ladders contained in Subpart L as prescribing the exclusive requirements for the types [*9] of ladders to be used on mobile scaffolds. It argues in effect that a violation of section 1926.451(e)(5) cannot be sustained in the absence of a showing of noncompliance with ladder specification standard. Thus, Bechtel states that its obligation under the standards was to provide a ladder which was affixed or built into the scaffold and so located that, when in use, it would not have a tendency to tip the scaffold, and which had side rails extending at least 36 inches above the platform landing. Bechtel declares that it satisfied all of these requirements and, hence, there was no violation.

Alternatively, Bechtel contends that, even under the Secretary's interpretation of the standard, the Secretary did not sustain his burden of proving that the means of access provided was improper. In effect it argues that the employees obtained access in the customary manner by climbing through the guardrails and that the overhead beam did not obstruct this access.

Bechtel further asserts that it rebutted any presumption of employer knowledge of the alleged violative condition by introducing evidence that the use of the scaffold in question by Kertes and Zaleski was an unknown, isolated [*10] incident of employee nonconformance with Bechtel's safety program. Bechtel insists that there is no evidence either that it required any employee to use the mobile scaffold at that location at the time of the alleged violation or that it had knowledge of the employees' use -- which was not foreseeable -- of the scaffold, in noncompliance with Bechtel's work rules.

C

At the outset, the Commission must determine whether section 1926.451(e)(5) includes a requirement that the means of access provided be safe. The Commission concludes that the standard contains this requirement. n7 The recent case of H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD P25,985 (Nos. 78-204 & 78-205, 1982), presented a similar interpretative issue involving a different but related standard governing scaffolding, section 1926.451(a)(13). n8 There, we rejected the employer's argument that compliance with the standard was achieved simply by providing a ladder even though the ladder did not provide complete access across a 2-foot gap to the scaffold in question. We noted that the plain meaning of the standard is that safe access must be provided at all points between the lower elevation [*11] and the scaffold. In addition, we rejected the employer's argument that the cited standard was unenforceably vague, concluding that the term "safe access", as used in the standard, was not unclear, and also rejected the contention that the Secretary must prove noncompliance with a ladder specification standard in order to prove a violation of section 1926.451(a)(13).

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n7 Commissioners Cleary and Cottine join in this subpart (II C) of the Commission's decision. Chairman Rowland's views are stated in his separate opinion.

n8 The standard at 29 C.F.R. 1926.451(a)(13) provides:

1926.451 Scaffolding.

(a) General requirements.

* * *

(13) An access ladder or equivalent safe access shall be provided.

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We conclude that, consistent with the holdings of H. E. Weise, Bechtel's contentions concerning the proper interpretation of section 1926.451(e)(5) must be rejected. The requirement of section 1926.451(e)(5) to provide "proper access" imposes the same obligation as that contained in section 1926.451(a)(13) [*12] to provide "safe access." Therefore, we conclude that the objective of section 1926.451(e)(5) is to provide employees with safe access -- "proper access and exit" -- to mobile scaffolds by means of a ladder or stairway. This objective cannot be achieved if, as Bechtel argues, an employer is required merely to provide a ladder that may or may not afford "proper access and exit." Cf. H.E. Wiese, Inc., supra. To read this standard narrowly to require an employer simply to provide a ladder or stairway, but not to require that the employer ensures that the ladder is so positioned as to provide "proper access and exit", would (1) improperly read that phrase out of context and in a manner contrary to the purposes of the Act and (2) improperly shift responsibility for occupational safety and health from the employer to the employee, cf. Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 (No. 77-2115, 1982) (under section 1926.451(a)(13), an employer must not only provide but also ensure use of an "access ladder or equivalent safe access" when employees seek to gain access to scaffolding). As in H. E. Wiese, we also reject Bechtel's argument that [*13] the cited standard is unenforceably vague, for a ladder or stairway that poses hazardous access to the scaffold platform plainly does not provide "proper access and exit." Moreover, we conclude that Bechtel's reliance on Perini Corp. is misplaced because the issue there was whether the means of access provided by the employer was a "ladder" within the meaning of the cited standard, not whether it provided "proper access and exit." Perini Corp. interprets section 1926.451(e)(5) as requiring a ladder to meet certain minimum specifications, for example, distances between rungs. However, for the reasons discussed, section 1926.451(e)(5) also requires an employer to provide a ladder which is positioned to afford "proper access and exit."

The next issue for determination is whether Bechtel complied with its obligation under the cited standard. The Secretary presented two witnesses, the compliance officer and the shop steward, who testified that the presence of the overhead beam directly above the ladder prevented employees from stepping off the ladder onto the platform at the level of the platform and, thus, subjected employees to the hazard of falling from the platform to the [*14] ground 24 feet below. Both witnesses testified that employees had to swing their legs up to reach the platform. This testimony is substantiated by the photographic evidence, which demonstrates that the vertical distance between the overhead beam and the scaffold platform was clearly less than the width of the platform itself, which Bechtel concedes to be 5 feet. In addition, the Secretary's contention that the beam obstructed access is further corroborated by Kertes' testimony that he could not stand up on the scaffold's platform. Judge Osterman found that Zaleski could not step directly from the ladder to the floor of the platform. We conclude that this finding is supported by a preponderance of the evidence as set forth above and, based on this finding, we further conclude that the ladder's positioning beneath the beam did not afford the "proper access and exit" which the standard requires.

Respondent's argument to the contrary is unpersuasive, for although Bechtel introduced testimony that the customary practice at construction worksites was to climb through the guardrails in order to gain access to a scaffold platform, the record does not indicate that customary practice [*15] also embraced swinging one's leg up some 2 feet in the air and pulling oneself up to the scaffold platform so that one could then climb through the guardrails. It is not the practice of climbing through the guardrails that is at issue in this case, but rather it is the necessity of pulling oneself up a distance of approximately 2 feet to the level of the platform before one can climb through the guardrails.

The evidence establishes that Respondent failed to comply with the requirements of the cited standard. In addition, it is undisputed that employees had access to the hazard. In order to prove that an employer committed a violation, the Secretary must also show that the employer knew or, in the exercise of reasonable diligence, could have known of the violative condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981). The record does not reflect actual knowledge by Bechtel of the violative condition involving the scaffold. However, we conclude that there is ample evidence to support a finding of failure to exercise reasonable diligence. First, Kertes and Zaleski openly and regularly climbed up and down the scaffold [*16] in question during the week prior to the accident. Second, the carpenter foreman -- who was responsible for inspecting a scaffold after it had been moved or altered, e.g., after it was "reworked" two days before the accident -- admitted that he had passed the scaffold many times in the period between this reworking and the accident. We note Bechtel's evident failure to inspect the scaffold, as its own safety manual requires. It is well-settled that an employer must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed in the course of their scheduled work. Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD P24,495 (No. 76-5089, 1980). Here, the record indicates that the scaffold had been in the same position for about one week, yet no corrective action was taken regarding the positioning of the ladder. Finally, Respondent was specifically alerted to similar problems involving safe access to nearby scaffolds several weeks before the fatal accident. Thus, we conclude that the Secretary established that Bechtel could, with the exercise of reasonable diligence, have known of the violative [*17] condition involving failure to afford proper access and exit as required by section 1926.451(e)(5) and, therefore, we reverse the judge's finding that Bechtel lacked actual or constructive knowledge.

Bechtel raises the affirmative defense of unpreventable employee misconduct, asserting that the two employees should not have been using the scaffold in question as access to their work station on an adjacent scaffold and that they failed to report the dangerous condition to Bechtel. The Commission has held that it will sustain the unpreventable employee misconduct defense only if an employer demonstrates that an employee's conduct was a departure from a uniformly and effectively communicated and enforced work rule. H.B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981). Bechtel's warning to report "any unsafe practice" or "any questions concerning safety in the use of scaffolds" is too general to be regarded as an effective work rule directed to this specific hazard. See J.K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD P21,585 (No. 12354, 1977) and cases cited. Bechtel [*18] did have a work rule which states "Do not take shortcuts. Use appropriate ladders, ramps, stairways, and paths." However, there is no persuasive evidence in the record that the ladder in question was not "appropriate" within the meaning of this work rule. Kertes and Zaleski were performing an assigned task which required them to stand on scaffold "O". The record indicates that the ladder in question provided the most direct route, excluding other means of access that were in effect unusable, to the area where Kertes and Zaleski were assigned to work. See note 4 supra and accompanying text. The record indicates that Kertes and Zaleski openly, regularly, and frequently used this route to get to their job assignment. Yet there is no record evidence that they were ever told that the ladder was inappropriate or that they were ever instructed to use another means of access. Therefore, Bechtel did not demonstrate any departure from a work rule in this instance. Accordingly, we conclude that Bechtel failed to establish the unpreventable employee misconduct defense. We further conclude that Bechtel's noncompliance with section 1926.451(e)(5) constituted a serious violation of [*19] the Act as alleged by the Secretary, inasmuch as it exposed employees to a potential fall of 24 feet.

III

In his decision, Judge Osterman also vacated the citation item alleging noncompliance with section 1926.451(e)(8). Specifically, the citation alleged that three of the four wheels on the scaffold Zaleski fell from were unlocked. The judge simply stated that "there is no evidence that Respondent had prior knowledge, actual or constructive, that the wheels on certain portable scaffolds were unlocked and that employees were thus exposed to the hazard." On review, Bechtel supports the judge's reasoning and also offers alternative grounds for vacating this portion of the citation. It does not dispuce that, on the day of the inspection, three of the four wheels were unlocked, but it charges that the Secretary presented no evidence that the wheels were unlocked at the time of the accident. Thus, Bechtel contends, the Secretary failed to prove employee exposure to noncomplying conditions. Moreover, even if some of the wheels were unlocked at the time of the accident, Bechtel continues, the record indicates through the testimony of a paramedic that the scaffold was immobile and, [*20] thus, the citation must be vacated because there was no hazard. Finally, Bechtel states that its work rule required employees to lock the wheels when a scaffold is not in motion, yet Kertes testified that neither he nor Zaleski ever checked to see if the wheels were locked on those occasions when they ascended the scaffold. Therefore, Bechtel concludes it cannot be held liable for the employees' noncompliance with its safety rules.

The uncontradicted evidence establishes that three of four scaffold wheels were unlocked at the time of the inspection that occurred on the day following the accident. In view of the testimony that Bechtel immediately took steps to preserve the site in the condition it was in at the time of the accident, it is reasonable to conclude that the wheels had not been altered during the interval between the accident and the inspection. Accordingly, the Commission concludes that the Secretary established Bechtel's noncompliance with the cited standard. n9

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n9 Chairman Rowland and Commissioner Cleary join in Part III of the Commission's decision. Commissioner Cottine joins only in the conclusion, supra, that the Secretary established Bechtel's noncompliance with the cited standard. With this exception, his separate views are stated in note 10, infra.

[*21]

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Nevertheless, we conclude that Bechtel's argument that its noncompliance did not create a hazard is supported by the record. We note that the Commission has found violations to be de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of an abatement requirement or the assessment of a penalty. Bethlehem Steel Corporation, 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD P25,645 (No. 77-617, 1981), appeal docketed, No. 81-2802 (3rd Cir. Oct. 30, 1981). Here, the record establishes that, immediately following Zaleski's fall, a paramedic called to the scene was unable to move the scaffold "at all" while applying "[a]s much force as [he] was humanly capable [of applying] in a crouched position next to Mr. Zaleski." Kertes testified that the scaffold shook as he climbed but it was not alarming because it was normal for a scaffold to wobble a little. This assessment was echoed by the union steward. On this record, we conclude that the possibility of injury as a result of the unlocked wheels was too remote [*22] to warrant the imposition of an abatement requirement or the assessment of a penalty and, hence, the de minimis classification is appropriate. n10 In light of this holding, we need not reach the parties' other arguments. n11

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n10 Chairman Rowland emphasizes that the fatal fall was not due to the failure to lock all the wheels on the scaffold. Rather, as explained previously, the fatal fall occurred when Zaleski grabbed the top guardrail and pulled the guardrail loose. Therefore, Chairman Rowland disagrees with the suggestion that the occurrence of the accident supports characterizing the violation as serious.

Chairman Rowland also notes that a violation cannot be sustained unless the Secretary shows, among other things, employer knowledge of the non-complying condition. There is no evidence that Bechtel had actual knowledge of the unlocked wheels on scaffold "X". Nor does the record suggest that Bechtel could, with the exercise of reasonable diligence, have known of the unsecured wheels. Although Bechtel's supervisory personnel observed other scaffolds prior to the inspection, those scaffolds were 50 to 60 feet away. Indeed, even if the supervisory personnel had observed scaffold "X", it appears they would have concluded that the scaffold was in compliance, because scaffold "X" was marked with a tab which, according to Bechtel's work procedures, could not be attached unless the scaffold were completed and checked by the foreman. Furthermore, it is not dispositive that the shop steward discovered another scaffold with unlocked wheels; not only did his discovery involve a different scaffold, but his discovery did not occur at the time of the alleged violation. Accordingly, Chairman Rowland concludes that the Secretary did not establish that Bechtel knew or, with the exercise of reasonable diligence, could have known that three of the wheels on scaffold "X" were unlocked. While Chairman Rowland would normally vacate an alleged violation when, as here, the Secretary failed to show employer knowledge, Chairman Rowland agrees with Commissioner Cleary's decision to find a de minimis violation in order to reach a consensus in this case.

n11 Commissioner Cottine dissents to the de minimis classification of the violation. He would reject Bechtel's contention that, even if the wheels were unlocked, the scaffold was shown to be immobile at the time of the accident, based on the testimony of the paramedic who attempted without success to move the scaffold by himself. In Commissioner Cottine's view, the fact that the crouching paramedic alone could not move the scaffold -- which the Secretary established would take two persons to move under normal circumstances -- did not show that the scaffold was immobile. Furthermore, the paramedic's testimony does not establish that the scaffold was not subject to movement if the scaffold was tipped due to a weight shift at the top -- 24 feet above the floor. The crucial question is the effect of force applied 24 feet above the wheels. The record does not establish that failure to lock the wheels has only a negligible relationship to the stability of the scaffold.

In addition, Commissioner Cottine notes that before a de minimis violation can be affirmed the Secretary must establish a prima facie case and any affirmative defense raised by the Respondent must be found to be without merit. Inasmuch as the majority ignores those prerequisites to affirmance of any violation and merely discusses the de minimis characterization of the alleged violation, it is necessary to address the other issues on review. He concludes that the Secretary established that Bechtel could, with the exercise of reasonable diligence, have known of the violative condition involving the failure to lock the wheels of the mobile scaffold, and he would reverse the judge's contrary finding. The evidence demonstrates that the unlocked condition of the wheels was not concealed from view and that Bechtel supervisory personnel passed by the scaffold frequently on the days prior to Zaleski's fall. Also, Bechtel had a workrule requiring inspection of all scaffolds following any alterations, and no such inspection was made.

Commissioner Cottine would also reject Bechtel's affirmative defense of unpreventable employee misconduct. Although Bechtel had a workrule requiring locking the wheels of mobile scaffolds, it cannot successfully defend on the basis of that workrule where its supervisors failed to inspect the scaffold as required. To sustain the defense an employer must have an adequate workrule that is uniformly and effectively communicated and enforced. H. B. Zachry, 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981). Where the employer does not conduct proper inspections to detect scaffold violations it has not shown uniform and effective enforcement of its safety rule. See, e.g., Paul Betty d/b/a Betty Bros., 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHD P25,219 (No. 76-4271, 1981). Other evidence that Bechtel's workrules were not adequately communicated or enforced includes: (1) Kertes' ignoring the rule to lock scaffold wheels during the week prior to the accident and (2) the union Steward's discovery of unlocked wheels on another mobile scaffold in use at the time of the inspection. The consequences of a fall from the improperly secured 24-foot scaffold could and did prove fatal. Accordingly, Commissioner Cottine would affirm the citation item as a serious violation of the Act.

[*23]

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For the foregoing reasons, Judge Osterman's vacating of the citation is reversed. The allegation of noncompliance with section 1926.451(e)(5) is affirmed as a serious violation of the Act. The allegation of noncompliance with section 1926.451(e)(8) is affirmed as a de minimis violation. Considering the gravity of the violation and Bechtel's size, good faith and prior history, the Commission assesses a penalty of $900 for the serious violation.

SO ORDERED.

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, dissenting in part:

I join the lead opinion in affirming a de minimis violation of section 1926.451(d)(8). However, I dissent from Commissioners Cleary and Cottine's determination that Bechtel violated section 1926.451(e)(5). I would vacate the alleged violation of section 1926.451(e)(5) and the alternatively alleged violation of section 5(a)(1).

As the majority notes, this case is analogous to H.E. Wiese, Inc., a case involving the interpretation of a similar standard, section 1926.451(a)(13). Consistent with my opinion in Wiese, a violation of the "proper access and exit" language [*24] in section 1926.451(e)(5) cannot be sustained, in my view, unless the Secretary shows non-compliance with other requirements in subpart L, or unless the Secretary shows other objective criteria which would indicate that the means of access and exit was "not proper." H.E. Wiese, supra, 10 BNA OSHC at 1508-9, 1982 CCH OSHD at p. 32,617 (dissenting opinion) and cases cited.

The Secretary did not introduce any evidence suggesting that the ladder to scaffold "X" did not comply with the other standards in subpart L. Indeed, the compliance officer's testimony on cross-examination, as well as the pictorial evidence, indicates that Bechtel's ladder complied with the specifications in subpart L.

Furthermore, the record does not show the existence of other objective factors which would have apprised Bechtel that the means of access and exit provided by the ladder was not "proper." Contrary to the majority's assertion that the location of the ladder below the beam required an employee to "swing . . . [his] leg up some 2 feet in the air and pull . . . [himself] up to the scaffold platform", the compliance officer's testimony and the Secretary's own pictures establish that the employees [*25] could have climbed to a level nearly adjacent to the platform. n12 Significantly, the shop steward -- upon whose testimony the majority relies -- stated that prior to the accident, neither he, nor the non-supervisory employees, nor the managerial personnel, considered the overhead beam to be a "problem" which interfered with access to the scaffold. n13 Since the Secretary did not establish either non-compliance with the other standards in subpart L or other objective criteria which would indicate that access was not "proper", I would vacate the alleged violation of section 1926.451(e)(5).

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n12 For example, one of the Secretary's pictures, Exhibit C-7, shows the shop steward ascending the ladder. The compliance officer testified that in the picture, the shop steward's waist was approximately level with the platform, and that the distance from the shop steward's head to the beam was two and one-half feet. Thus, when crouching to slide between the guardrails, the shop steward could obviously climb a number of feet above his position in Exhibit C-7 before entering the platform.

n13 In this regard, I disagree with the majority's assertion that Bechtel was alerted to "similar problems" involving access to other "nearby" scaffolds. Although Bechtel was aware of other scaffolds for which access was temporarily blocked until corrective action was taken, the access to those scaffolds was obstructed by vertical beams, whereas the access to the scaffold in issue involved an overhead horizontal beam. Scaffold "X" was fifty to sixty feet from those scaffolds for which access was temporarily blocked. There were numerous scaffolds on the premises. Moreover, no employees complained about access to scaffold "X".

[*26]

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I note that the testimony of both the Secretary's and Bechtel's witnesses suggest that the gist of the Secretary's case was that the scaffold floor itself was allegedly too high. In reality, the Secretary was not concerned about the location of the ladder. However, neither the cited standard nor any other standard in subpart L addresses the minimum clearance between the roof and the scaffold floor. If the Secretary seeks to require a minimum distance between the roof and the scaffold floor, he has the means and the obligation to do so by promulgating a specific standard. But he cannot distort an existing standard to impose an additional requirement. See B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1371-2 (5th Cir. 1978).

Moreover, I would vacate the alternatively alleged violation of section 5(a)(1), assuming that a section 5(a)(1) charge is proper. To establish a violation of section 5(a)(1), the Secretary must prove, among other things, the feasibility and likely utility of his proposed abatement methods. E.g., Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1666, [*27] 1976-77 CCH OSHD P21,071, p. 25,361 (No. 4533, 1976).

The Secretary's witnesses discussed three means of abatement: installing a small "outrigger" platform between the ladder and the scaffold platform, relocating the ladder so it was not beneath the beam, and installing a gate in lieu of stationary guardrails at the entrance area. n14 It is undisputed that an outrigger platform would not be feasible because it would tip the scaffold. Regarding the second method of abatement -- relocation of the ladder -- Bechtel's carpenter foreman stated that it was possible to move the ladder from beneath the beam in about one hour. However, moving the ladder would not be useful because the height of the scaffold would remain the same. As the majority acknowledges, Kertes testified, without contradiction, that the scaffold platform was so close to the ceiling that he could not stand upright. Furthermore, even if the ladder were relocated to another position unobstructed by the horizontal beam, an employee ascending the ladder would still be required to crouch when departing from the ladder and sliding between the mid and upper guardrails. Similarly, a swinging gate apparatus would not alleviate [*28] the clearance between the roof and the scaffold platform. Moreover, to find a section 5(a)(1) violation based on the failure to furnish a swinging gate would essentially permit the Secretary to circumvent his own regulations, which require stationary guardrails on all open sides -- including the access area -- and which make no mention of swinging gates at the access point. See 29 C.F.R. section 1926.451(e)(10). Accordingly, I would affirm the judge's vacation of the citation.

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n14 Respondent's carpenter foreman also mentioned the use of safety belts and lanyards, but the feasibility of that method of abatement was not discussed by the Secretary's witnesses.

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