Docket No. 773

ELMER VATH, PAINTING CONTRACTOR

OSHRC Docket No. 773

Occupational Safety and Health Review Commission

July 2, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before ths Commission in accordance with our orders directing review of a decision by Judge Alan M. Wienman. Judge Wienman concluded that Respondent had committed one serious and one non-serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to comply with regulations promulgated pursuant to the Act. An aggregate penalty of $700 was assessed.

We have reviewed the record and find no prejudicial error therein. Accordingly we affirm the decision of the Judge in all respects with the following exception.

Judge Wienman stated that a general contractor is responsible under the Act for the safety and health of all employees on a worksite, including the employees of subcontractors. As authority for this proposition he cited the decision of Judge Leon J. Moran in Gilles & Cotting, However, subsequent to Judge Wienman's decision the Commission reversed Judge Moran. Gilles & Cotting, BNA 1 O.S.H.R. 1388, CCH Employ. S. & H. [*2] Guide para. 16,763 (Rev. Com'n., 1973). We therefore specifically disclaim Judge Wienman's use of Gilles & Cotting.

Accordingly, the decision of the Judge is hereby ORDERED affirmed.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part); MORAN

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in Commissioner Van Namee's affirmance of the Judge's finding that respondent failed to comply with standards at 29 CFR § 1926.451(i)(8) and 29 CFR § 1904.8. The first standard requires the use of safety life belts and lifelines by employees working on two-point suspension scaffolds (swinging scaffolds). The Judge found, and I agree, that respondent did not meet his responsibility to supervise adequately the use of life belts by his employees. Respondent did not supply life belts until advised to do so by a State safety technician. He gave no instructions for their use, and also testified that he felt no responsibility for his employees' safety except where they asked for help.

I would find respondent also in violation, however, for failing to comply with the general scaffolding requirements set forth at 29 CFR § 1926.451(a)(2). That standard requires sound and rigid [*3] anchorage for all scaffolds. Respondent's scaffold apparently was suspended from two beams laid on the roof of the building respondent's employees were painting. One end of each beam extended beyond the wall of the building, and the opposite ends were weighed down on the roof by sandbags. The evidence is clear, as the Judge found, that beams were not properly secured. Complainant cited respondent for inadequate anchorage under more specific requirements, 29 CFR § 1926.451(g)(1) and (2), relating to outrigger scaffolds. I concur with my colleague's affirmance of the Judge's finding that the outrigger scaffold requirements do not apply. I do so, however, only on the narrow grounds that § 1926.451(g) apparently relates only to unfinished buildings. ( E.g., reference in § 1926.451(g)(2) to floor joists, which would seem impractical as anchors for scaffolds once the flooring in a building is completed.)

Although the specific standards in paragraph (g) do not apply, the more general requirements of § 1926.451(a)(2) do apply. The allegations in the complaint were broadly couched and the facts asserted at the hearing were tried without objection. They were sufficient [*4] to give notice to respondent under section 5(a)(3) of the Administrative Procedure Act (5 U.S.C. § 554(b)(3)) and an opportunity to contest alleged improper anchoring of its scaffold under the general provision. n1 Section 1926.451(a)(2) is broad enough to cover respondent's scaffold, regardless of its particular type.

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n1 See National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 at 1263-4 (D.C. Cir. 1973); cf. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 490 F. 2d 1105 (2d Cir. 1973).

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I have one additional comment to make. Commissioner Van Namee disassociates himself from the Judge's dicta concerning the general contractor's responsibility for the safety and health of his subcontractors' employees. I do not. For further exposition of my views on the subject, see my dissenting opinions in Humphreys & Harding, Inc., No. 621 (May 9, 1974); Gilles & Cotting, Inc., No. 504 (October 9, 1973); J.E. Roupp & Co., Inc., and Denver Dry Wall Co., Nos. 146 and 147 (consolidated) [*5] (April 15, 1974).

I concur in the affirmance of the Judge's decision in all other respects.

MORAN, CHAIRMAN, dissenting: This case arises out of a fatal accident to a painter who fell 60 feet from a scaffold when one of the beams from which it was suspended slipped. He had been wearing a safety belt but had unhitched it minutes prior to the accident. It is my opinion that this respondent is not chargeable with any violation of this Act as the result of this incident because the evidence is insufficient to show that the painter who fell to his death, Charles Pope, was an employee of respondent. There is no evidence that this respondent had any employees exposed to the hazards resulting from the charges filed in this case. In fact, the evidence clearly shows that respondent had only one employee: his son, Kenneth. There is no allegation that Kenneth was exposed to any hazard.

If an employer employs one or more persons on a regular basis, he is an "employer" for jurisdictional purposes under this Act. See 29 U.S.C. § 652(5).

However, because that fact is established, as is the case here, a violation of 29 U.S.C. § 654(a)(2) does not necessarily result.

An employer [*6] cannot be held in violation of the Act if the employees are not affected by noncompliance with the standard. Secretary v. City Wide Tuckpointing Service Co.,

Complainant cannot, for purposes of this Act, create an employement relationship where the evidence fails to establish that one in fact exists. See Secretary v. Dore Wrecking Co., Various factors, taken in the aggregate, need be shown for there to be an employment relationship.

Control -- and more specifically, the right of control -- over a worker is one such crucial consideration. Secretary v. Gilles & Cotting, Inc., Other relevant indicators are the source of the worker's pay, the authority empowered to discharge a worker, and the length of time for which a person is employed. See Secretary v. Southeast Contractors,

In this case respondent had a contract to paint a store front for the Burpee Seed Company. At some point he decided to hire one Rodriquez, a man with whom he had never worked, to paint the cornice across the front [*7] of the building. Rodriquez agreed to do this work for $240.00, regardless of the number of hours worked or the number of men needed to complete the job. Rodriquez then decided to share the work with his brother-in-law, Charles Pope, who was then an unemployed painter. Rodriquez and Pope agreed among themselves to split both the work and the $240.00 evenly between them. Rodriquez also provided some of the essential materials for the job. It was he who also decided how the job would be completed, including the hours and days to be worked. Clearly, it was a contract for completion of a specific project of brief duration.

This evidence fails to establish that any employer-employee relationship existed between respondent and either Rodriquez or Pope, the deceased herein. It is unnecessary to determine whether Rodriquez and Pope were independent contractors or joint venturers, for complainant must establish "employee" exposure to a hazard as an essential element of proof. In this, he has failed. I therefore believe that the charges against the respondent should have been dismissed for failure of proof.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: [*8] This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting Citations issued by the Complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of the workplace under the ownership, operation or control of the Respondent located at the Burpee Seed Co. Building, 615-625 North Second Street, Clinton, Iowa, that the Respondent violated the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations issued March 28, 1972, allege both serious and non-serious violations of the Act.

The Citation for serious violations set forth the alleged violation in the following form:

Standard or Regulation Allegedly Violated Formerly Part 1518 -- Description of Alleged Violation -- Date on Which Alleged Violation Must be Corrected

29 CFR 1926.451(i)(8), page 7377, Column 1, 1926.451(g)(1), page 7376, Column 2, and 1926.451(g)(2), page 7376, Column 2. -- Employee working from suspended scaffold did not have safety belt and lanyard on in a secured manner. The outrigger [*9] scaffold did not have the fulcrum point secured against movement. The outrigger scaffold did not have the inboard side of the outriggers secured, which caused an employee to fall approximately 60 feet to his death. (Roof of Burpee building.) -- Immediately

The above alleged violation was cited from the Federal Register, Volume 36, Number 75, dated April 17, 1971.

The standard codified as 29 CFR 1926.451(g)(1) provides, as herein pertinent, that outrigger beams on outrigger scaffolds shall be secured in place against movement and shall be securely braced at the fulcrum point against tipping.

The standard codified as 29 CFR 1926.451(g)(2) provides, as herein pertinent, that the inboard end of outrigger beams shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement.

The March 28, 1972, Citation for non-serious violations alleged that the Respondent failed to post a poster to advise his employees that they were covered under the Act in violation of 29 CFR 1903.2. (However, the Complaint later filed in the case made no reference to this alleged violation, and no testimony was introduced [*10] relative to the matter. This charge is therefore deemed to have been abandoned by the Complainant.)

Also alleged as a non-serious violation was the charge that Respondent failed to report within 48 hours, either orally or in writing, to the Area Director of the Occupational Safety and Health Administration ths occurrence of an employment accident which was fatal to an employee as required by 29 CFR 1904.8.

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated March 28, 1972, from Warren Wright, Area Director of the Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty for the alleged serious violation in the amount of $700 and a penalty of $200 for the alleged failure to report the fatal accident.

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Clinton, Iowa, on September 14, 1972. At the conclusion of Complainant's case, counsel for Respondent made an oral motion for a "directed verdict" on grounds set forth on pages 119-121 of the transcript. The Judge reserved [*11] his ruling upon the motion, requesting briefing on the various points raised in the motion. Counsel for Respondent renewed the motion at the close of Respondent's case, and the Judge again indicated that he would reserve a ruling on the motion until counsel briefed the points in issue.

THE ISSUES

The issues for decision include the following:

(1) Whether the Respondent was an "employer" within the meaning of the Act;

(2) Whether the Respondent failed to report within 48 hours the occurrence of an employment accident fatal to an employee. This issue in turn depends on whether the deceased workman Charles Pope was an "employee" of the Respondent within the meaning of the Act; and

(3) Whether the Respondent violated the safety standards as alleged in the Citation for serious violation, and, if so, what penalty is appropriate.

SUMMARY AND DISCUSSION OF THE EVIDENCE

The Jurisdictional Issue: Is Respondent an "Employer"?

Elmer Vath testified that he had been a painting contractor for 42 years; he lives in Clinton, Iowa, but approximately 10% of his work has been in Illinois. Almost all jobs have been commercial buildings, schools, churches, etc. He rarely paints residences. [*12] When he worked on buildings in Illinois he normally received a check mailed from Illinois to his home in Iowa. He purchases most of his paint from a Sherwin and Williams store in Iowa. This paint is not manufactured in Iowa but he did not know where it originates. He presently has one employee, his son Kenneth. He has not had more than one employee for a couple of years, except for a period of one week last year.

The statutory definition of employer found in Section 3(5) of the Act is "a person engaged in a business affecting commerce who has employees. . ." While no court decision has yet dealt with any questions concerning the extent of coverage provided by the Act, the Occupational Safety and Health Administration has issued a policy statement in the form of regulations clarifying the Administration position regarding this matter. These regulations, codified in 29 CFR 1975.1 through 1976.6, expound a most inclusive view of the Act, citing Section 2(b) of the Act which emphasizes the congressional purpose "to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve human resources. . . ." The regulations [*13] declare in 29 CFR 1975.3 that --

The legislative history, as a whole, clearly shows that every amendment or other proposal which would have resulted in any employee's being left outside the protections afforded by the Act was rejected. The reason for excluding no employee, either by exemption or limitation on coverage, lies in the most fundamental of social purposes of this legislation which is to protect the lives and health of human beings in the context of their employment.

The regulations further state:

In carrying out the broad coverage mandate of Congress, we interpret the term 'business' in the above definition as including any commercial or non-commercial activity affecting commerce and involving the employment of one or more employees; the term 'commerce' is defined in the Act itself, in Section 3(3). Since the legislative history and origin of the statute, itself, indicate that Congress intended the full exercise of its commerce power in order to reduce the employment -- related hazards, which, as a whole imposes a substantial burden on commerce, it follows that all employments where such hazards exist or could exist (that is, those involving the employment [*14] of one or more employees) were intended to be regulated as a class of activities which affects commerce. 29 CFR 1975.3

The Secretary urges that the published position of the Occupational Safety and Health Administration with regard to coverage be viewed as an "informed judgment to which courts and litigants may properly resort for guidance." We cannot help but note the self-serving function of the Regulations with regard to coverage under the Act, but are constrained to agree that the legislative history and purpose of the Act are consistent with the view that employing one employee is sufficient to constitute Respondent an employer. The evidence fairly supports the finding that Respondent is engaged in a business affecting commerce since he conducts his business in two states, purchases and uses paint manufactured in states other than Iowa, etc. A more difficult question concerns the relationship of Respondent to the deceased workman Charles Pope, but Respondent is clearly a person who has employees and is engaged in a business affecting commerce regardless of his relationship to the deceased painter.

The Non-Serious Violation: Was Charles Pope an "Employee"?

The question of [*15] whether the deceased workman, Charles Pope, whose death was unreported in alleged violation of 29 CFR 1904.8, was an "employee" of the Respondent within the meaning of the Act appears to be one of first impression. No Court has as yet construed the somewhat tautologous definition of "employee" set forth in Section 3(6) of the Act: "The term 'employee' means an employee of an employer who is employed in a business of his employer which affects commerce."

Surprisingly enough, the legislative history of the Act is virtually free of any discussion of Section 3(6). Whether Congress intended the traditional common law rules of master and servant to apply to Section 3(6) or whether it was opting for some broader interpretation of the employment relationship cannot be gleaned from either committee reports or congressional debate.

What clues do exist as to proper construction of Section 3(6) are largely negative, i.e., deliberate omissions from the statute speaking with the inferential voice of Sherlock Holmes' non-barking dog. Congress has frequently dealt with the employment relationship when enacting social legislation. On occasions it has expressly applied common law rules [*16] to exclude independent contractors from the employment orbit. Examples of this type of definiton are found in the Social Security Act and the National Labor Relations Act. In other areas, notably the Fair Labor Standards Act, there is no reference to common law rules or express exemption of independent contractors. "Employee" is broadly defined in Section 3 of the Fair Labor Standards (29 USC 203) as ". . . any individual employed by an employer . . . with certain exceptions pertinent to agriculture." That Congress intended a liberal interpretation of "employee" under the Fair Labor Standards Act becomes abundantly clear from Section 203(g) wherein "employ" is defined as "to suffer or permit to work." (29 USC 203)(g))

Occupational Safety and Health Act definition of "employee" contains neither restrictive references to common law rules nor liberalizing provisions which convert all individuals suffered or permitted to work on a jobsite to employees of the employer in control of the premises. It follows then that "congress had in mind a wider field than the narrow technical relation of 'master and servant,' as the common law had worked this out in all its variations, [*17] and at the same time a narrower one than the entire area of rendering service to others." The quoted language is from NLRB v. Hearst Publications, 64 S. Ct. 851, 857. The Court was construing a definition similar to the one in Section 3(6). It approved the statement that "the primary consideration in the determination of the applicability of the statutory definition is whether effectuation of the declared policy of the Act comprehends securing to the individual the rights guaranteed and protection afforded by the Act."

In the instant case the Respondent, a small painting contractor boasting one employee, contracted to paint the Burpee Seed Building (Tr. 13). This is a three-story building, 30 to 40 feet tall (Tr. 38). Sometime in late February, 1972, Elmer Vath entered into an agreement with one Leon I. Rodriquez, an unemployed painter, relative to the "high work," i.e., painting the cornice across the front of the building for $240 (Tr. 131). The job could not be done by one man alone, and it was understood that Rodriquez would have one man working with him (Tr. 133). Vath would furnish the paint and scaffolding material, and the men would supply their own brushes and scrapers [*18] (Tr. 137).

A writing dated February 29, 1972, purporting to document the agreement states:

furnish materials by . . . Elmer Vath . . . And I Leon Rodriquez will paint front of store . . . $240.

There was some dispute as to the date the writing was executed and who wrote what words. Rodriquez testified he had an understanding with his brother-in-law, Charles Pope, another unemployed painter, that Pope would help him and "we'd just split it down the middle" (Tr. 77).

Elmer Vath supplied the scaffolding material which was assembled on the roof by Kenneth Vath and Charles Pope (Tr. 89). The painting began on February 29th. Elmer Vath gave Rodriquez no instructions or orders (Tr. 97). Late that afternoon Nick Rajcevich, a State of Iowa Bureau of Labor field safety technician, inspected the site and noted some scaffolding safety violations. He talked to Rodriquez who stated he was employed by Elmer Vath (Tr. 54. Rajcevich then detailed five separate scaffolding safety requirements on a Construction Safety Report issued to "Contractor Elmer Vath Co." (Exhibit R-1). Among other items, this report noted absence of railings and safety life belts. Rodriquez took the report [*19] to Elmer Vath who then supplied a 2 X 4 for a bag rest (Tr. 79). He also supplied a safety belt for Pope (Tr. 98).

Mr. Vath did not report Pope's death to the OSHA area director, taking the position that Pope was not in his employ. It is urged by Respondent's counsel that Pope was either an independent contractor, a joint venturer with Rodriquez, or an employee of Rodriquez.

We do not agree with this view, although it is supported by the presence of certain characteristics which customarily negate an employer-employee relationship under traditional common law rules. The most salient of these is the fact that Mr. Vath exercised no control over the details of the work. Arrayed against this is the fact that Respondent did furnish the material and necessary appliances -- a circumstance which lends support to a master-servant relationship at common law.

More important than either of the above-cited factors, however, are the economic realities surrounding the arrangement. Painting contractors do not customarily sub-contract portions of a job to unemployed painters who lack the materials or means to accomplish the work, Rodriquez and Pope supplied labor. The fact that [*20] Respondent did or did not withhold Social Security taxes or acknowledge the two painters as his employees to satisfy the dictates of any other state or Federal social legislation does not alter the fundamental fact that he was hiring labor for a fixed fee. There was some testimony about the cost of the work if done by union painters at union rates, but our concern is not with the motivation for the arrangements. Rather, it is that the fundamental aims of the Act not be frustrated -- by accident or design -- by labels which deny or subvert the truth.

Rodriquez was not an independent contractor while working on the Burpee Building. He was employed by Respondent, and he was Respondent's agent in hiring Pope. Considering the nature of the statute and the purpose for which it was enacted, there can be no other logical conclusion than a finding that Pope was an employee of Elmer Vath. Respondent therefore was subject to the mandate of 29 CFR 1904.8 which imposed a duty to report Pope's death to the Occupational Safety and Health Administration within 48 hours.

A violation of 29 CFR 1904.8, according to OSHA testimony, always results in a proposed penalty of $200 (Tr. 106). This is [*21] an arbitrarily determined figure which the Secretary seeks to impose as a penalty for all 29 CFR 1904.8 violations independent of the facts and circumstances of the individual case. Some credence must be given to the bona fides of Mr. Vath's belief that Pope was not his employee although we disagree with his view. Under the circumstances, assessment of a penalty in the sum of $100 appears more appropriate.

THE SERIOUS VIOLATION

It is alleged that Respondent violated three separate scaffolding safety regulations. The first charge is that an employee working from a suspended scaffold did not have a safety belt and lanyard on in a secured manner in violation of 29 CFR 1926.451(i)(8). This as a regulation listed under the heading of Two-Point Suspension (Swinging) Scaffolds.

The Citation also charges that two regulations listed under the Outrigger Scaffolds subheading were violated, namely 29 CFR 1926.451(g)(1) and (2). Specifically, it was alleged that "The outrigger scaffold did not have the fulcrum point secured against movement. The outrigger scaffold did not have the inboard side of the outriggers secured, which caused an employee to fall approximately 60 feet [*22] to his death."

It is evident from the pleadings -- and the testimony of the compliance officers -- that the Respondent was charged for violations relating to two different types of scaffolding for one and the same transaction. The scaffold in question, according to Nick Rajcevich, the Iowa safety technician who actually viewed it in operation on February 29, 1972, was "a two-point suspended scaffold, swing stage" (Tr. 53). It apparently was suspended from two outrigger or thrustout beams laid on the roof of the building rather than fastened to the parapet with roof irons or hooks. The present scaffolding regulations do not describe this arrangement specifically, a fact which was acknowledged in the testimony of Compliance Officer Levalds. When asked to state whether the scaffold in question was a suspension scaffold or an outrigger scaffold, he stated that it was a "combination" (Tr. 50).

That the scaffold from which Charles Pope fell to his death was not an outrigger scaffold within the meaning of 29 CFR 1926.451(g)(1) and (2) became evident from Levald's later testimony: "The outrigger scaffold that was specifically mentioned in the standards deals with the fixed [*23] platform that is the secured section. Now if you have a fixed platform and it is secured, obviously there is no need for a belt" (Tr. 50).

It is apparent that with respect to the allegations that Respondent has violated safety standards codified as 29 CFR 1926.451(g)(1) and (2), he has been improperly charged. This is an ironic situation, since the proof was tragically clear that beams from which the swinging scaffold was suspended were not properly secured. With no specific regulation applicable to the arrangement by which the scaffold was suspended, Complainant had alternate pleading avenues available which might have been better utilized. However, it is sufficient to state, for the purposes of this Decision, that the standards codified in 29 CFR 1926.451(g)(1) and (2) are inapplicable to the particular scaffolding arrangement which was in essence a two-point suspended scaffold.

The one charge in the Citation for serious violation which is appropriate relates to 29 CFR 1926.451(i)(8). It was established that an employee working from a suspended scaffold did not have a safety belt and lanyard on in a secured manner, and the Respondent is entitled to small credit for the fact [*24] that Charles Pope was even provided with a safety belt. When Rajcevich inspected the worksite on February 29, he noted five conditions relating to the two-point suspension scaffold which required correction. The final condition was that "each workman is to have approved safety life belt, secured to a lifeline" (Exhibit R-1). Elmer Vath not only gave Pope no instructions relative to use of the safety belt, but, as the following testimony revealed, acknowledged no responsibility for his safety:

Q. Did you feel you were responsible for the safety of Mr. Rodriquez and Mr. Pope?

A. No, I don't.

Q. You didn't? You didn't think you were responsible in any way for their safety?

A. I beg your pardon?

Q. You didn't feel you were responsible in any way for the safety of these two men?

A. Not if they didn't complain about anything.

Q. Not if they didn't complain about it?

A. They didn't ask for nothing they didn't get. (Tr. 134)

Respondent's dereliction cannot be excused on the theory that Elmer Vath was genuinely convinced that Charles Pope was not his employee. Under the doctrine announced in Hodgson v. Gilles and Cotting, Inc. general contractor has the responsibility for overall safety and accident prevention even though subcontractors are used. The instant case is closely analogous to Hodgson v. J.L. Manta, Inc., of Chicago In that case, a painter wearing a lifeline which he had failed to secure fell 200 feet to his death. The Respondent was ruled to be in violation of the Act despite its contention that it had issued safety belts and had instructed supervisors to remind the painters every day to wear the belts and to tie off their lifelines.

The finding that Respondent violated 29 CFR 1926.451(i)(8) despite the fact that he had supplied the deceased workman with a safety belt leaves one remaining issue for resolution, namely the appropriateness of the proposed $700 penalty. Oscar F. DiSilvestro, OSHA Acting Area Director, testified that he followed administrative guidelines in computing the proposed penalty, reducing a proposed $1,000 unadjusted penalty with a 20 percent credit for "history" and 10 percent credit for "size." The Respondent, however, was given no credit for "good faith." Cross-examination developed the fact that Mr. DiSilvestro was unaware [*26] that Respondent had even supplied a safety life belt to the deceased painter. He also was unaware of the fact that Respondent was disputing the allegation that Pope was his employee.

It would appear that Respondent is entitled to some credit for good faith, not because he took the position that he owed no duty to provide Pope with a safe work environment, but simply from that fact that he did supply a safety life belt when advised to do so by the State of Iowa. We would accord the Respondent a 10 percent "good faith" credit and therefore find a penalty of $600 is appropriate for the serious violation.

FINDINGS OF FACT

(1) The Respondent, Elmer Vath, is and has been engaged in the business of painting contractor in the Clinton, Iowa, area for 42 years; during the past year he has employed one employee on a regular basis.

(2) Pursuant to his painting contracting business, Respondent performed work in Iowa and Illinois, primarily on commercial buildings. In the operation of his business Respondent used materials and equipment produced or shipped in from states other than Iowa, and at times received payments in the form of checks which crossed state lines.

(3) Respondent was the [*27] painting contractor on a job which involved painting the Burpee Seed Co. Building, 615-625 North Second Street, Clinton, Iowa.

(4) On or before February 29, 1972, Respondent entered into an agreement with one Leon Rodriquez, an unemployed painter, with respect to painting the cornice on the front of the Burpee Seed Building. It was understood that the work could not be done by one man, and that Rodriquez would have someone help him paint the cornice. Respondent agreed to supply all paint and scaffolding material and pay $240 for the work.

(5) Rodriquez contacted his brother-in-law, Charles Pope, relative to the cornice work. It was agreed that Pope would work with Rodriquez and they would divide the $240 equally.

(6) Rodriquez and Pope began work at the Burpee Seed Building on February 29, 1972. Respondent and his son, Kenneth Vath, assisted Rodriquez and Pope in setting up the scaffold from which they painted the cornice.

(7) The scaffold was a two-point suspension scaffold (swing scaffold) supported by two steel beams which were laid on the roof of the building and extended over the face of the building. Each beam was secured by two sandbags laid on the inboard [*28] end of such beam.

(8) Nick Rajcevich, a State of Iowa safety inspector, visited the job site on February 29, 1972. He issued a report to Elmer Vath which admonished him to correct five unsafe conditions relating to a two-point suspension scaffold (swing scaffold). Among other cited items was a direction that each workman have a safety life belt secured to a lifeline.

(9) Respondent supplied a safety belt for Charles Pope as well as certain other equipment for the scaffold subsequent to receiving a copy of Rajcevich's report.

(10) Respondent did not admonish or instruct Charles Pope with respect to use of the safety belt.

(11) On March 6, 1972, one of the beams supporting the scaffold fell to the ground at which time Charles Pope fell from the scaffold to his death. Charles Pope did not have his safety belt on at the time of the accident.

(12) Respondent did not at any time report the accident which resulted in the death of Charles Pope to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor.

CONCLUSIONS OF LAW

(1) At all times material hereto, the Respondent was an employer engaged in business affecting [*29] commerce within the meaning of Section 3(5) of the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein.

(2) The Respondent, at all times material hereto, was the employer of Charles Pope within the meaning of the Occupational Safety and Health Act of 1970.

(3) The Respondent violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health standard set forth at 29 CFR 1904.8. Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, it is concluded that a civil penalty in the amount of $100 is appropriate.

(4) On March 6, 1972, the Respondent violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health standard set forth at 29 CFR 1926.451(i)(8). This violation was a serious violation within the meaning of Section 17(k) of the Act. Due consideration having been given to the provision of Section 17(j) of the Act as applicable to the evidence of record, it is concluded that a civil penalty of $600 is appropriate.

(5) The allegations in the Citation for serious violation [*30] that Respondent violated the Occupational Safety and Health standards set forth at 29 CFR 1926.451(g)(1) and (2) are not sustained by the evidence of record, said standards having no application to two-point suspension scaffolds.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is ordered that:

(1) Respondent's "Motion for a Directed Verdict" is hereby denied.

(2) Item 1 of a Citation for other than serious violation issued Respondent on March 28, 1972, and the penalty proposed thereon is hereby vacated.

(3) Item 2 of a Citation for other than serious violation issued Respondent on March 28, 1972, is hereby affirmed, and a penalty of $100 is assessed for said non-serious violation.

(4) The Citation for serious violation issued Respondent March 28, 1972, alleging violation of the safety regulation codified as 29 CFR 1926.451(i)(8) is hereby affirmed and a penalty of $600 is assessed for said serious violation.