THE AUSTIN CO., INC.
OSHRC Docket No. 899
Occupational Safety and Health Review Commission
July 1, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision by Judge Alan M. Wienman. Judge Wienman concluded that Respondent committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ), by violating the safety standards at 29 C.F.R. 1926.451(i)(8) and 29 C.F.R. 1926.451(a)(4). He assessed a $550 penalty for the violation. Judge Wienman specifically rejected an allegation that, as part of the same serious violation, Respondent violated the standards at 29 C.F.R. 1926.451(g)(1) and (2). Finally, the Judge found that Respondent was in nonserious violation of the standards published at 29 C.F.R. 1926.450(b)(12). He assessed a $55 penalty for that violation.
We have reviewed the entire record n1 and find no prejudicial error in the Judge's decision.
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n1 We note that Respondent was given an opportunity to brief the issues on review. It elected not to do so.
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Accordingly, it is ORDERED that the Judge's disposition of this case is affirmed.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the finding that respondent was not in violation of the standards at 29 CFR § 1926.451(g)(1) and (2), because those specific standards are not applicable in this instance. The "outrigger scaffold" to which 29 CFR § 1926.451(g) applies is defined at 29 CFR § 1926.452(b)(23). That definition refers to supporting outriggers, "the inboard ends of which are secured inside of such building or structure." (Emphasis supplied). Consistent with that definition, 29 CFR § 1926.451(g)(2) provides for anchorage to floor joists or sills in contact with overhead beams. Here, the outrigger beams were not secured inside the building but rather on the roof. The outrigger scaffold as contemplated by the definition and 29 CFR § 1926.451(g) would seem to be most commonly encountered where construction work is still in an early stage. Also, the spacing and planking requirements of 29 CFR § 1926.451(g)(3) and (4) are consonant both with this reading and [*3] Judge Wienman's view that the provisions of paragraph (g) refer to a scaffold with a fixed platform.
I would, however, find failure to comply with the more general standard at 29 CFR § 1926.451(a)(2) n2 on these facts. The general requirements of 29 CFR § 1926.451(a) apply to all types of scaffolding. Therefore, that standard may be applied here.
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n2 The standard reads as follows:
§ 1926.451 Scaffolding
(a) General Requirements
* * *
(2) The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks shall not be used to support scaffolds or planks.
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The essential issue concerns the adequacy of outrigger anchorage. Respondent was afforded an opportunity to litigate this issue, and received sufficient notice as required by the Administrative Procedure Act. 5 U.S.C. § 554(b)(3). n3 The citation charged that "[t]he outrigger had three unsecured sandbags [*4] stacked on each member. The fulcrum point was not secured. . . ." Similarly, paragraph IV(a)(1) of the complaint and amended complaint read:
On April 20, 1972, the outrigger beams on an outrigger, two-point suspension scaffold in use on the east side of the building under construction by respondent at the aforesaid construction site were not securely braced at the fulcrum point, in violation of 29 CFR 1926.451(g)(1). In addition, the inboard ends of the outrigger beams were not securely anchored in that the only means of anchoring provided was three unsecured sandbags stacked on each member. . . .
In view of the singular importance of these outriggers to the safety of the workers on the scaffold, it would be inconsistent with the purposes of the Act not to apply 29 CFR § 1926.451(a)(2) where, as here, the issue was in fact tried. The evidence establishes that neither the fulcrum nor the inboard ends of the outrigger beams were securely anchored. Both beams were susceptible to horizontal displacement or tilting at both locations. The sandbags on the inboard ends did not provide a sufficiently stable counterweight. Indeed, respondent made no contentions to the contrary. [*5]
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n3 The requirement in section 9(a) of the Act that a citation "shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to have been violated" cannot be read in a vacuum. It is consonant with the notice provision of the Administrative Procedure Act, and the fundamental purpose of this requirement is to identify sufficiently for the employer the condition alleged to be in violation of the Act so that corrective action may be taken. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).
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There is nothing indicating that the finding of a violation for failure to comply with 29 C.F.R. § 1926.451(a)(2) would result in any prejudice to respondent. Cf. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Division, 490 F.2d 1105 (2d Cir. 1973).
In my view, respondent received adequate notice, participated in the trial of the facts underlying a failure to comply with 29 C.F.R. § 1926.451(a)(2), and would not be prejudiced [*6] by a finding of a violation of the Act for failure to comply with this standard.
[The Judge's decision referred to herein follows]
WIENMAN, JUDGE, OSAHRC: 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 against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citations allege on the basis of an inspection of a workplace under the ownership, operation or control of Respondent located at Pennsylvania & Pyrell Street, Des Moines, 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 May 2, 1972, alleged both serious and non-serious violations of the Act.
The Citation for serious violation sets 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(g)(1), and 1926.451(g)(2), [*7] page 7376, Column 2, and 29 CFR 1926.451(i)(8), page 7377, Column 1, and -- (East of building.) Two cement finishers were working from an outrigger, two point suspension scaffold. The outrigger had three unsecured sandbags stacked on each member. The fulcrum point was not secured and the men were not wearing safety belts with life lines. -- Immediately 29 CFR 1926.451(a)(4), page 7373, Column 1. -- (North of building.) A 12 foot high scaffold was not equipped with a guardrail. -- Immediately
The alleged serious violation in this citation was cited from the Federal Register, dated April 17, 1971, Volume 36, Number 75, Regulations for Construction.
The standards codified as 29 CFR 1926.451(g)(1) and 29 CFR 1926.451(g)(2) relate to outrigger scaffolds and provide, as herein pertinent, that outrigger beams shall be secured in place against movement and shall be securely braced at the fulcrum point against tipping. The inboard ends of outrigger beams shall be securely anchored, shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement.
The standard codified as 29 CFR 1926.451(i)(8) relates to [*8] two-point suspension swinging scaffolds and provides, as herein pertinent, that each employee on suspension scaffolds 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.
The standard codified as 29 CFR 1926.451(a)(4) provides, as herein pertinent, that guardrails and toeboards shall be installed on all open sides and ends of platforms more than six feet above the ground or floor.
The May 2, 1972, Citation for non-serious violation alleged that a violation resulted from a failure to comply with the standard codified as 29 CFR 1926.450(b)(12). The description of the alleged violation contained on said Citation states:
(North side of annex near upper roof) An eight-foot job made ladder had 16-inch cleat spacings, top-to-top, and the cleats were not recessed, nor were filler blocks used between the cleats.
The standard codified as 29 CFR 1926.450(b)(12) relates to job made ladders and provides, as herein pertinent, that cleats shall be inset into the edges of the siderails [*9] one-half inch, or filler blocks shall be used in the rails between the cleats. Cleats shall be uniformly spaced, 12 inches top-to-top.
Pursuant to enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated May 2, 1972, from Oscar F. DiSilvestro, Acting Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the alleged serious violation in the amount of $550 and a penalty of $55 for the alleged non-serious violation.
After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Des Moines, Iowa, on December 7, 1972.
THE ISSUES
No jurisdictional questions are in issue, the parties having stipulated facts sufficient to establish that the Respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter. The sole issues for resolution, therefore, are whether the Respondent violated the safety standards as alleged in the Citations, and, if so, what penalty or penalties are appropriate.
SUMMARY OF THE EVIDENCE AND DISCUSSION [*10]
The Serious Violations
At the hearing Respondent made little effort to dispute the allegations that scaffolding safety regulations had been violated but concentrated its defense on the question of whether the violations were "serious" within the meaning of the Act, i.e., whether there was a substantial probability that death or serious physical harm could result to its employees from the conditions described in the Citation.
The evidence pertinent to this issue will be summarized in detail, but first some observations relative to the charges in the Citation are in order. The Respondent was alleged to have violated safety regulations in the use of two scaffolds on the inspection date. On one scaffold described as "an outrigger, two-point suspension scaffold" two cement finishers were working without safety belts or lifelines according to the Citation. This was alleged to have been in violation of 29 CFR 1926.451(i)(8), a regulation codified under the subheading (Swinging Scaffolds) Two-Point Suspension. In addition, it was stated that "The outrigger had three unsecured sandbags stacked on each member. The fulcrum point was not secured . . . "These conditions were alleged as [*11] violations of 29 CFR 1926.451(g)(1) and (2), regulations codified under the subheading Outrigger Scaffolds.
The proof, in the form of testimony from OSHA Compliance Officer Uldis Sid Levalds who took photographs of the scaffold in question, established that the conditions described in the Citation existed at the worksite. But a pleading problem evident on the face of the Citation was not resolved by Levalds' testimony. Levalds acknowledged that the safety regulations relative to scaffolding have no category of subheading entitled "outrigger, two-point suspension scaffold" (T. 26). He also stated that the outrigger scaffold described in the standards is a specific outrigger scaffold with a fixed platform (emphasis supplied). The scaffold in question herein did not have a fixed platform, but was, in substance, a two-point suspension swinging scaffold attached to two outriggers.
It follows that safety regulations 29 CFR 1926.451(g)(1) and (2) are inapplicable to the instant fact situation. However dangerous were the means employed to secure Respondent's swinging scaffold, they do not constitute violations of 1926.451(g)(1) and (2) which regulations prescribe safety [*12] requirements for outrigger scaffolds with fixed platforms only.
A violation of 29 CFR 1926.451(1)(8) was more properly alleged since this section is applicable to swinging suspension scaffolds. Mr. Levalds testified that he observed two men working on the scaffold sans safety belts or lifelines. This condition was portrayed in the photographic Exhibit, G-4, and the facts are not disputed.
A second scaffold, portrayed in photographic Exhibit, G-5, was not equipped with a guardrail. This was alleged to have been a violation of 29 CFR 1926.451(a)(4), a regulation which requires guardrails on scaffold platforms more than six feet above the ground or floor. No pleading problem existed in this area. Complainant's testimony that the scaffold was 12 feet high (T. 19) was unrebutted, and the defense was confined to the question of the probability of serious injury in the event of a fall from a 12 foot height.
Complainant's position was presented by Mr. Levalds and Oscar F. DiSilvestro, OSHA Acting Area Director, who made the determination to issue a Citation for serious violation. Mr. Levalds testified that the 12 foot high scaffold was being used in connection with the [*13] filling of a concrete form by means of a cherry picker crane, i.e., a crane with a rotating boom superstructure approximately in the middle of the chassis (T. 19, 20). There were several hazards in Mr. Levalds' opinion. The bucket with its load of concrete could push a man from the platform; a concrete vibrator with an attached cord on the scaffold presented a tripping hazard, as did uneven planks or any concrete spilled on the platform (T. 20, 21).
Mr. DiSilvestro stated that in his opinion a fall of six feet could result in serious harm ("he could injure his back, it could cause a concussion of his head") (T. 43). He stated that his opinion was based on experience and personal knowledge (T. 45).
He also believed that the probability of a fall from the 12-foot high scaffold was quite high. He pointed out that the weight of the bucket could pressure a man off the platform without striking him forcibly unless he had some safeguards to which he could cling. The severity of such a fall, he stated, could be quite high (T. 48).
Respondent's witnesses, William H. Small, the Project Superintendent and Don Thorpe, District Construction Superintendent, both testified that they had knowledge [*14] of falls from heights which did not result in serious injuries. However, on cross examiniation Mr. Small admitted he was testifying about a single instance -- a fall of about five feet which resulted in a fracture of a small bone in a man's foot (T. 61). Mr. Thorpe testified that he knew of two instances where men had fallen from heights of 20 feet and had returned to work a few days later (T. 62).
The undersigned Judge is persuaded that a preponderance of the credible evidence supports a finding that the violation of 29 CFR 1926.451(a)(4) in the instant case was a serious violation within the meaning of Section 17(v) of the Act. The hazard of a fall from the 12-foot-high scaffold was sufficiently great to equate with "substantial probability" as employed in Section 17(k), and a fall from such a height is quite likely to result in serious physical injury despite testimony of isolated instances where there was little harm after such an occurrence.
In view of the above finding it is unnecessary to consider the question of whether the violation of 29 CFR 1926.451(i)(8) at a lesser height was also a serious violation, both charges having been incorporated in the same Citation [*15] item.
Mr. DiSilvestro also testified that the relevant statutory factors -- the size of the business of the employer, the gravity of the violation, the employer's good faith and the absence of any history of previous violations -- were considered in computation of the proposed penalty of $550 for the serious violation (T. 33-36). A review of the relevant factors persuades us that a penalty of $550 is appropriate under the circumstances.
The Non-Serious Violation
The testimony of Compliance Officer Levalds relative to a job made wooden ladder connecting two roof areas was undisputed. The ladder, approximately eight feet in length, was constructed of two by fours. The cleats were spaced on 16-inch centers. They were not recessed into the siderails, and filler blocks were not used between the cleats (T. 22). A photograph of the ladder was introduced in evidence as Exhibit G-6.
Witnesses for Respondent did not contend that the ladder in question conformed to the applicable regulations, but pointed out that they had not instructed any employees to construct a job made ladder and had destroyed the ladder in question promptly after inspection (T. 59, 63).
Mr. DiSilvestro [*16] testified that a number of minor injuries -- "skins, sprained ankles and sprained wrists" -- occur due to malfunctions of job made ladders (T. 51). In his opinion the likelihood of injury "could be quite moderate" (T. 50).
It appears that sufficient gravity attends the violation of 29 CFR 1926.450(b)(12) that a monetary penalty should be assessed. We would therefore affirm the proposed penalty of $55 after consideration of the statutory reduction factors.
FINDINGS OF Fact
(1) The Respondent, the Austin Co., a corporation with its principal office at 3650 Mayfield Road, Cleveland, Ohio, is and was at all times material hereto engaged in the business of construction contractor at various sites in the state of Iowa and elsewhere. The Respondent regularly receives in commerce goods, materials and supplies which have originated outside the state of Iowa, and its employees regularly handle and work on goods that have been shipped or received in commerce.
(2) On April 20, 1972, Respondent was engaged in construction of an addition to a hospital at Pennsylvania and Pyrell Street, Des Moines, Iowa. On said date authorized representatives of the Secretary of Labor inspected [*17] the worksite accompanied by a representative of the Respondent. As a result of said inspection, the Secretary issued to Respondent one Citation for serious violation and one Citation for other than serious violation pursuant to Section 9(a) of the Act.
(3) The evidence with respect to the alleged serious violation of safety standards revealed that on the date of the inspection at Respondent's job site at Pennsylvania and Pyrell Street, Des Moines, Iowa, two employees were working from a suspension scaffold at a height of six feet without safety belts or lifelines and two other employees were working on a 12 foot high scaffold which was not equipped with a guardrail.
(4) The evidence with respect to the alleged nonserious violation of safety standards at the aforesaid worksite on April 20, 1972, revealed that an eight foot job made ladder was in use to provide access to a roof level. The ladder had 16 inch cleat spacings, top to top, the cleats were not recessed, and filler blocks were not used between the cleats.
CONCLUSIONS OF LAW
(1) At all times material hereto, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the [*18] Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein.
(2) On April 20, 1972, the Respondent violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standards set forth at 29 CFR 1926.451(i)(8) and 29 CFR 1926.451(a)(4). The violation of the aforesaid standards constituted 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 $550 is appropriate.
(3) On April 20, 1972, the Respondent also violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standards set forth at 29 CFR 1926.450(b)(12). 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 $55 is appropriate.
(4) Those allegations in the Citation for serious violation that Respondent violated the Occupational Safety and Health Standards set forth at 29 CFR 1926.451(g)(1) and [*19] (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) The Citation for serious violation issued Respondent on May 2, 1972, is hereby modified by vacating the allegations that Respondent violated the safety standards codified as 29 CFR 1926.451(g)(1) and 1926.451(g)(2). The remainder of said Citation allegations, charging violation of standards codified as 29 CFR 1926.451(i)(8) and 29 CFR 1926.451(a)(4) are hereby affirmed, and a penalty of $550 is assessed for said serious violations.
(2) The Citation for other than serious violation issued Respondent on May 2, 1972, is hereby affirmed, and a penalty of $55 is assessed for said non-serious violation.