1 of 138 DOCUMENTS

BRISTOL-MYERS COMPANY


BOONVILLE DIVISION OF ETHAN ALLEN, INC.


OWENS-ILLINOIS, INC.


CONTINENTAL GRAIN COMPANY


WALLING CRATE COMPANY


MATERIAL FABRICATION CORPORATION


BURKART-RANDALL COMPANY


KAISER ALUMINUM & CHEMICAL CORP.


BETHLEHEM STEEL CORPORATION, (BUFFALO TANK DIVISION)


WESTERN WATERPROOFING CO., INC.

OSHRC Docket No. 9225

Occupational Safety and Health Review Commission

November 29, 1978

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission upon remand from the Court of Appeals for the Eighth Circuit. Western Waterproofing Co., Inc. v. Marshall, No. 77-1324 (8th Cir. May 9, 1978). In our previous opinion, n1 we found that respondent willfully violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 n2 by failing to comply with the scaffolding standards at 29 CFR 1926.451(i)(8), 1926.451(i)(9) and 1926.451(i)(11), n3 and assessed a $9,000 penalty.

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n1 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977).

n2 29 U.S.C. 651 et seq., hereinafter "the Act."

n3 The citation alleged a failure to comply with 29 CFR 1926.451(a)(4). On review, the Commission found that 1926.451(i)(11) was more specifically applicable and amended the citation to allege noncompliance with 1926.451(i)(11).

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On appeal, the court affirmed the Commission's decision insofar as it found that respondent willfully failed to comply with 1926.451(i)(8) and 1926.451(i)(9). The court held, however, that the Commission erred in amending the citation to allege a failure to comply with 1926.451(i)(11) rather than 1926.451(a)(4). Nevertheless, the court concluded that a willful failure to comply with 1926.451(a)(4), as originally alleged, had been established. The court remanded the case to the Commission for the assessment of an appropriate penalty.

In our previous opinion, we considered the penalty assessment criteria specified in section 17(j) of the Act n4 giving particular emphasis to the judge's finding that respondent acted in bad faith and to the high gravity of the violation. We originally assessed a penalty of $9,000. We note, however, that the court's finding that respondent failed to comply with 1926.451(a)(4) is based on the absence of toeboards only, whereas the Commission's finding of noncompliance with 1926.451(i)(11) was based on the absence of toeboards and midrails. Nevertheless, we conclude [*3] that the gravity of the violation affirmed by the court is only slightly lower than that of the violation previously found by the Commission.

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n4 Section 17(j) of the Act reads:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Several of respondent's employees were working 17 to 47 feet above ground level on the noncomplying scaffolds. Considering the failure to use safety belts tied-off to lifelines and the failure to lash the scaffolds to the building in conjunction with the lack of front guardrails, n5 there existed a high probability that an employee could fall from the front side of the scaffold. Moreover, these violations also produced a high probability that the employees on the scaffolds would fall in the event of a scaffold collapse. [*4] n6 For these reasons, the gravity of the violation is very high.

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n5 Although the Commission members were divided on the question of whether the absence of guardrails on the front sides violated 1926.451(a)(4), and neither the Commission nor the court based their finding of a violation on this condition, the absence of such guardrails appropriately can be considered in determining the gravity of the violation found.

n6 Pursuant to 1926.451(i)(8), employees working on two-point suspension scaffolds must wear safety belts attached to lifelines that, in turn, are attached to substantial members of the structure or to independently rigged lines. In this manner, in the event of a scaffold collapse, employees still receive protection against falling.

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The midrail violation that the court vacated involved the absence of midrails on the back sides of the scaffolds. These sides were equipped with toprails, however, so some fall protection did exist in spite of the failure to use safety belts. Thus, while midrails would [*5] have reduced the fall hazard, as explained above the most significant part of the hazard would have remained even if the back sides had been equipped with midrails.

For these reasons, we conclude that the penalty previously assessed should be reduced, but only by a small percentage. We find that a penalty of $8,000 is appropriate.

Accordingly, it is Ordered that an $8,000 penalty is assessed for respondent's willful failure to comply with 29 CFR 1926.451(i)(8), 1926.451(i)(9) and 1926.451(a)(4).