December 8, 1975


BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE Commission:

On October 14, 1975, Commissioner Timothy F. Cleary issued a Direction for Review

granting the Petition for Discretionary Review filed by complainant, the Secretary of Labor.

On November 13, 1975, the Secretary wrote a letter to the Executive Secretary of the

Commission that we construe as a Motion to Vacate the Direction for Review and to Withdraw

Petition for Discretionary Review.

For the reasons stated in the Secretary’s letter of November 13, 1975, it is hereby

ORDERED that the Motion to Vacate the Direction for Review and Withdraw the Petition for

Discretionary Review is granted.


William S. McLaughlin

Executive Secretary

DATED: DEC 8, 1975

MORAN, Commissioner, Concurring:

The Commission has quite properly accepted the complainant’s concession that the

Judge’s decision finding insufficient evidence to support the alleged serious violation of 29


C.F.R. § 1926.451(c)(13) is correct. I concur with this disposition. However, since the foregoing

opinion does not state any of the matters covered by Judge Brenton’s decision, the same is

quoted in full text as follows:










September 11, 1975

J. Paul Brennan, Judge

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 that as the result of the inspection of a workplace under the

ownership, operation or control of the respondent, located at 2340 NW 50th, Oklahoma City,

Oklahoma, and described as follows: ‘Repairs on Church’, the respondent has violated section

5(a)(2) of 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 citation, which was issued on September 5, 1974, and reissued on September 23,

1974, and the citation, which was issued on September 5, 1974, allege respectively that a serious

and non-serious violation resulted from a failure to comply with standards promulgated by the

Secretary by publication in the Federal Register, and codified in 29 CFR 1926.

The description of the alleged violations contained on these citations state:


Item 1 ‘29 CFR 1926.451(d)(10) Guardrails, not less than 2 inches x 4 inches or

the equivalent and approximately 42 inches in height with a midrail of 1-inch x 4-

inch lumber or equivalent and toeboards, were not installed at open ends and sides

of scaffold located on the platform around the church steeple.’



Item 5 ‘29 CFR 1926.451(d)(10) Guardrails not less than 2 inches by 4 inches or

the equivalent and approximately 42 inches in height with a midrail of 1-inch by

6-inch lumber or equivalent and toeboards were not installed at open ends and

sides of the scaffold; i.e., scaffold at northeast corner of church.’

The standard promulgated by the Secretary provides as follows:


Items 1 & 5 ‘1926.451 Scaffolding.

(d) Tubular welded frame scaffolds.

(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material

providing equivalent protection), and approximately 42 inches high, with a

midrail of 1 x 6 inch lumber (or other material providing equivalent protection),

and toeboards, shall be installed at all open sides and ends on all scaffolds more

than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches

in height. Wire mash shall be installed in accordance with paragraph (a)(6) of this


Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the

respondent was notified by letters dated September 23, 1975, from J. T. Knorpp, Area Director

of the Tulss, Oklahoma, area, Occupational Safety and Health Administration, U. S. Department

of Labor proposed to assess penalties for the violations alleged in the amount of $555.00.

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 Oklahoma City, Oklahoma, on January

21, 1975.


1. On September 4 and 5, 1974, respondent was engaged, as a general building

contractor, in the repair of a church steeple in Oklahoma City, Oklahoma. In so doing it utilized

imported lumber and steel originating outside Oklahoma.

2. On September 4, 1974, respondent, at this work site, maintained a metal tubular

scaffold, 35 feet in height, from the ground to the roof, with a wooden platform installed on its


3. A material hoist had been erected adjacent to this scaffold, which was observed to be

used for lowering a container of bottles by one of respondent’s employees. This operation

required this employee’s presence on the top of the scaffold for less than five minutes at which

time the platform thereon had not been provided with guardrails. At another time two man were

observed on this platform by the compliance officer as he was driving away from the work site.


4. Another scaffold was in the process of erection on September 4 and 5, 1974, which

was about 50 feet from ground level and eventually would encircle the church steeple. During

this process one or more of respondent’s employees would probe and examine the steeple, to

ascertain the necessary repairs, from the platform atop this scaffold which was not provided with

a guardrail.

5. Respondent’s contract for this job was on a time and material basis for the work


6. Safety belts were provided and the foreman, a carpenter, his helper and two laborers

were instructed by management at the commencement of the job to wear the safety belts when

working about an unguarded position, and on September 4, 1974, Charles Blakely, the foreman,

was specifically instructed so to do.

7. On September 5, 1975, management found Blakely and one Ken Bunch working above

the platform without a safety belt at which time they were ordered down off the job, Blakely was

replaced on this job the next day and discharged 20 days later when another carpenter was found.

8. Glenn Kirkpatrick was the general superintendent on this job as well as on several

others then in progress. When he was not at this job site, Blakely was in charge. Emery Smiser,

president of respondent corporation, managed this job along with Kirkpatrick.

9. Kirkpatrick found Blakely and his helper wearing safety belts when working from the

unguarded platform at various times prior to inspection. On the 4th or 5th of September 1974, he

discovered Blakely on the upper level scaffold without being tied off with a safety belt at which

time he called him down and Blakely was given a reprimand by Kirkpatrick.

10. Emery Smiser had attended meetings, seminars, and courses of instruction on OSHA

regulations. Also he studied them and took a course in first aid.

11. During the walk around inspection on the 4th of September 1974, the compliance

officer saw two safety belts inside the church steeple.

12. The platform on the material hoist scaffold was not guarded at the time of inspection

on the 4th of September 1974, because respondent was of the opinion that taking off the large

pieces of plywood from the hoist would create more chances of injury upon reaching over a

guardrail than without.


13. After respondent’s examination of the steeple revealed the necessary work to be

performed, it completed the scaffold thereabouts together with guardrails which was described

by the compliance officer as the best he had ever seen.


What further precautions should respondent have taken, if any, to assure compliance with

its safety instructions.

Did respondent show that the required guardrail on the material hoist platform would

have presented a greater change of injury than without.

What amount of penalty, if any, should be assessed as appropriate upon a finding of a




The material hoist scaffold was erected and used primarily to bring materials to the

workplace. A platform was installed on top of it for assistance in receiving materials. It was not a

working platform for any other purpose. It was used infrequently. On September 4, 1974, no

guardrails had been installed at its open side and ends as required by 29 CFR 1926.451(d)(10).

Respondent contended that guarding it in the manner prescribed would present a greater

chance of injury than without any guarding. The argument was to the effect that reaching over a

42 inch high rail to bring in large plywood was a greater hazard than if no barrier was in the way.

This was simply Emery Smiser’s expert opinion. This opinion may have been well founded,

however, the evidence fails to disclose the hypothesis upon which it was based. This defense

must therefore be rejected and the citation for this non-serious violation at item five should be


The complainant proposed a penalty of $55.00 for this nonserious violation. It is clear

from the evidence that the duration of exposure here was almost non-existent. Although two men

were seen momentarily on this platform in addition to the one employee of respondent they were

not identified nor was there an explanation of the function they were performing, if any. The

probability of an injury occurring was according to the evidence exceedingly low. The evidence

also shows that respondent’s good faith was exceptional. Moreover, respondent had no previous

history of any violations of the Act. Therefore, the penalty proposed should be modified by

reducing it is the amount of $30.00.



At the time of the inspection there did [appear] a working platform on the scaffold at the

bottom of the church steeple which was properly guarded with railing and toe board. From this

point upward respondent was in the process of building the scaffolding. In so doing it erected

another level from which to complete its investigation of the steeple to ascertain the necessary

repairs. This platform created at this upper level was used as a means from which probing and

investigating at higher elevations could be accomplished on the steeple preliminary to finalizing

the scaffold’s height and design. Inasmuch as this upper level platform was not then guarded

respondent’s employees selected to perform this work were provided safety belts and given

explicit instructions to wear and use them for protection against injury in the event of a fall.

At this stage of the scaffold construction process it had not been determined whether this

platform would become a working platform. It is interesting to note that the compliance officer

upon his first visit learned this upper level platform had not been used as a scaffold platform or

walking surface for the performance of work on the steeple. On the following day he observed

men on the upper level scaffold by means of binoculars from his office several blocks away and

later upon visiting the site was told that respondent’s employees had been up there. At this time

he observed one employee tied off with safety belt and life line. Also at this time the

superintendent arrived with more scaffolding material and guard rails were in the process of

being installed on the upper level platform but not then completed. One workman was taking off

a corner of the steeple as described by the compliance officer. But the evidence also shows that a

sheet metal craft was also on the site and that the corners may well have been examined by a

workman of another employer. Also respondent’s men wore white hard hats and the man

observed at the alleged corner wore a red hard hat. It is therefore difficult to arrive at a clear cut

conclusion that respondent’s employees were doing anything other than examining the steeple

and proceeding with the construction of the scaffold and guard rails of the platform as

determined by investigation.

The crew employed by respondent at this job site consisted of two carpenters and two

laborers. One of the carpenters was selected as foreman because respondent believed from pest

experience that he was reliable and would follow instructions inasmuch as he had never been

known to disobey an order. But on the day of inspection he violated a specific instruction to use

a safety belt and tie off when probing above the upper level scaffolding. This was not observed


by the compliance officer but was immediately reported to him by respondent. Also this

employee was at that time reprimanded, demoted, and subsequently fired.

There is no dispute that the upper level scaffold was not completely guarded on

September 5, 1974, in accordance with the standard alleged. The conflict in the evidence has to

do with whether the scaffold was still in the process of erection together with whether respondent

knowingly permitted work performance on or above it without providing and demanding the use

of safety belts and lifelines.

Complainant argues that respondent know his man were violating the Act because he

saw, from long distance, three or four man upon the high level after which respondent’s foreman

said his man were up there; that four of respondent’s men spent some time wrecking columns,

and two employees were observed by the compliance officer in the presence of respondent’s

president on the upper level, one of which was without his safety belt. On the other hand there

were only two carpenters on this job and the credible evidence indicates conclusively that they

were the only employees required as being competent to investigate above the upper level. The

two laborers were elsewhere and in fact worked on the columns on the ground. Moreover, the

two man, one of which wore a safety belt were never identified. It is inferred that the one

wearing the equipment was respondent’s employee and the other was not. If he was he simply

was disobeying orders which the evidence shows was not foreseeable.

The preponderance of the evidence clearly shows that safety belts were available and

specifically ordered to be used when probing and investigating from and above the unguarded

scaffold. In fact the safety belts and life lines were maintained inside the church steeple to be

readily available when these two carpenters had occasion to go out [check] the scaffold.

This was an unusual and demanding job for the respondent. Its managers had the

foresight to engage expert help to assist in designing and engineering the scaffold to be erected

as it progressed from tier to tier of the steeple. Respondent learned there was just no way to

proceed without the use of safety belts and life lines until the scaffold was completed. And the

first time foreman was discovered by respondent’s superintendent violating the instructions he

was called down and reprimanded. He was specifically instructed and cautioned again that the

rule and policy was to wear belt and line on and above the upper level, in the presence of the

compliance officer, by respondent’s president one day prior to being again discovered violating

the rule which eventually resulted in his discharge.


The evidence also shows that respondent was an employer that strove in every way to

operate and maintain safe working condition. There is just no evidence upon which it may be

predicated that respondent should have anticipated or foreseen that its foreman would take

matters into his own hands and violate the rule and policy and permit his helper to do likewise.

Respondent, therefore, dis not, and could not have, know that this employee would not follow

the established and accepted procedure.

The scaffold at the level in question was not completed thus the only known protection

under the circumstances and facts of this case was personal protective equipment in the nature of

safety belts and life lines. This equipment was provided and ordered used. But the foreman of his

own violation, without the knowledge or consent, either expressly or by implication, of the

respondent choose to ignore the plain and unambiguous order of his employer.

The exposure to a fall in this case lies solely upon the employee in utter disregard

respondent’s careful plain and supervision.

Considering all the facts and circumstances here respondent exercised that degree of

reasonable supervision that the law expects or contemplates in like or similar situations.

Therefore, responding should not be accountable for the violation alleged. See Secretary v.

Norman R. Bratcher Co., 2 OSAHRC 725 (1973); Secretary v. Southern Special Products Corp.

3 OSAHRC 599 (1973); Secretary v. Clearwater Power Co. 7 OSAHRC 707 (1974); and

Secretary v. Standard Glass Co. 1 OSAHRC 595 (1972).


1. Respondent knowingly exposed one or more employees to a fall from the scaffold

supporting the material hoist which is violative of 29 CFR 1926.451(c)(13).

2. Respondent did not knowingly expose any employee to a fall from the upper level

scaffold for lack of guardrails when safety belts and life lines were provided and ordered to be

used at this level.

3. The Act does not require constant supervision of employees by management in the

quest to cause adherence to safety instructions.

4. Supervision and enforcement of safety rules which conforms with the attendant facts

and circumstances is sufficient.


Wherefore, it is Ordered that:


The citation for non-serious violation of 29 CFR 1926.451(c)(13) be and it hereby is,


The notification of proposed penalty for this non-serious violation be and it hereby is,

modified by reducing the $55.00 proposal in the amount of $30.00 so as to assess the sum of


The citation for serious violation of 29 CFR 1926.451(c)(13) and the notification of

proposed penalty to be assessed therefor in the amount of $500.00 be and each hereby is,


J. Paul Brennan, Judge