UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11752
GENERAL SUPPLY COMPANY, INC.,
Respondent.

January 25, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

A decision of Administrative Law Judge William J. Risteau is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter ‘the Act’). Judge Risteau affirmed Complainant’s (Labor) citation, as amended, which alleges that Respondent (General) violated the Act by failing to comply with the standard published at 29 C.F.R. § 1926.451(a)(4)[1] in that it did not provide guardrails on open sides and ends of a scaffold more than four but less than ten feet high.[2] We reverse and vacate for the reason that the cited standard is not applicable to the type of scaffold used by General.

General is a contractor for the installation of acoustical building material and for steel fabrication. At the time of Labor’s inspection it was installing an acoustic ceiling in a store which was being rebuilt following a fire. It used a Baker mobile scaffold mounted on casters for this purpose.

The height at which the ceiling was to be installed was measured by means of a laser. In order to check whether the laser was level General’s superintendent stepped onto a 2 by 10-inch or 2 by 12-inch board which had been placed on top of guardrails located at the ends of the scaffold such that the board extended along the length of the scaffold. The scaffold platform itself was about six feet above the floor and the guardrails and board which they supported were approximately three feet higher such that the board was nine feet above the floor. The board was not equipped with guardrails, but there was a ceiling joist at a height of about 12 feet above the floor. The superintendent held onto this joist while checking the laser.

General argues that the cited standard does not apply to the scaffolding it used. Specifically, General says that the cited standard by its terms imposes guardrail requirements for scaffolds in general but its scaffold is of a particular type which is governed by § 1926.451(e). This standard is entitled ‘Manually propelled mobile scaffolds.’[3] Subparagraph (10) of § 1926.451(e) provides that ‘[g]uardrails . . . and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor . . ..’ This provision does not specify a guardrail requirement for manually propelled mobile scaffolds having heights of less than 10 feet. Therefore in General’s view the citation must be vacated and the complaint dismissed because its scaffold does not fail to comply with the applicable standard.

Labor agrees that in the circumstances General’s scaffold is not required to have a guardrail under the provisions of § 1926.451(e)(10). However, Labor contends that the requirements of this standard are in addition to those of the cited general standard. Labor therefore would have us affirm the citation on the basis that the scaffold did not comply with that portion of § 1926.451(a)(4) requiring guardrails on scaffold platforms which are between four and ten feet in height.

We resolved an analogous question of applicability arising under Labor’s standards governing excavations and trenches in Lloyd C. Lockrem, No. 4553, BNA 3 OSHC 2045, CCH OSHD para. 20,444 (OSHRC, Feb. 24, 1976). We noted that pursuant to Labor’s definitions the term ‘excavation’ is the broader term and as such includes a ‘trench’ as a specific type of excavation. Speaking through Commissioner Cleary, we said:

Where a particular type of hazard is addressed by a standard applying to the broad class of ‘excavations’ and no corollary standard addressing such hazard specifically applies to ‘trenches,’ the protective provisions of the former will be extended to the latter. . . .

The particular hazard that § 1926.651(s) is designed to eliminate is that of mobile equipment falling into excavations and causing injury not only to workers in and around the excavation, but also to the operators of such equipment. There is no corollary standard specifically applicable to trenches although it is patently clear that the same dangers exist. We therefore hold that § 1926.651(s) is entirely applicable to those excavations otherwise classified as ‘trenches.’[4]

The hazard in this case is one of falling from a scaffold. As in Lockrem there is a general provision designed to protect against the hazard; it is the provision Labor cited. But unlike Lockrem there is a corollary standard which addresses the same hazard and is specific to the type of scaffold General used. In these circumstances it is of no significance that the general standard may, as Labor argues, require fall protection on scaffolds at a lesser height than that to which the specific standard applies. The height provision of § 1926.451(e)(10) reflects the judgment of its drafters as to the kind of fall protection appropriate for a manually propelled mobile scaffold. General therefore is entitled to rely on the provisions of the standard which is specific on its face apart from and independent of any general provision which may also speak to the same hazard.[5] Compare Irvington Moore, 16 OSAHRC 608 09, BNA 3 OSHC 1018, 1019, CCH OSHD para. 19,523 at 23,294 (1975), petition for review docketed, No. 75 2159 (9th Cir., May 27, 1975), with Diebold, Inc., Nos. 6767, 7721, and 9496, BNA 3 OSHC 1897, 1901, CCH OSHD para. 20,333 at 24,251 (OSHRC, Jan. 22, 1976), petition for review docketed, No. 76 1278 (6th Cir., Mar. 8, 1976).

In this regard we note that the provisions of section 1926.451 specify particular guardrail requirements for twelve other specific kinds of scaffolds. Without exception, all of these specific requirements explicitly require guardrails only at heights in excess of 10 feet. Prior to November 29, 1972, these paragraphs uniformly required guardrails and toeboards at heights of over six feet, and the general standard, paragraph (a), required guardrails at heights between four and six feet. On that date, Labor amended the standards to their present form. The stated purpose of the amendment was ‘to bring about a greater uniformity between the Construction Safety Standards [part 1926] and the general industry standards contained in 29 CFR Part 1910.’[6]

The pertinent general industry standards, 29 C.F.R. §§ 1910.28 and 1910.29, did then and now include specific provisions regulating guardrail and toeboard protection on named kinds of scaffolds. The former also includes a general provision. None of the specific provisions require guardrails or toeboards at heights less than 10 feet. The general industry standards were themselves adopted respectively from the American National Standards Institute (ANSI) standards A10.8 1969, Safety Requirements for Scaffolding, and A92.1 1971, Standard for Manually Propelled Mobile Ladder Stands and Scaffolds (Towers).[7] The former is comprised of provisions addressed specifically to particular types of scaffolds, and it includes a general provision. The latter ‘is intended to prescribe rules and requirements for the design, construction, and use of mobile work platforms . . . and rolling (mobile) scaffolds (towers). . . .’[8]

We therefore conclude that by its amendment of the construction safety standards at issue in this case Labor confirmed its intention that particular types of scaffolds would be subject to specific standards. Had Labor desired the result for which it argues in this case, it could have so provided. Instead, it purposely brought the construction safety standards pertaining to scaffolding into conformity with industry consensus standards (the ANSI standards) by which the affected industries have plainly determined to designate separately the requirements appropriate for each individual type of scaffold.

For the reasons given above we conclude that in the circumstances the cited general scaffold standard is inapplicable to General’s scaffold. The facts are, and there is no dispute, that General has not failed to comply with the applicable standard. Accordingly, we reverse the Judge’s decision and vacate the citation.

So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

BY: Gloria W. White, Acting Executive Secretary

DATE: JAN 25, 1977

MORAN, Commissioner, Concurring:

I agree with the vacation of the citation because the cited standard does not apply to respondent’s scaffold and respondent did not violate the applicable standard. However, since I dissented in Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553, February 24, 1976, it is unnecessary for me to join in my colleague’s discussion which distinguishes the majority decision in Lockrem from the instant case, and I do not do so.

CLEARY, Commissioner, DISSENTING:

In my opinion the majority errs in applying the law to the facts. An employer is entitled to rely upon the provisions of a specific standard when a general standard also addresses the same hazard. This is the rule of construction published in 29 CFR § 1910.5(c)(1). But that is not this case.

The specific provision relied upon by the majority, section 1926.451(e), prescribes safety conditions for ‘manually propelled mobile scaffolds’ that are more than 10 feet above the ground or floor. That provision prescribes no safety conditions for mobile scaffolds that are less than 10 feet above the ground or floor. In this case, the only protection from the hazard of falling from the six-foot scaffold was to have the employee hang onto the ceiling joist. The provision therefore is not an ‘occupational safety and health standard’ for the smaller mobile scaffolds because it does not prescribe a safety requirement. See section 3 (8) of the Act. Because of the absence of a specific requirement, the general requirement of section 1926.451(a)(4), second sentence, applies. See Melody Home & Insulation Co, BNA 4 OSHC 1852, 1976 77 OSHD para. 21,290 (No. 6908, 1976).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11752
GENERAL SUPPLY COMPANY, INC.,
Respondent.

July 8, 1975

DECISION AND ORDER

APPEARANCES:

Jane Matheson, Esq., of Dallas, Texas, for the Secretary of Labor

H. Peter Herff, II, Esq., of San Antonio, Texas, for the Respondent

Risteau, Judge:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), in which the respondent contests a citation issued by the complainant pursuant to section 9(a) of the Act. The citation, which was issued on January 3, 1975, alleges that as the result of an inspection on December 31, 1974, of a workplace under the ownership, operation or control of the respondent, located at 803 S. W. Military Dr., San Antonio, Texas, and described as: ‘Acoustic ceiling,’ respondent violated section 5(a)(2) of the Act in the following manner:

NONSERIOUS VIOLATION

Item No.

Standard

Description of Alleged Violation

29 CFR 1926.451(a)(4)

Failure to provide standard guardrails and toeboards on all open sides and ends of platforms more than ten (10) feet in height on the following equipment:

a. One employee working on a scaffold 12 feet above floor level on the northeast end of the building.

The cited standard provides:

1926.451(a)(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats . . .. Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letter dated January 3, 1975 from Herbert M. Kurtz, Director of Area 6090, Occupational Safety and Health Administration (OSHA), United States Department of Labor, proposing the following penalty for the alleged violations:

NONSERIOUS VIOLATION: Item No. 1 $30

After the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at San Antonio, Texas, on March 28, 1975.

DISCUSSION

At the hearing and prior to the taking of testimony, complainant moved to amend the ‘Description of Alleged Violation’ in the citation to charge that respondent had failed to provide standard guard rails on all open sides and ends of a scaffold platform which was more than four feet but less than ten feet above ground (Tr. 4). Respondent objected strenuously to this motion, upon which runing was reserved.

The leading case on amendment of pleadings in proceedings under the Act is National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257, 1264 (D.C. Cir. 1973) where the Court said:

. . . any ambiguities surrounding the Secretary’s allegations could have been cured at the hearing itself. So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here; for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.

As this holding indicates, a pleading need only give fair notice of the issues in order to be adequate, and it is the opinion of the undersigned that such notice was given in the present case.

In the first place, when the unamended citation is considered as a whole, including the cited regulation, it is apparent that reference to the exact height of the platform is surplusage. The gist of the alleged violation, as described in the regulation, is the failure of a platform to conform to safety requirements if it exceeds certain minimum heights.1 Litigation of these issues requires the presentation of evidence as to the height of the platform and scaffold under consideration. Far from being deceived by the citation as to the need for evidence on this point, respondent came to the hearing fully prepared to show the height with as much exactitude as possible (Ex. R 1–R 6).

Under these circumstances, it is simply not enough for respondent to claim surprise because its ‘whole defense rests on a fact question as to the allegations in the Complainant’s complaint of twelve feet’ (Tr. 10). It must show further that it was unable to defend because it was unaware that the height of the scaffold would be in issue. As pointed out above, this is clearly not the case, and complainant’s motion to amend is therefore granted.

With respect to the facts, there is little real dispute. On December 31, 1974 respondent’s employees were engaged in the installation of an acoustic ceiling at the workplace. In the course of the work it became necessary to check readings on a laser device used to measure ceiling height. The device was well above ground level and it was necessary to use a platform to reach it. The platform chosen was that illustrated in Exhibits C 1 and R 1 through R 6. As shown in those Exhibits, the scaffold used was a standard one used in the construction industry; it had a platform at the six foot level and was equipped with guardrails along the sides and ends approximately three feet above this platform. A 2‘ x 12‘ plank had been placed across the end rails and it was on this plank that an employee stood to check the laser. There were no guardrails around the plank, which was, without question, more than 4 feet above ground. The employee who examined the laser and who is shown in Exhibit C 1 was in that position for approximately two minutes (Tr. 95).

On these facts, it must be held that respondent was in violation of the cited regulation. The exposure to falling hazard was limited, however, and the violation was of low gravity. Considering these circumstances, the relatively low proposed penalty of $30 is appropriate.

FINDINGS OF FACT

1. On December 31, 1974, employees of respondent were at work in a building located at 803 S.W. Military Drive, San Antonio, Texas.

2. In the course of this work, one employee stood on a work platform consisting of a board approximately 2 inches thick by 12 inches wide which was positioned more than 4 feet above ground level; standard railings were not installed at the sides and ends of this board.

3. The employee referred to in Finding 2 above was engaged in the observation of a laser device used in establishing the height of a ceiling preparatory to the installation of acoustic tile. Observations made by the employee while on the platform required about two minutes to perform.

4. The laser device referred to above was manufactured in the State of California (Tr. 24).

CONCLUSIONS OF LAW

1. Respondent is an ‘employer’ engaged in ‘commerce’ as those terms are defined in sections 3(3) and 3 (5) of the Act.

2. This Commission has jurisdiction over the parties and issues raised by the citation.

3. On December 31, 1974, respondent was in violation of Section 1926.451(a)(4) of Title 29, Code of Federal Regulations, a regulation promulgated by the Secretary pursuant to Section 6 of the Act.

4. The violation referred to in Conclusion No. 3 above constituted a nonserious violation of Section 5(a)(2) of the Act; a penalty of $30 should be assessed for such violation.

ORDER

On the basis of the above Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that the citation issued on January 3, 1975 be affirmed and that a penalty of $30 be assessed.

WILLIAM J. RISTEAU

ADMINISTRATIVE LAW JUDGE

July 8, 1975

[1] This standard in pertinent part requires that

[g]uardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . . Scaffolds 4 to 10 feet in height . . . shall have standard guardrails installed on all open sides and ends of the platform.

[2] The citation originally alleged that General failed to provide guardrails and toeboards on open sides and ends of a platform on a scaffold 12 feet above floor level. Labor moved to amend at the outset of the hearing, and General objected. The Judge granted the motion. General excepts to his ruling and argues before us among other things that in the circumstances the motion is untimely. General says it has been denied fair notice of the charge against it since the amendment changes the basis for the charge.

In view of our disposition it is not necessary to consider whether the Judge erred by granting the motion to amend, nor need we consider other defenses which General raises in addition to the question whether the cited standard applies to General’s scaffold.

[3] § 1926.452(b)(17) defines a ‘manually propelled mobile scaffold’ as ‘[a] portable rolling scaffold supported by casters.’

[4] BNA 3 OSHC at 2047, CCH OSHD para. 20,444 at 24,411 12.

[5] Labor itself agrees with this principle for in its regulations it states ‘[i]f a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .’ 29 C.F.R. 1910.5(c)(1).

[8] ANSI Standard A92.1 1971, section 1.1; 29 C.F.R. § 1910.29(a)(1).