UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

May 25, 1977

DECISION

Before BARNAKO, Chairman; and CLEARY, Commissioner.

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge’s decision in the absence of compelling public interest. Abbott—Sommer, Inc., 3 BNA OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DATED: May 25, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 8, 1976

DECISION AND ORDER

APPEARANCES

Ken S. Welsh, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

John H. Ford, President, Metro Building Services, Inc., Clearwater, Florida, on behalf of respondent

Cutler, Judge

This is a proceeding pursuant to 29 U.S.C. 659, of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq, hereinafter called the Act) stemming from one citation issued by complainant under authority provided by section 658 thereof.

A citation with proposed penalty was issued respondent on January 14, 1976, following an inspection of its jobsite in Tampa, Florida, on January 12, 1976. A hearing was held on September 2, 1976, in Tampa, Florida, with the respondent appearing pro se.

The respondent is charged with a violation of 29 C.F.R. 1926.451(l)(1) and (l) (4)1 by failing to assure that a boatswain’s chair seat was reinforced on the underside to prevent board from splitting and by failing to assure the employee was protected by a safety belt and lifeline while working in a boatswain’s chair suspended from the roof of a 10-story building, exposing employees to the hazard of falling more than 100 feet.

I

The citation was alleged as serious and the penalty proposed was $700.00 with abatement to be immediately upon receipt of citation.

There is no issue concerning jurisdiction, the respondent admitting it is an employer engaged in a business affecting commerce within the meaning of the Act (Tr. 5).

II

Respondent is a commercial exterior building and window cleaning firm which was engaged on January 12, 1976, in cleaning windows of a 10-story 100-foot high building under construction in Tampa, Florida. Mr. Bruce Hardin, a compliance officer for complainant, inspected the site at about 3:30 p.m. on that date. According to Mr. Hardin, he observed an employee of respondent cleaning windows on the west side of the building. The employee; later identified as Dan Carloc, was suspended 55 feet high in a boatswain’s chair which was attached by means of a sling to a suspended rope from the parapet of the building. There was no lifeline or safety belt attached to Mr. Carloc (Ex. 1). He later examined the boatswain’s chair and described it as wooden, rectangular, ‘approximately 12 by 24 inches in width, and thickness approximately better than one inch.’ It was strung on the underside with steel cable weaved through four holes in the corners but was not cleated on the underside through the width of the chair (see Exs. 2 & 3).

Respondent does not contest the above facts essentially as described by the compliance officer. However, it is contended that the wire cables crossing underneath the seat of the chair would prevent a fall if the seat split. To this end, testimony was given by Mr. Harry Volz, branch manager of a national building maintenance firm whose vocational experience included work as a window washer for about 27 years. Upon examination of a boatswain’s chair similar to the one involved in the citation (Ex. B) he opined that he would feel very secure working in the chair. Respondent also presented the testimony of Mr. Robert McLemore, one of its employees who has had 21 years experience as a highrise window washer. In his opinion, the boatswain’s chair used by respondent was safe. If the board broke, the cable under the seat would prevent an individual from falling.

Concerning the use of lifelines (also called safety lines) and safety belts by Metro, the testimony of Mr. McLemore points up the method usually followed. The boatswain’s chair operator initially wears a safety belt fastened to a safety line hooked to a solid object on the roof. After getting into the chair the safety line is disconnected and the belt fastened to the lower block suspending the boatswain’s chair. A safety line is not used during work operations because the employee would have to stop about every three or four feet in order to readjust. He has never sustained a fall, however, he admitted that, if the rigging fell, a lifeline would save his life.

According to Mr. John H. Ford, president of Metro, an employee would have to use his hands three or four hundred percent more if he had to manipulate a safety line and increase danger. If a safety line were required it would at least double the price of his operations. He personally did not know of any instances when rigging have fallen, although he read about some in the newspaper occurring up north.

Mr. Volz testified that use of a safety line ‘has its pros and cons.’ Because an individual has to use his hands more extensively with a safety line on a boatswain’s chair rig, a hazard could he created. On the other hand, if the rig breaks and there is no safety line, an individual would be seriously hurt or killed.

III

Turning first to the boatswain’s chair violation, there is no question but that the chair was not reinforced on the underside by cleats as specified by section 1926.451(l)(1). However, the evidence establishes that the construction of the chair is such that if the seat broke or split, the crossed cable underneath would prevent the occupant from falling. Under the circumstances, I would consider this to be only a de minimis violation.

IV

The failure of respondent to assure that his employees utilized safety belts and lifelines is more serious. Respondent argues that the use of lifelines would be inconvenient for the window washers and would double the cost of operation. There is no claim that such a requirement would be impossible—only impractical. In balancing any inconvenience in the use of safety belts and life-lines against the protection given against potential death or injury, the safety requirements must prevail. As pointed out in Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 477 (D.C. Cir. 1974), the Act ‘represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs.’

Respondent also argued that a safety line would require increased use of an employee’s hands and thereby create a hazard. This was also the testimony of Mr. Volz. I am not persuaded, however, that the potential for danger is as great as when no safety line is used. With an independently rigged safety line, an employee has the double protection afforded by that line and the boatswain’s chair rigging. Failure of both at the same time would be a most unlikely occurrence.

In my opinion there exists a definite risk of death or serious injury to any individual working in a boatswain’s chair who is not wearing a safety belt attached to an independently suspended life-line. The fact that Mr. McLemore and Mr. Ford had no personal knowledge of cases where rigging has fallen (although the latter stated he had read in the newspaper of such incidents occurring up north) does not mean that the potential for danger is not there. Accordingly, I conclude that respondent was in violation of 29 C.F.R. 1926.451(l)(4).

Complainant has proposed a penalty of $700.00 for both violations. However, considering that the violation of 1926.451(l)(1) is de minimis, the size of the company, history of no previous violations, and other factors, I deem a penalty of $350 to be appropriate and reasonable in this case.

I reach the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. That at the time and place in question, one of respondent’s employees, while engaged in washing windows of a 10-story building, was suspended in a boatswain’s chair at a height of 55 feet.

2. That the boatswain’s chair used by said employee was not reinforced on the underside by cleats securely fastened to prevent the board from splitting.

3. That said boatswain’s chair was strung on the underside with steel cable crisscrossed through four holes in the corners.

4. That in the event the chair seat broke or plit, the crossed cables would prevent the employee from falling.

5. That said employee was not using an independently rigged safety or lifeline attached to his safety belt.

6. That had the rigging supporting the boatswain’s chair broken, the employee would have fallen with the substantial probability that he would have sustained death or serious injury.

7. That respondent’s president knew that his employees did not use independently rigged safety or lifelines while working and that the boatswain’s chair was not reinforced underneath by cleats.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause of action.

2. That, while the seat of the boatswain chair was not reinforced on the underside by cleats as specified in 29 C.F.R. 1926.451(l)(1), the steel cables crossed underneath would prevent an employee from falling.

3. That, in view of paragraph two above, the violation of 29 C.F.R. 1926.451(l)(1) is de minimis.

4. That respondent violated 29 C.F.R. 1926.451(l)(4) by not providing his employees with independently rigged lifelines.

5. That the violation of 29 C.F.R. 1926.451(l)(1) was serious.

Based upon the foregoing findings of fact and conclusions of law, that portion of the citation alleging noncompliance with 29 C.F.R. 1926.451(l)(1) is modified to allege a de minimis violation and, as so modified, is affirmed. The remaining portion of the citation alleging noncompliance with 29 C.F.R. 1926.451(l)(4) is affirmed and a penalty of $350.00 is assessed therefor.

So ORDERED.

CECIL L. CUTLER, Jr.

Judge

Date: November 8, 1976

1 Section 1926.451(l)(1) provides the following for boatswain’s chairs:

‘The chair seat shall not be less than 12 x 24 inches, and 1-inch thickness. The seat shall be reinforced on the underside by cleats securely fastened to prevent the board from splitting.’

Section 1926.451(l)(4) provides:

‘The employee shall be protected by a safety belt and lifeline in accordance with § 1926.104. The attachment point of the lifeline to the structure shall be appropriately changed as the work progresses.’