UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76-267 |
OTIS
ELEVATOR COMPANY, |
|
Respondent. |
|
March
29, 1978
DECISION
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
BY THE COMMISSION:
A
decision of Review Commission Judge James A. Cronin, Jr. is before the
Commission for review pursuant to section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. [‘the Act’]. In his decision, the
Judge affirmed one item of a citation alleging a nonserious violation of §
5(a)(2) of the Act for failure to comply with 29 C.F.R. § 1926.451(a)(13).[1] He assessed a penalty of
$40.[2]
At
the time of the inspection, December 8 and 9, 1975, respondent was engaged in
installing elevators in a building under construction. Its employees were
performing their work from a thirty foot high Safway tubular weld frame
scaffold located in an elevator shaft. The employees used the rungs that were
built into the frame of the scaffold as the sole means of access to the working
areas of the scaffold. These rungs were 18 inches apart and were of varying
unspecified lengths. The compliance officer observed one of respondent’s
employees catch his foot on the bottom rung of the scaffold. The employee did
not dispute that his foot became caught, but stated that it occurred when he
tried to turn around on the scaffold instead of stepping directly off it.
The
elevator shaft consisted of three solid walls and an open side abutted by a
concrete floor ledge near the top of the scaffold. On the right side of the
elevator shaft there was a 14 inch space between the scaffold and the wall, on
the left side there was a 10 inch space, at the back of the scaffold there was
a two foot space, and in front there was a two and one-half foot space between
the scaffold and the concrete floor ledge.
In
his decision, the Judge held that the scaffold rungs did not provide access
equivalent to that of a ladder. He compared the scaffold rungs to those of a
job-made access ladder, citing to 29 C.F.R. §§ 1026.450(b) et seq. Those
standards require a uniform distance of 12 inches between rungs and a 15 inch
minimum length for rungs. Inasmuch as the scaffold rungs were 18 inches apart
and some were less than 15 inches wide, the Judge ruled that these differences
would adversely affect an employee’s ability to climb safely. He also
specifically found that there was sufficient room at the right rear of the
scaffold to install a ladder. He affirmed a nonserious violation of §
1926.451(a)(13) and assessed a $40 penalty based on the low risk of falling and
respondent’s good faith.
Respondent
contends that the scaffold rungs provide access equivalent to that provided by
a separate access ladder, and therefore it is in compliance with the cited
standard. It asserts that Safway scaffolds are customarily used without
separate access ladders and that there have been no known accidents resulting
from climbing the rungs. In any event, respondent contends that it was
impossible to erect any other access ladder because of the size of the scaffold
in relation to the size of the elevator shaft. Respondent claims that a ladder
could not be installed in front of the scaffold because it would have
obstructed the front entrance through which elevator rails were brought into
the shaft.
We
agree with Judge Cronin that the scaffold rungs did not provide access
equivalent to that provided by a separate ladder. An equivalent means of access
must be virtually identical to a ladder and be as safe as that provided by a
properly constructed ladder. Rust Engineering Co. and Allegheny Industrial
Electric Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977–78 CCH OSHD para.
21,693 (Nos. 12200 & 12201, 1977). Consequently, we find a violation of § 1926.451(a)(13).[3] Charles H. Tompkins,
77 OSAHRC 197/D1, 6 BNA 1045, 1977–78 CCH OSHD para. 22,337 (No. 15428, 1977).
We
modify the Judge’s decision, however, to affirm a de minimis violation. As in
Charles H. Tompkins, supra; where the rungs of a scaffold were 18 to 20 inches
apart, the climbing safety of respondent’s scaffold was not appreciably
diminished by the uniform 18-inch distance between the rungs. The employee who
caught his foot in a rung did so when he turned around on the scaffold instead
of stepping directly off it.[4]
Accordingly,
we affirm a de minimis violation of § 1926.451(a)(13) and assess no penalty.
It is
so ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: MAR 29, 1978
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76-267 |
OTIS
ELEVATOR COMPANY, |
|
Respondent. |
|
November 8, 1976
Appearances:
For Complainant Arnold S. Battise, Esq.
Office of the Solicitor U. S. Department of Labor
555 Griffin Square Bldg.
Dallas, Texas 75202
For Respondent Bennett W. Cervin, Esq.
Thompson, Knight, Simmons & Bullion
2300 Republic National Bank Building
Dallas, Texas 75201
DECISION AND ORDER
Cronin, Judge, OSHRC:
This
is a proceeding under section 10 of the Occupational Safety and Health Act of
1970 (29 U.S.C. § 651 et seq., hereinafter called the Act) involving an
inspection of a respondent worksite at Tulsa, Oklahoma on December 8 and 9,
1975. As a result of this investigation, a citation characterized as ‘NON
SERIOUS’ and alleging violations of three safety standards was issued to
respondent on December 17, 1975. A notification of proposed penalty issued the same
date proposes a penalty of $40.00 for item 2 and no penalties for items 1 and
3.
Both
the citation and notification of proposed penalty were served on respondent by
sending it certified mail to its local sales and service office in Tulsa,
Oklahoma where they were received on December 18, 1975. Subsequently, these
documents were forwarded to Mr. Lloyd Binns, respondent’s superintendent and
supervisor of all construction work in the State of Oklahoma at his office in
Oklahoma City, Oklahoma and Mr. Binns received them on December 24, 1975. A
notice of contest dated January 14, 1976, and signed by E. S. Hancock,
Respondent’s Regional Safety Representative, was addressed to Mr. J. T. Knorpp,
the Secretary of Labor’s Area Director and received by the Department of Labor
on January 16, 1976.
On
January 29, 1976, the complainant filed a Motion to Dismiss Notice of Contest
on the ground that the notice of contest was not filed on or before January 13,
1976, alleged to be the last day of the 15 working period allowed for its
filing. It was asserted that the citation and the proposed penalty became a
final order of the Commission on January 13, 1976, thus depriving the
Commission of subject matter jurisdiction. By Commission order entered on April
19, 1976, the complainant’s motion was denied. The Motion to Dismiss was
renewed at the hearing on July 21, 1976 at Tulsa, Oklahoma and this Judge
reserved final decision on this matter (Tr 4–5).
Alleged Violations
The
alleged violation of 29 C.F.R. § 1926.401(c) was described in the citation as
follows:
‘The path from circuits, equipment and enclosures to
ground was not continuous; i.e., extension cord located in hatchway number 3
when tested showed an open ground.’
§
1926.401(a)(1), (a)(2) and (c), as promulgated by the Secretary of Labor,
provides:
(a) Portable and/or cord and
plug-connected equipment
(1) The noncurrent-carrying metal parts of
portable and/or plug-connected equipment shall be grounded.
(2) Portable tools and appliances
protected by an approved system of double insulation, or its equivalent, need
not be grounded. Where such an approved system is employed, the equipment shall
be distinctively marked.
(c) Effective grounding
The path from circuits, equipment,
structures, and conduit or enclosures to ground shall be permanent and
continuous; have ample carrying capacity to conduct safely the currents liable
to be imposed on it; and have impedance sufficiently low to limit the potential
above ground and to result in the operation of the overcurrent devices in the
circuit.
The
alleged violation of 29 C.F.R. § 1926.451(a)(13) was described in the citation
as follows:
An adequate access ladder or equivalent
safe access was not provided on scaffold; i.e., scaffold in use in hatchway
number 3 was not provided with access ladder nor did cross-bracing used in lieu
of this provide equivalent safe access.
§
1926.451(a)(13), as promulgated by the Secretary of Labor, provides:
An access ladder or equivalent safe access
shall be provided.
The
alleged violation of 29 C.F.R. § 1926.451(d)(7) was described in the citation
as follows:
Scaffold was not secured to the building
or structure at intervals not to exceed 30 feet horizontally and 26 feet
vertically to prevent movement; i.e., 30 foot tubular welded frame scaffold was
free standing in hatchway number 3 and was not secured to the structure.
§
1926.451(d)(7), as promulgated by the Secretary of Labor, provides:
‘To prevent movement, the scaffold shall
be secured to the building or structure at intervals not to exceed 30 feet
horizontally and 26 feet vertically.’
Jurisdiction and Issues
Respondent
does not contest this Commission’s jurisdiction, and, therefore, the only
issues to be resolved are:
1.
Whether the citation and notification of proposed penalty became final orders
of the Commission due to a failure by respondent to timely file its notice of
contest?
2.
Whether respondent was in violation of the Act as alleged, and if it was, what
penalty is appropriate?
Discussion
1.
Respondent filed its notice of contest in a timely manner and the Commission
has jurisdiction of this proceeding.
Section
10(a) of the Act provides:
If, after an inspection or investigation,
the Secretary issues a citation under section 9(a), he shall, within a
reasonable time after the termination of such inspection or investigation,
notify the employer by certified mail of the penalty, if any, proposed to be
assessed under section 17 and that the employer has fifteen working days within
which notify the Secretary that he wish contest the citation or proposed
assessment of penalty. If, within fifteen working days from the receipt of the
notice issued by the Secretary the employer fails to notify the Secretary that
he intends to contest the citation or proposed assessment of penalty, and no
notice is filed by any employee or representative of employees under subsection
(c) within such time, the citation and the assessment, as proposed, shall be
deemed a final order of the Commission and not subject to review by any court
or agency.
With
respect to the issuance of a citation this provision was recently interpreted
in the case of Buckley and Company, Inc. v. The Secretary of Labor, 507
F.2d 78, 81 (3d. Cir. 1975) as requiring—
‘. . . that notification must be given to
one who has authority to disperse corporate funds to abate the alleged
violation, pay the penalty or contest the citation or proposed penalty.’
Although
both the citation and notification of proposed penalty indicate that they were
being issued to: ‘Otis Elevator Company, 245 Park Avenue, New York, N. Y.
10017, Attn: Mr. Hubert Faure, President’, both were mailed to respondent’s
local sales and service office in Tulsa, Oklahoma where they were received on
December 18, 1975.
The
citation herein arises out of elevator construction and installation work
performed by Otis in Tulsa, Oklahoma, and it is undisputed that all of
respondent’s construction and modernization activities in the State of Oklahoma
are under the supervision of its Superintendent, Mr. Lloyd Binns, who maintains
his office in Oklahoma City, Oklahoma. He is the sole individual involved in
respondent’s construction activities in the State of Oklahoma with authority to
respond to OSHA citations and abate alleged hazards, and he did not receive the
citation and notification of proposed penalty until December 24, 1975 (Tr
76–79).
Applying
the principle enunciated in the Buckley case, supra, the receipt by
respondent’s superintendent on December 24, 1975, not the earlier receipt
December 18th, constitutes the date of respondent’s notification of the
proposed penalty for purposes of determining the 15 working day statutory
period allowed for the filing of a notice of contest. Respondent was required
to take action to contest the citation and proposed penalty within 15 working
days (Mondays through Fridays, excluding Federal holidays) after the December
24th notification. Not counting the day of receipt, December 24th, December
25th and January 1, 1976, Federal holidays, respondent had until January 16,
1976 to file a timely notice of contest. The record establishes that OSHA
received the notice of contest on January 16, 1976. Thus, the 15 working day
statutory period was complied with and this Commission has jurisdiction over
the proceeding.
2.
Respondent was not in violation of § 1926.401(c) because there was no
requirement to provide ‘effective grounding’ for the portable drills and
floodlight.
In
addition to establishing that the extension cord in the instant case contained
a defective or non-continuous grounding circuit, the Secretary also was obliged
to prove that the cord was in use or available for use in a situation where
effective grounding was required. As part of his direct case, the Secretary
established that the cord did not provide a continuous grounding circuit and
that it had been used ‘for portable equipment tools and so forth’ at the
particular worksite. The respondent, however, rebutted the Secretary’s prima
facie case of violation by introducing uncontradicted testimony that the cord
had been used at the site only with two River Falls ‘double-insulated’ drill
motors. In this Judge’s view respondent carried its burden of proving by a
preponderance of evidence that the portable tools were exempted from grounding
by the provisions of § 1926.401(a)(2). Thus, if no grounding was required no
violation of a standard mandating ‘effective grounding’ can be found with
respect to the drills.
On
cross-examination of respondent’s mechanic-in-charge, however, it also was
brought out, without objection, that the defective cord had been used with a
floodlight at two other respondent worksites during the 30 to 45 day period
prior to the December 9th inspection. This floodlight was not double insulated
and came with only a two-pronged cord. According to the uncontradicted opinion
of this witness, however, the floodlight did not have any exposed metal parts
which could possibly present an electrical shock hazard and it had a rubber
socket into which the bulb was inserted. In the absence of any evidence to the
contrary, this evidence preponderates in favor of a finding that the floodlight
was exempt from the applicability of § 1926.401(a)(1) because it was
protected from electrical shock hazards by a system ‘equivalent’ to a double
insulation within the meaning of § 1926.401(a)(2), and therefore, no grounding
was required.[5]
3.
Respondent was in violation of § 1926.451(a)(13) because the access to the
scaffold in these areas did not provide to employees safe access equivalent to
an access ladder.
Otis
was using a 30-foot high tubular welded frame scaffold of the Safeway brand, a
type of scaffold in use nationwide throughout the construction industry. This
scaffold, which was ‘possibly’ five-and-a-half feet long, front to back, and
six-and-a-half feet wide, had ‘rungs’ or braces built into each end of the
scaffold. These hollow, C-shaped braces were spaced approximately ‘18 inches’
apart and varied in width.[6] There was a two foot space
from the back edge of the scaffold to the back wall and a two-and-a-half foot
space in front of the scaffold. On the left side there was a ten inch space
between the left edge of the scaffolding and the side wall, and on the right
side, a 14 inch space existed between the scaffolding and the side wall.
The
sole means of access to the scaffold working areas was by means of the built-in
braces, and the compliance officer was of the opinion that it ‘is much more
difficult than using a standard ladder or its equivalent’. He based this
opinion on the greater step-up distance of 18 inches and the narrow width of
the braces which ‘makes it difficult to get good footing’. In support of this
latter point he testified that he observed a respondent employee get his foot
stuck on one of the braces while descending.
In
the opinion of respondent’s mechanic-in-charge, Mr. Tillett, a separate ladder
attached to the scaffold could not have been used effectively by the employees
under the existing conditions. In his view a ladder positioned in front would
have obstructed the work in progress and he also believes that if a ladder had
been installed on the sides or rear of the scaffold there wouldn’t have been
enough room for an employee to go up and down the ladder. Also, a smaller size
scaffold in his opinion couldn’t have been safely used because it would have
forced the employees to work an unsafe distance from their installation and
‘lean way over the side’ of the scaffold. Mr. Tillett further testified that he
has seen this type of scaffolding used ‘many times’ and never with a separate
access ladder. He also has never had any difficulty in using these braces for
access during the eight or nine times he has worked on such a scaffold, or
experienced any tendency to fall. At the time of inspection he climbed up and
down the scaffold three or four times to demonstrate to the compliance officer
that the braces were ‘easily accessible.’ He did not get ‘stuck at any time.’
On
this record this Judge is persuaded that the Secretary has satisfied his burden
of proving by a preponderance of the evidence that the built-in braces provided
lesser safe access than an access ladder.
The
compliance officer’s opinion that the built-in braces failed to provide
respondent employees with the same freedom from falling than would an access
ladder is adequately supported by a comparison of the configurations of the
scaffolding’s built-in-braces and those of an access ladder.
In
this Judge’s view the requirements for a job-made access ladder found at 29
C.F.R. § 1926.450(b) et seq. provides a standard of recognized safety
effectiveness against which alternative means of access permitted by §
1926.451(a)(13) can be measured. Compare for example the spacing of 18 inches
between the braces and the uniform spacing of 12 inches required for a job-made
access ladder, as well as the narrow width of the braces in question which
obviously are less than the 15 inch minimum prescribed for a cleat on a
job-made access ladder. When so compared, the conclusion is inescapable that
these substantial differences in the spacing and width between the built-in
braces and the cleats of an access ladder would adversely affect an employee’s
ability to climb and descend. Consequently, the safety effectiveness of the
access provided by respondent cannot be equated to the access of a standard
ladder.
Evidence
that Safeway scaffolds are often used in the construction industry without
separate ladders does not relieve respondent from providing safe access
equivalent to an access ladder. Nor is the absence of evidence that any falling
accidents have occurred as a result of the use of these scaffolds determinative
of whether ‘equivalent’ access has been provided. Finally, respondent’s
contention that it would have been impossible to effectively use a ladder under
the existing conditions is belied by the fact that a ladder could have been
attached to the right rear, support of the scaffold and the existing two foot
space would have supplied sufficient room for employee use.
4.
Respondent was not in violation of § 1926.451(d)(7) because the scaffold was
‘secured’ to the building or structure and movement was thereby prevented.
In
erecting the scaffold respondent’s employees placed plywood and wedges
underneath the scaffold to prevent its sliding. The plywood was cut to the
exact measurement of the hoistway so that it could not itself slip. Also, the
scaffold was further secured at its 20-foot level to prevent movement by
wedging a brace alongside the entire back of the scaffold between the walls of
the hoistway, and then tying the scaffold to this brace by means of No. 9 wire
(Tr 42). The scaffold did not move more than ‘one inch, inch and a half’ and
this movement came from the joints in the scaffolding itself. According to the
respondent’s mechanic-in-charge, someone would have had to force the scaffold
in order to create more movement. The compliance officer testified that he
observed ‘very slight’ movement when the employees went up and down the
scaffold.
This
standard is interpreted to require that the scaffold be made fast to the structure
at prescribed intervals. This does not mean, however, that the scaffold always
must be attached directly to the structure. This Judge is persuaded that the
bracing method used here constitutes compliance with the standard because the
scaffold, as constructed, was capable of no greater movement than if it had
been directly attached to the building. Assuming arguendo that the standard
requires a direct attachment to the structure itself and that respondent,
therefore, did not comply with the literal terms of the standard, this Judge
would characterize any such violation as de minimus rather than ‘NON SERIOUS’
because it would have only a neglible relationship to safety and health, and
would not warrant requirement of abatement or imposition of any penalty (See
Generally, Secretary v. National Rolling Mills Company, Docket No. 7987,
(September 21, 1976)).
5. A
$40.00 penalty for respondent’s violation is appropriate.
Respondent
is a large company in the elevator construction field with a past history of violations
under the Act. This part history, however, is not considered significantly
adverse. Also, there is nothing in the record to indicate a lack of good faith
on respondent’s part.
Although
the risk of falling was low it did exist and one of respondent’s employees
graphically demonstrated one of the deficiencies inherent in the provided
scaffold access by getting his foot stuck. Based on the foregoing, a $40.00
penalty appears appropriate and will encourage respondent to provide its
employees with better access in the future.
Findings of Fact
Based
on the credible evidence of record, the following facts are found:
1. On
December 9, 1975, respondent was engaged in the installation of an elevator in
Tulsa, Oklahoma.
2. At
this worksite on December 9th an electrical extension cord with a
non-continuous grounding circuit was available for use, and has been used, with
two portable drills. These drills were double insulated (Tr. 10, 53–55).
3.
During the 30 to 45 day period prior to the December 9th inspection, this
extension cord had been used with a floodlight at two other respondent
worksites. This floodlight does not have any exposed metal parts which could
possibly present an electrical shock hazard and it has a rubber socket into
which the light bulb is inserted (Tr. 63–65).
4.
The sole means of access to the scaffold working area was by means of the
built-in braces on the ends of the Safeway brand scaffold. This means of access
does not have the same safety effectiveness as the access provided by an access
ladder (Tr. 12–13, 15–16, 19, 23–24, 26, 46–51; Exhibits C–1, C–2).
5. An
access ladder could have been attached to the right rear support of the
scaffold and employees would have had room enough to effectively use this
ladder (Tr. 47; Exhibits C–1, C–2).
6.
The scaffold which was thirty feet high and six-and-a-half feet wide was
secured to the hoistway structure because it was attached to a brace wedged
between the sides of the hoistway by means of No. 9 wire (Tr. 43–45). There was
‘very slight’ movement observed in the scaffold (Tr. 31).
7.
Under the existing conditions the scaffold, as constructed, was capable of no
greater movement than if it had been directly attached to the hoistway
structure.
Conclusions of Law
1. On
December 9, 1975, the respondent was not in violation of 29 C.F.R. §
1926.401(c).
2. On
December 9, 1975, the respondent was in violation of 29 C.F.R. §
1926.451(a)(13).
3. On
December 9, 1975, the respondent was not in violation of 29 C.F.R. §
1926.451(d)(7).
4.
The penalty of $40.00 for respondent’s violation of 29 C.F.R. § 1926.451(a)(13)
is appropriate.
ORDER
Based
on the foregoing findings of fact, conclusions of law, and the entire record,
it is ORDERED:
1.
The alleged violation of 29 C.F.R. § 1926.451(a)(13) is AFFIRMED, and a penalty
of $40.00 ASSESSED.
2.
The alleged violations of 29 C.F.R. § 1926.401(c) and § 1926.451(d)(7) are
VACATED.
James A. Cronin, Jr.
Judge, OSHRC
Dated: November 8, 1976
[1] The standard
provides as follows:
§
1926.451 Scaffolding.
(a) General
requirements.
(13)
An access ladder or equivalent safe access shall be provided.
[2] The Judge also
held that respondent had timely filed its notice of contest, and vacated two
items of the citation alleging non-serious violations of 29 C.F.R. §§
1926.401(c) and 1926.451(d)(7). Neither party has excepted to the Judge’s
disposition of these matters. Accordingly, the Commission will not review them.
See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339,
1976–77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC
37/A2, 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976).
[3] With respect to
respondent’s contention that it was impossible to provide an access ladder, the
Judge properly found that a ladder could have been installed at the right rear
of the scaffold. Assuming it was impossible to provide a ladder, respondent
would still be required to provide some means of equivalent safe access. In
order to sustain an ‘impossibility’ defense, respondent would have to prove
that it was impossible both to erect an access ladder and to provide some means
of equivalent safe access. Respondent has failed to do this.
[4] In Ringland-Johnson,
Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976–77 CCH OSHD para. 20,801 (No.
3028, 1976), aff’d, 55§ F.2d 1117 (8th Cir. 1977), we held that a nonserious
violation of § 1926.451(a)(13) was established because the distance between the
rungs of a scaffold varied between 17 and 27 inches and some of the rungs were
only six inches wide.
[5] In regard to
respondent’s additional defense, the fact that the defective grounding circuit
also could not have been used by the floodlights two-pronged plug would not
have excused respondent’s failure to provide effective grounding if the
evidence had established that grounding of the floodlight was required by the
Act.
[6] The compliance
officer’s estimate of ‘18 inches’ is accepted rather than the ‘guess’ of ‘14–15
inches’ by respondent’s mechanic-in-charge because the former’s estimate was
based on prior measurements of similar scaffolds.