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.