UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3028
RINGLAND-JOHNSON, INC.,
Respondent.

June 16, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

A February 27, 1974, report of Administrative Law Judge Alan M. Weinman is before this Commission 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 Weinman would vacate a serious citation which alleged a violation of section 5(a)(1) of the Act, and item 2 of a nonserious citation which alleged a violation of 29 C.F.R. 1926.500(d)(1). He would affirm item 1 of the nonserious citation which alleged a violation of 29 C.F.R. 1926.451(a)(13) and would assess a penalty of $40. For the reasons set forth herein, we adopt Judge Weinman’s recommendation as to item 1 but conclude that he erred in recommending that the serious citation and item 2 of the nonserious citation be vacated.[1]

The facts are these: Respondent was engaged in construction work on a circular concrete structure or bin which measured approximately 45 feet in diameter. Inside the bin, five men were observed pouring pumped-in concrete into forms while standing on 2 x 10 planks. The planks were laid as a wood grid across a tubular welded scaffold frame which served as a temporary work surface. The planks were laid sufficiently far apart from each other to result in gaps 30 to 40 inches wide, through which employees could fall to the ground level 19–½ feet below. When work was completed at one form, the employees would move the planks to the area close to the next form.

A ten-foot-long runway consisting of two 2 x 10 planks ran between a scaffold platform outside of the bin and the grid on which employees were working inside the bin. The runway was not equipped with guardrails and was 19–½ feet above the ground. The runway provided the most direct and convenient route between the grid inside the bin and the scaffold outside the bin. The hose through which the concrete was being pumped ran alongside the runway.

The scaffold inside the bin was not provided with a ladder. Employees used the horizontal support rungs on the ends of the scaffold frame as a means of ascending and descending in the bin. The support rungs were spaced at varying intervals, ranging from 17 to 27 inches. Some of the rungs were only 6 inches wide.

On these facts, Respondent was issued a serious citation alleging a violation of the general duty clause[2] on the basis that the wood grid system on which employees were working constituted a recognized hazard causing or likely to cause death or serious physical harm. The nonserious citation alleged violations of the special duty clause[3] in that the runway was not equipped with guardrails contrary to 29 C.F.R. 1926.500(d)(1) and in that a ladder or its equivalent was not provided on the scaffold inside the bin contrary to 29 C.F.R. 1926.451(a)(13).

ALLEGED VIOLATION OF SECTION 5(a)(1)

Judge Weinman found that the conditions as alleged in the serious citation existed: that is, that employees were exposed to falls of 19–½ feet due to unguarded and uncovered gaps in the wood grid on which they were working. He further found that the condition constituted a recognized hazard likely to cause death or serious physical injury. Nevertheless, he would vacate the citation since he agreed with Respondent’s contention that a specific standard, 29 C.F.R. 1926.500(b)(1), applied.[4] This standard is codified in Subpart M of Part 1926, and the Subpart is entitled ‘Floor and Wall Openings, and Stairways.’ Subparagraph 500(b)(1) provides in pertinent part that ‘floor openings shall be guarded by a standard railing and toeboards or cover.’ A floor opening is defined at 29 C.F.R. 1926.502(b) as ‘an opening measuring 12 inches or more in its least dimension in any floor, roof or platform through which persons may fall.’ A platform is defined in 29 C.F.R. 1926.502(e) as ‘a working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.’ The Judge concluded from these definitions that the grid on which the employees were working was a platform and therefore that the gaps between the planks were floor openings, subject to the requirements of 1926.500(b)(1).

The Judge determined correctly that the grid was ‘a working space for persons . . .’ such as a ‘. . . platform’ but we do not agree that subparagraph 500(b)(1) applies. Rather what is involved here is the working surface of a scaffold, specifically, the working surface of a tubular welded scaffold. And a scaffold is defined at 29 C.F.R. 1926.452(b)(27) as

Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

As is evident from the facts the entire structure was portable and moved according to the needs of the job. Thus it was a temporary elevated platform within the meaning of the term ‘scaffold’ and not a platform having the degree of permanency suggested by the words ‘operation of machinery and equipment’ by paragraph 502(e).

Since we determine that the structure is a scaffold within the meaning of subparagraph 452(b)(27), the question is whether any of the scaffolding standards of 29 C.F.R. 1926.451 apply. If they do not, then, the general duty section applies[5] so long as Complainant has proven its application.

Tubular welded scaffolds in the Construction Industry are regulated by 29 C.F.R. 1926.451(d) and subparagraph (8) of paragraph (d) provides that ‘maximum permissible spans or planking shall be in conformity with paragraph (a)(10)’ of section 451. The grid constitutes the planking. Paragraph (a)(10) provides that planking shall be of scaffold grades or equivalent and it and paragraph (a)(11) prescribes the maximum permissible spans for various size planks such as 2 x 10s for different loading conditions and lumber types. Paragraph (a)(12) provides that planks shall be overlapped by 12 inches or secured from movement. Obviously, overlapping applies to the plank ends; 2 x 10 planks cannot be overlapped by 12 inches. Insofar as we are able to determine the Secretary has not promulgated a standard that requires tight planking of the platform portion of a tubular welded scaffold. In this regard we note that tight planking is required for ‘manually propelled mobile scaffolds’ (29 C.F.R. 1926.451(e)(4)), ‘outrigger scaffolds’ (29 C.F.R. 1926.451(g)(4)), ‘two point suspension scaffolds’ (29 C.F.R. 1926.451(i)(10)(ii), and the like.

Inasmuch as we find that neither 1926.500(b)(1) nor any other standard applies to the conditions here,[6] we conclude that section 5(a)(1) of the Act applies.[7] Judge Weinman found that the conditions as alleged in the serious citations existed. Regarding the existence of feasible measures that would have reduced the existence of the hazard, the compliance officer testified that Respondent would not have been issued a citation if the planks had been laid so that the spaces were not large enough for an employee to fall through. Consequently, we find that Respondent was in violation of the general duty clause based on the facts as found by the Judge.

We turn now to the assessment of an appropriate penalty. Respondent is of moderate size, employing between 65 and 200 employees. It does not have a prior history under the Act and its good faith was not questioned. However, the gravity of the violation was high. Five men were exposed to falls while working on boards which were laid approximately 30 to 40 inches from each other. On balance, we conclude that a penalty of $500 is appropriate and will serve the purposes of the Act.

ALLEGED NONSERIOUS VIOLATION OF 29 C.F.R. 1926.500(d)(1)

Respondent was cited for a nonserious violation of 1926.500(d)(1) in that a runway was not equipped with guardrails of any kind. Judge Weinman would vacate this item of the citation on the basis that 1926.500(d)(2) applies to runways.[8] In this regard, he denied the Secretary’s motion, made during the course of the hearing, to amend the citation and complaint to allege the applicable standard. However, he acknowledged that Respondent would not be prejudiced by the amendment.

On review, the Secretary urges that the Judge’s denial of its motion to amend was an abuse of discretion since even the Judge found Respondent would not be prejudiced by an amendment. Respondent contends that the motion was untimely in that the Secretary’s failure to notice the mistake in the cited standard prior to the time of the hearing was unjustified.

We conclude that the Judge erred in refusing to permit an amendment. The citation and complaint both contained descriptions of the alleged violation which apprised Respondent of the condition which was the subject of the citation. The citation of the incorrect standard was shown to be due to inadvertence rather than any attempt to mislead Respondent. In such circumstances, leave to amend should be freely given. See Rule 15(a) of the Federal Rules of Civil Procedure. Therefore, we reject the Judge’s recommendation and grant the Secretary’s motion to amend the citation and complaint to allege a violation of 1926.500(d)(2).

The preponderant evidence establishes that Respondent was in violation of 1926.500(d)(2). It was undisputed that the runway lacked guardrails. We have recently stated that exposure to hazard is to be determined by a rule of access. Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHC para. 20,448 (Feb. 20, 1926). In this case, five employees were working in close proximity to the runway. The runway provided the most convenient and direct passage between the wood grid inside the bin and the scaffold outside the bin. On the basis of these facts, we find that access has been established. In any event, Respondent’s job superintendent admitted to the compliance officer during the inspection that employees used the runway.[9] Accordingly, we find a violation of 1926.500(d)(2).

We turn now to the assessment of an appropriate penalty for the violation. Respondent is of moderate size, has no prior history, and its good faith has not been questioned. The gravity of the violation is moderately high. The runway was entirely unguarded and was located 19–½ feet above ground level. On balance, we conclude that a penalty of $65 is appropriate and will serve the purposes of the Act.

ALLEGED NONSERIOUS VIOLATION OF 29 C.F.R. 1926.451(a)(13)

Respondent was cited for a nonserious violation of 1926.451(a)(13)[10] in that the scaffold was not provided with an access ladder or its equivalent. Judge Weinman would affirm this violation, finding that the horizontal support rungs on the ends of the scaffold frames did not provide means of access equivalent to that provided by a ladder. He would assess a penalty of $40.

On review, Respondent urges primarily that the scaffold framework did provide an equivalent means of access.[11] We determine that, contrary to Respondent’s contention, the Judge’s finding that the support rungs did not provide an equivalent means of access to the scaffold is supported by preponderant evidence. Accordingly, we will not disturb the finding. Particularly persuasive in this regard is the unrebutted testimony that the rungs were spaced at varying intervals and some were only six inches wide. Consequently, we adopt the Judge’s recommendation that Respondent was in violation of 1926.451(a)(13) and that a penalty of $40 be assessed.

Accordingly, we find that Respondent was in violation of section 5(a)(1) of the Act and assess a $500 penalty therefor. We further find that Respondent was in nonserious violation of 29 C.F.R. 1926.500(d)(2) and 29 C.F.R. 1926.451(a)(13) and assess penalties of $65 and $40 respectively. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: JUN 16, 1976

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The disposition[12] ordered in Judge Wienman’s decision is correct and should be affirmed.[13] Accordingly, I concur with the Commission’s affirmance of a nonserious violation of 29 C.F.R. § 1926.451(a)(13). I disagree, however, with the Commission’s action on the remaining charges.

My colleagues err in finding that respondent violated 29 U.S.C. § 654(a)(1). Although they correctly conclude that no specific standards apply to the alleged violation, they incorrectly hold that the testimony of complainant’s inspector established ‘the existence of feasible measures that would have reduced the existence of the hazard.’ The majority states that the inspector testified that respondent would not have been cited if planking ‘had been laid so that the spaces were not large enough for an employee to fall through.’ This is wholly inaccurate. The inspector testified only that a serious citation would not have issued if a man could not have fallen through the holes, he said nothing about planking, nor did he indicate that a citation for a nonserious violation would not have been issued in that instance.

In National Realty and Construction Company, Inc. v. OSAHRC 409 F.2d 1257, 1268 (D.C. Cir. 1973) the Court specifically held that

‘[T]he Secretary must be constrained to specify the particular steps a cited employee should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.’

Complainant herein has simply not met this burden, and Messrs. and Cleary are acting contrary to the following admonition in National Realty by applying their own theory to perfect complainant’s case:

‘Only by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done can the Commission and the courts assure even-handed enforcement of the general duty clause.’

489 F.2d at 1268.

This same majority recognized the efficacy of the National Realty ruling vis-a-vis the Court’s concern that employers should have of the means for compliance in Secretary v. Ace Sheeting & Repair Company OSAHRC Docket No. 5284, December 31, 1975. By discovering ‘ measures’ in the instant case, however, the Commission majority digressed therefrom by subscribing to the deus ex machina theory of evidence.

I also take exception to the majority’s affirmance of the citation for nonserious violation of 29 C.F.R. § 1926.500(d)(2). The citation pertaining to this item alleged that:

‘A two-plank (2″“ x 10″“ wide runway connecting a scaffold platform and an elevated wooden grid, 19 feet, 6 inches above ground level, was not equipped with guardrails.’

My colleagues affirm the citation by determining that employee access to the unguarded runway is established because (1) it provided the most convenient and direct passage between the wood grid inside the bin and the scaffold outside the bin, and, (2) the contradictory evidence presented by respondent’s superintendent was not credible. I disagree with that determination.

My reasons for rejecting the Barnako-Cleary crystal ball ‘access’ rule in favor of a rule that requires complainant to establish actual employee exposure are fully set forth in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion). Since the evidence in this case does not establish that any of respondent’s employees were actually exposed to the unguarded runway, the citation should be vacated. In addition, however, I am constrained to comment on my colleagues’ methodology in arriving at their credibility determination.[14]

The majority first states that respondent’s superintendent admitted to the inspector during the inspection that employees used the runway. In order to maintain public confidence in the Commission’s fairness in considering the evidence, they state at footnote 9 that:

‘Although the job superintendent contradicted this statement at the hearing by testifying that he did not recall any employee using the runway, Judge Weinman questioned the superintendent’s testimony at the hearing as generally incredible. We will not disturb a Judge’s credibility determination.’ (Emphasis supplied.)

What Messrs. Barnako and Cleary have done in this instance, however, is to characterize specific testimony given in regard to the 29 U.S.C. § 654(a)(1) violation as omnipresent in the record. This is both unfair and false. Judge Wienman, whose decision is attached hereto as Appendix A, did not find the superintendent’s testimony ‘generally incredible,’ but instead found that it was not credible with respect to the size of the floor openings which were the subject of the general duty clause violation. The Judge made no finding of facts regarding the 29 C.F.R. § 1926.500(d)(2) charge. Nevertheless, my colleagues discern no distinction in their haste to convict and disregard those basic evidentiary considerations which most adjudicators adhere to as fundamental to due process.

Accordingly, I do not join in the majority’s affirmance of the above-mentioned charges because to do so would be to adopt rulings which are not supported in law or fact.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3028
RINGLAND-JOHNSON, INC.,
Respondent.

February 27, 1974

DECISION AND ORDER

APPEARANCES:

STEPHEN REYNOLDS, Esquire, United States Department of Labor, Office of the Solicitor, Kansas City, Missouri for the Secretary of Labor

I. JOHN ROSSI, Esquire, P. O. Box 631, Des Moines, Iowa, for the Respondent

STATEMENT OF THE CASE

Alan M. Wienman, Judge, OSAHRC:

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. One Citation for Serious Violation alleges on the basis of an inspection of a workplace under the ownership, operation or control of Respondent located at Clinton, Iowa that the Respondent violated Section 5(a)(1), the General Duty Clause of the Act. A second Citation is for Other Than Serious Violations and alleges that the Respondent violated the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary pursuant to Section 6 thereof. Both Citations were issued May 2, 1973.

The Citation for Serious Violation sets forth the alleged violation in the following form:

Standard or regulation allegedly violated

Date on which alleged violation must be corrected

Description of alleged violation

Public Law 91–596, Section 5(a)(1), General Duty Clause of the Act

Immediately Upon Receipt Of This Citation.

(Building #217.) A wooden grid system supported by tubular welded frame scaffolds at a height of 19 1/2 feet had openings large enough for employees to fall through. A total of five men were working from this grid (concrete was being placed in tubular forms). At a given time, four men together would be handling and/or holding a line from a concrete pump.

The alleged violation in this citation was cited from the ‘Occupational Safety & Health Act of 1970’ Public Law 91–596, dated December 29, 1970.

The Citation for Other Than Serious Violations sets forth the alleged violations in the following form:

Item number

Standard of regulation allegedly violated

Date on which alleged violation must be corrected

Description of alleged violation

29 CFR 1926.451(a)(13), page 27535, Column 3

Immediately Upon Receipt Of This Citation

(Building #217.) Two ironworkers had to climb on scaffold frames to reach their work areas. The scaffold frames were six feet and six inches high per frame and were built three frames high. No access ladder was provided for the men, and the six foot and six inch scaffold frames do not provide equivalent safe access because of their design.

29 CFR 1926.500(d)(1), page 27543, Column 3

Immediately Upon Receipt Of This Citation

(Building #217.) A two-plank (2″ x 10″ wide) runway connecting a scaffold platform and an elevated wooden grid, 19 feet, 6 inches above ground level, was not equipped with guardrails.

The alleged violations in this citation were cited from the Federal Register, dated December 16, 1972, Volume 37, Number 243, Part II, Regulations for Construction.

The standard codified as 29 CFR 1926.451(a)(13) provides as follows:

1926.451 Scaffolding.

(a) General Requirements . . .

(13) An access ladder or equivalent safe access shall be provided.’

The standard codified as 29 CFR 1926.500(d)(1) provides as follows:

‘(d) Guarding of open-sided floors, platforms and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.’

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated May 2, 1973 from Warren Wright, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor that he proposed to assess a penalty of $500.00 for the alleged serious violation, penalties of $40.00 and $65.00, respectively, for Item 1 and Item 2 of the Citation for Other Than Serious Violations.

Respondent filed a timely Notice of Contest in which it contested all Citation items and Proposed Penalties. After Complaint and Answer had been filed by the parties, the case came on for hearing at Davenport, Iowa on September 5, 1973.

THE ISSUES

The initial issues framed by the pleadings are whether Respondent violated the Act as alleged in the Citations issued May 2, 1973, and, if so, what penalties, if any, are appropriate therefor.

Additional issues were raised at the close of Complainant’s case when Respondent made several Motions for dismissal which were taken under advisement. In substance, Respondent’s Motions urged:

(a) That the entire matter be dismissed because the Citations failed to state the date the alleged violations occurred;

(b) That Item 2 of the Citation for Other Than Serious Violation be dismissed because the allegation of a violation of 29 CFR 1926.500(d)(1) in Paragraph IV(a) of the Complaint refers to employees being exposed to an allegedly dangerous condition while the Citation does not refer to employee exposure;

(c) That the allegation of a violation of the General Duty Clause, Section 5(a)(1) of the Act, be dismissed because there was a specific job safety standard applicable to the conditions described in the Citation for Serious Violation;

(d) That Item 2 of the Citation for Other Than Serious Violation be dismissed because the standard cited, 29 CFR 1926.500(d)(1), was acknowledged to be an incorrect reference by Complainant; (Respondent further moved that Complainant’s Motion to Amend the Citation and substitute a reference to 29 CFR 1926.500(d)(2) in place of 29 CFR 1926.500(d)(1) be denied.)

*3 (e) That Item 1 of the Citation for Other Than Serious Violation be dismissed because the cited regulation, 29 CFR 1926.451(a)(13), is unenforceably vague.

In his Brief Counsel for Respondent raised additional issues relating to—

(1) The conduct of the inspection insofar as it resulted from the Compliance Officer visiting the worksite area for the purpose of inspecting another employer pursuant to an employee complaint;

(2) The propriety and legal affect of Paragraph VII of the Complaint which warned that the description of the violations had been slightly changed and attempted to amend the Citation to conform to the allegations of the Complaint ‘insofar as the Citation may be inconsistent with . . . this Complaint.’

SUMMARY OF THE EVIDENCE AND DISCUSSION

The Inspection

Uldis Sid Levalds, OSHA Compliance Officer, testified he inspected Respondent’s construction site at 1250 Beaver Channel Parkway, Clinton, Iowa on April 12, 1973 (T. 8). Levalds had come to the area because of a complaint filed by an employees’ union of Clinton Corn Products (T. 29), and he found some construction work going on within the food company plant (T. 44). Levalds was accompanied by a representative from Clinton Corn Products who led him to a field office shanty where he met Duane Lord, identified as a superintendent with Ringland-Johnson, Inc. Levalds presented his credentials to Lord, explained the purpose of the visit as a general type inspection and asked Load to show him his work areas. They then proceeded to look at two circular concrete structures that constituted Respondent’s work areas (T. 9).

Respondent urges the proposition that since the original inspection of Clinton Corn Products was initiated by an employee complaint pursuant to Section 8(f)(1) of the Act, the Compliance Officer’s activities had to be confined to the special Section 8(f)(1) inspection. The basic premise of this argument is that Section 8(f)(1) serves to limit the Secretary’s inspection activities. This argument was considered and rejected by the Commission in the case of Secretary of Labor v. Aluminum Coil Anodyzing Corp., OSAHRC Docket No. 829. In that Decision Commissioner Van Namee pointed out that while Section 8(f)(1) imposes a specific duty upon the Complainant to conduct a ‘special inspection’ when certain specific conditions precedent are met, Section 8(f)(1) imposes no limitation upon the Secretary’s broad authorization to make inspections and investigations as empowered by Section 8(a). ‘According to the plain terms of this section, the only limitations on his authority are that inspections be ‘within reasonable limits’ and made ‘during regular working hours and at other reasonable times.’’

That the Compliance Officer was in the vicinity of Respondent’s worksite as a result of a Section 8(f)(1) employee complaint related to another employer is happenstance. Absent a showing that the Secretary has violated the conditions of Section 8(a), Respondent is without basis for objecting to the inspection.

The Citations

The Citations issued subsequent to Mr. Levalds’ inspection bore the date they were issued, May 2, 1973, but in describing the alleged violations did not specify the date of the inspection. Respondent contends that the absence of an inspection or occurrence date on a Citation constitutes a failure to comply with the provisions of Section 9(a) of the Act which requires that ‘each Citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.’

We agree with Respondent—the Citations herein did not comply with provisions of the Act—but are constrained to deny relief on this ground. The reasons for both agreeing with Respondent and ruling adversely to his position warrant amplification.

First, the Secretary’s practice of issuing citations without specifying an inspection or occurrence date is to be condemned. Two separate sections of the Act emphasize the importance Congress placed on the time interval between inspection and citation. Section 9(c) provides that ‘No citation may be issued . . . after the expiration of six months following the occurrence of any violation.’ Section 9(c) is a statute of limitations, Secretary of Labor v. Chicago Bridge and Iron Company, OSAHRC Docket No. 744. A citation issued in violation of Section 9(c) is clearly illegal, but a Respondent cannot ascertain from the face of the citation whether it has been served with a valid instrument under the present OSHA practices.

Section 9(a) of the Act directs the Secretary to issue citations ‘with reasonable promptness.’ The Commission has construed this section to apply to the time period for performing the ministerial tasks involved in issuing a citation after Complainant has determined that a violation has occurred. Chicago Bridge and Iron, supra, fixes a comparatively brief period for this function.

An argument might be constructed that it is unnecessary for Complainant to specify the inspection date on a citation because the employer earlier was given notice of and an opportunity to participate in the inspection under the terms of Section 8(e).[15] The difficulty with this reasoning is the decision in another skirmish involving the Secretary of Labor v. Chicago Bridge and Iron, OSAHRC Docket No. 244, wherein it was ruled that the language of Section 8(e) is directory only. Conceivably an inspection of an employer’s work area may be conducted without his knowledge, and much mischief will follow if the Secretary is later permitted to issue a citation which does not inform the Respondent of the inspection date.[16]

We are persuaded that the Citation in the instant case failed to comply with the Section 9(a) requirement that ‘Each citation . . . shall describe with particularity the nature of the violation,’ and Respondent’s proper remedy was a timely motion to vacate. It would appear, however, that under the guidelines enunciated in Secretary of Labor v. Chicago Bridge and Iron, OSAHRC Docket No. 744, issues relating to the validity of the citation should be raised early in the proceedings, i.e., in the Notice of Contest or in the employer’s Answer. The Respondent herein did not raise the issue until after the close of Complainant’s case at the hearing—long after it had been informed of the occurrence date by allegations in the Complaint and testimony of the Compliance Officer. The motion was not timely made and must be denied.

The Complaint and Amendment Issues

As noted, the Complaint filed June 8, 1973, alleged the safety violations charged in the Citations occurred April 12, 1973. The Complaint paragraphs setting forth the violations generally followed the descriptions on the Citations but not in hæc verba. Paragraph IV(a)(1), referenced to Item 1 of the Citation for Other Than Serious Violation, was more economical in its language than the Citation description. Paragraph IV(a)(2), referenced to Item 2 of the Citation for Other Than Serious Violation, was larger than the Citation description, adding an allegation that four laborers and one carpenter had been exposed to the violation.

Paragraph VII of the Complaint acknowledged that the descriptive portions of the Citation had been altered slightly and asserted that the Citation ‘are hereby amended to conform to the allegations of the Complaint.’

Respondent contends the changes in the Complaint deprived it of due process and contravened Commission Rule 2200.33(a)(3) which states:

(3) Where the Secretary in his Complaint seeks to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

We do not agree with Respondent that the Complaint violates Commission Rules of Procedure. We note that Rule 2200.33(a)(2) requires the Secretary to set forth ‘with particularity’ matters which need not be stated in the citation:

(2) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

(i) The basis for jurisdiction;

(ii) The time, location, place and circumstances of each such alleged violation; and

(iii) The considerations upon which the period for abatement and the proposed penalty on each such alleged violation is based.

Quite obviously Rule 2200.33(a)(2) requires the Secretary to allege additional facts in the Complaint which do not appear on the Citation, but such allegations are not an ‘amendment’ of the Citation within the meaning of Rule 2200.33(a)(3). For instance, a fuller description of the ‘circumstances’ of the alleged violation does not constitute an amendment of the citation as long as the substance of the charge is not changed. Thus it is proper for the Complaint to set forth the number of employees exposed to an allegedly unsafe condition although this circumstance is not detailed on the Citation. ‘Amendment’ is employed in Rule 2200.33(a)(3) within the frame of a pleading amendment. In this sense, amendment is the correction of an error. Hardin v. Boyd, 5 S. Ct. 771, 773, 113 U.S. 756; Shroyer v. Pittenger, 67 N.E. 475, 477, 31 Ind. App 158, citing Anderson, Law Dict.; Black, Law Dict.

Whenever the Secretary seeks to correct error in the citation or proposed penalty, Rule 2200.33(a)(3) applies, and he must set forth the reasons for the amendment and state with particularity the change sought. When, as in the instant case, there is no attempt to correct the citation or proposed penalty, the language employed in Paragraph VII of the Complaint is unnecessary. When the Complaint does seek to correct error appearing on the Citation, such language is futile because it fails to satisfy Rule 2200.33(a)(3). (See Secretary of Labor v. Martin Iron Works, Inc., Docket No. 1690, wherein Judge Cronin condemned similar language in a Complaint which sought to make major corrections in a Citation.)

In the instant case there was a bona fide attempt to correct an error in the Citation later in the proceedings. During the Compliance Officer’s testimony it came to light that he intended to charge Respondent with a violation of regulation 29 CFR 1926.500(d)(2) but entered 1926.500(d)(1) on the penalty assessment sheet. (T. 20) The incorrect reference was repeated in Item 2 of the Citation for Other Than Serious Violation and Paragraph IV(a)(2) of the Complaint. The Secretary thereupon moved to amend the Citation and Complaint.

Under the circumstances we feel the motion should be denied. The customary test for such a proposed amendment is whether the Respondent was surprised or prejudiced in its efforts to prepare its defense, i.e., whether there was adequate notice of the nature of the charge. In all probability there was little prejudice or surprise herein in view of the detailed description of the violation of the Citation. Nevertheless it would be poor practice to permit substitution of an entirely new charge midway in a hearing for no more cause than the Secretary’s neglect to check a citation reference. We are mindful of the huge volume of inspections conducted by OSHA officials and the pressures under which their staffs work in order to issue citations within the time limits prescribed by the Act. It would be remarkable if a substantial number of errors were not made in documents prepared under these circumstances. But the Secretary’s failure to detect erroneous references in contested citations prior to the hearing is neither remarkable nor excusable. The Citation herein was issued on May 2, 1973, the Complaint was filed June 8, 1973 and hearing was held September 5, 1973. Time enough to catch the error, and reason enough to deny the amendment. Item 2 of the Citation for Other Than Serious Violation and the $65.00 penalty proposed thereon will be vacated.

Citation for Serious Violation: The General Duty Clause

The Citation for Serious Violation, alleging a violation of Section 5(a)(1) of the Act (the ‘General Duty Clause’) was related to the conditions portrayed in the photographic exhibit G–4. Mr. Levalds testified he observed and photographed five of Respondent’s employees standing on some grid work consisting of pieces of lumber placed on top of the Safway scaffold frames at a height of 19 feet 6 inches. The men were pouring concrete into circular forms or columns. There were numerous openings in the grid work, 30 to 40 inches in size, through which a man could fall. (T. 21–23)

Levalds’ testimony as to the size and location of the openings appeared adequately confirmed by the photographic exhibit, although Respondent’s witness Lord maintained there were no openings large enough for a man to fall through ‘where the men was working . . . in my opinion.’ (T. 66, 74) The undersigned Judge Frankly found Lord’s testimony incredible (T. 80) and would resolve the factual issues in Complainant’s favor. The evidence established the existence of the conditions described on the Citation, but raised a more difficult legal question, namely, was a citation for violation of the General Duty Clause inappropriate because a specific safety regulation was applicable to the condition charged.

The law is clear that

where any occupational safety and health standard has been promulgated under the authority of Section 6 of the Act, which regulates a specific type of conduct, the Complainant must cite all alleged failures to comply with such conduct under that particular standard rather than the general duty clause. Secretary of Labor v. Sun Shipbuilding and Drydock Company, OSAHRC Docket No. 161.

At the close of Complainant’s case Respondent moved for dismissal of the General Duty Clause charge on the ground that if there was a violation, it should have been cited under a specific regulation—either 1926.500(b)(8) or 1910.28(a)(5) or 1910.23(a). And, in its Brief submitted subsequent to review of the Transcript, Respondent suggested that perhaps 1926.500(b)(1) and 1926.500(c)(1) are more appropriate if there is a violation.

After careful review of the evidence and the above-cited safety regulations, the undersigned Judge is persuaded that the Respondent should have been charged with a serious violation of the safety regulation codified as 29 CFR 1926.500(b)(1). The standards which appear under Subpart M—Floor and Wall Openings, and Stairways—provide:

1926.500 Guardrails, handrails and covers.

(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof or wall openings, or from stairways or runways.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

1926.502. Definitions applicable to this subpart.

(b) ‘Floor opening‘—An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

Compliance Officer Levalds testified that the grid structure constituted a work platform in his opinion but stated that Respondent was not cited under 1926.500 ‘because of some legal decision made previous to this.’ (T. 40–41) If there is any legal impediment to citing Respondent for not covering or guarding floor openings (as defined in 1926.502(b) under the provisions of 1926.500(b)(1)) we are not so advised by any authority submitted in Complainant’s Brief. Complainant did point out that 1926.500(b)(8) was inapplicable because it dealt with ‘floor holes’—openings measuring less than 12 inches—but maintained a determined silence as to 1926.500(b)(1).

In complete fairness to Complainant it should be noted that his discussion of the issue concluded by suggesting a remedial procedure if it be found that some specific standard rather than Section 5(a)(1) was applicable to the conditions, namely that Complainant be permitted to amend the Complaint to conform to the evidence and allege violation of the applicable standard. It is suggested that Secretary of Labor v. Brisk Waterproofing Co., Inc. OSAHRC Docket No. 1046, is authority for such a procedure.

We do not agree. Although the Brisk Waterproofing case parallels the instant proceedings in most major aspects, there is one significant difference. The Respondent therein did not deny the substantial allegations of the Citation and the Complaint but defended upon the narrow ground that its acts did not constitute ‘a recognized hazard.’ In the instant case Respondent denied every allegation relating to the Citation for Serious Violation and defended most vigorously. Whether Respondent could have erected additional defenses had it been cited for a specific violation of 29 CFR 1926.500(b)(1) no one can say, but it was neither charged with that responsibility nor given that opportunity. Rule 15(b) of the Federal Rules of Procedure may perhaps sanction amendment on more liberal terms than indicated in Brisk Waterproofing, but we are not prepared to extend those terms to a proceeding where the Secretary pleaded and tried a case with seemingly studied ignorance of the applicable standard. Complainant’s conditional request for leave to amend and plead a specific Section 5(a)(2) violation will be denied.

Citation Item Number 1: 29 CFR 1926.451(a)(13)

Compliance Officer Levalds testified that he and Mr. Lord ascended a wooden ladder to reach the top of a circular concrete wall. Inside the wall structure were some Safety tubular welded metal frame scaffolds, each 6 feet 6 inches in height. Three scaffold sections were connected for a total height of 19 1/2 feet. Levalds observed two men working at the bottom of the concrete structure and asked Lord if the scaffolds were used by the men to gain access to their work area. Lord answered in the affirmative (T. 10). The men were identified by Lord as his employees (T. 11).

Levalds did not actually observe any men climbing or descending the scaffold frames, but he repeated his testimony that Lord indicated Respondent’s employees use the frames as a means of access to their work areas (T. 45–46).

In his testimony Lord corroborated the fact that the Respondent’s employees use the scaffold as a means of access to get to the bottom of the tank. (T. 65, 73)

Levalds also testified that he observed no other means of access to the work area and that the configuration of the scaffold frames did not come close to a ladder requirement in his opinion. The horizontal spacings in the end frames were irregular. The first one measured 27 inches, the second 22, and the third 17 (T. 10). Levalds also stated that studs for cross bracing interfered with climbing action conducted on the horizontal members and the least width was only six inches (T. 10).

Both Lord and Mr. Larry B. Johnson, Respondent’s President, testified they had climbed the Safway scaffolds and believed they were safe. (T. 68, 85) Johnson stated that he had never had any difficulty nor did he ever see anyone fall or experience any difficulty and that the practice had been going on for many years (T. 85). However, in cross-examination he conceded that Safway manufactured a ladder for their scaffolds and that Respondent did not have one present at the jobsite (T. 88).

At the close of Complainant’s case Respondent moved for dismissal of the allegations of Citation Item Number 1 on the ground that 29 CFR 1926.451(a)(3) was too vague and indefinite to be enforceable, not giving fair notice of the type of access which is forbidden. This motion will be denied. The regulation is question has been frequently cited during the brief history of the Act. On two separate occasions violations of 29 CFR 1926.451(a)(13) have been affirmed in cases reviewed by the Commission. See Secretary of Labor v. Kehm Construction Company, Inc. (OSAHRC Docket Nos. 1209 and 1438), and Secretary of Labor v. Brisk Waterproofing Company, Inc., (OSAHRC Docket No. 1046). The later case is especially interesting since the Commission reversed a decision that Respondent had violated General Duty Clause and found the Respondent in violation of 29 CFR 1926.451(a)(13). A $600.00 penalty was assessed for the violation.

In its brief Respondent raises a number of objections to the language of the regulation, which provides:

1926.451 Scaffolding.

(a) General requirements. (1) Scaffolds shall be erected in accordance with requirements of this section.

(13) An access ladder or equivalent safe access shall be provided.

Among other grounds it is urged that one must resort to other sections of the regulations in order to ascertain the meaning of ‘access ladder’ and that the phrase ‘equivalent safe access’ provides no guide for the Respondent to ascertain the proscribed conduct.

We are not persuaded that either ‘ladder’ or ‘equivalent’ are such ambiguous terms that Respondent would not be guided by applying the ordinary definitions. Webster’s Third New International Dictionary (1965) defines ‘ladder’ as follows:

‘1. a. usu. portable structure for use of climbing up or down that consists commonly of two parallel side pieces of wood, metal, or rope, joined at short intervals by a series of cross pieces that serve as rest for the feet.’

The same dictionary also defines ‘equivalent’ as ‘corresponding or virtually identical, esp. in effect or function.’

Respondent argues that the scaffolding structure itself constituted a ‘fixed’ ladder within the meaning of regulation 29 CFR 1926.450(a)(5) and notes the reference to National Standards Institute, A14.3–1956, Safety Code for Fixed Ladders, in that regulation.

We note that the Cited ANSI publication contains the following definitions of ‘equivalent’ and ‘ladder’:

1.6 Equivalent. The word ‘equivalent’ in this code shall be interpreted to mean alternative designs or features which will provide equal degree of safety.

2.1 Ladder. A ladder is an appliance usually consisting of two side rails joined at regular intervals by cross pieces called steps, runs, or cleats, on which a person may step in ascending or descending.

The structure used by Respondent’s employees as a means of access did not have side rails joined at short and regular intervals by its cross pieces. It constituted a climbing hazard, a fact evidently recognized by the manufacturer who fabricated a specific ladder for this type of scaffolding. A wide range of penalties has been assessed in other cases for violation of the cited regulation, from zero to $600.00. The $40.00 penalty proposed by the Complainant appears appropriate in view of the hazard of a fall from heights up to 19 1/2 feet and should be affirmed.

In affirming the Citation and proposed penalty we are mindful of Respondent’s argument that Chapter X(c)(1) of the Compliance Operations Manual, a publication promulgated by the Secretary as a guideline for implementing the Act, is said to bar Compliance Officers for citing employers for violation not actually observed. This statement is not accurate. The Compliance Manual section cited makes actual observance a general rule subject to exceptions. In the instant case employee exposure was admitted, and the Compliance Officer would have shirked his duty had he elected to ignore the violation.

FINDINGS OF FACT

1. The Respondent, Ringland-Johnson, Inc., a corporation with its principal office at 1523 S. Bluff Blvd., Clinton, Iowa, was at all times material hereto engaged in the business of general contracting.

2. On April 12, 1973 a number of Respondent’s employees were engaged in the construction of three circular concrete bins at a worksite at 1250 Channel Parkway, Clinton, Iowa. On said date Uldis Sid Levalds, OSHA Compliance Officer, conducted an inspection of the premises.

3. As a result of the aforesaid inspection Respondent was issued one Citation for Other Than Serious Violation alleging violations of the safety standards codified as 29 CFR 1926.451(a)(13) and 29 CFR 1926.500(d)(1) and one Citation for Serious Violation alleging a violation of Section 5(a)(1) of the Act.

4. The evidence with respect to the alleged violations revealed:

(a) On April 12, 1973 Respondent’s employees were using variously spaced horizontal support rungs on the ends of tubular, welded metal scaffold frames as a means of obtaining access to their work areas. The spacing between the ground and the first support is 27 inches; between the first support and the second, 22 inches; and between the second support and the third, 17 inches.

(b) The evidence failed to establish any violation of safety regulation 29 CFR 1926.500(d)(1), the Compliance Officer testifying that the standard reference appearing on the Citation and the Complaint was inadvertent and incorrect. Complainant moved to amend the Citation and Complaint by substituting a reference to regulation 29 CFR 1926.500(d)(2) during the hearing, which Motion was opposed by Respondent. The undersigned Judge took the Motion under advisement.

(c) On April 12, 1973 five of Respondent’s employees were working on a grid work platform consisting of pieces of lumber laid on top of tubular welded metal scaffold frames at a height of 19 feet 6 inches. There were numerous openings in the platform, 30 to 40 inches in size, through which a man could fall. At the conclusion of Complainant’s case Respondent moved to dismiss the Citation for Serious Violation on the ground that a Citation for violation of Section 5(a)(1) of the Act, the general duty clause, was inappropriate because a specific safety regulation was applicable to the conditions. The undersigned Judge took the Motion under advisement.

CONCLUSIONS OF LAW

1. At all times material hereto, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3 (5) of the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein.

2. On April 12, 1973 Respondent violated Section 5(a)(2) of the Act by its non-compliance with safety regulation 29 CFR 1926.451(a)(13) as described in Item 1 of the Citation for Other Than Serious Violation. A penalty of $40.00 is appropriate for said violation.

3. On April 12, 1973 Respondent was not in violation of safety regulation 29 CFR 1926.500(d)(1) as alleged in Item 2 of the Citation for Other than Serious Violation. The Motion to Amend Item 2 was not timely made and should be denied.

4. On April 12, 1973 the safety regulation codified as 29 CFR 1926.500(b)(1) was applicable to the conditions described in the Citation for Serious Violation. The Motion to Vacate and Dismiss the Citation for Serious Violation should be granted, and Complainant’s request for leave to amend said Citation should be denied.

ORDER

Based on the above Findings of Fact and Conclusions of Law it is ORDERED that:

1. Item 1 of the Citation for Other Than Serious Violation issued Respondent May 2, 1973 and the penalty proposed thereon are hereby affirmed.

2. Item 2 of the Citation for Other Than Serious Violation issued Respondent May 2, 1973 and the penalty proposed thereon are hereby vacated.

3. The Citation for Serious Violation issued Respondent May 2, 1973 alleging a violation of Section 5(a)(1) of the Act, and the penalty proposed thereon, are hereby vacated.

Alan M. Wienman

Judge, OSAHRC

DATE: FEB 27, 1974

[1] As a threshold matter, Respondent raised at the hearing and argues on review that the citations are void since they lacked the particularity required by section 9(a) of the Act in that they failed to state the date of the inspection. Judge Weinman, although finding that the citations did lack particularity, rejected Respondent’s argument on the basis that it was not timely raised. We hold that in this case the failure of the Secretary to specify an inspection date in the citations did not render the citations fatally defective. We have stated that the purpose of the particularity requirement is to insure that Respondent is placed on notice regarding the alleged violation and that we can look at some circumstances surrounding the citation in order to determine whether notice has been given. B. W. Harrison Lumber Co., Inc., No. 2200 (April 14, 1976). Here, Respondent had notice of the date of the subject inspection since its representative accompanied the compliance officer on the inspection and the evidence does not indicate that more than one inspection occurred during the same period of time. Further, the complaint included the date of inspection, thereby formally putting Respondent on notice of the date of inspection, prior to the hearing.

[4] In its posthearing brief, the Secretary, while reasserting that section 5(a)(1) of the Act applies to the situation, moved in the alternative for leave to amend its citation and complaint to allege a violation of section 5(a)(2) of the Act if a specific standard were found to be applicable. Judge Weinman denied the motion based on a lack of consent to the amendment by the Respondent. Because we find that the cited provision of the Act was applicable, we need not reach the issue of whether leave to amend should have been granted.

[5] Brisk Waterproofing Company, Inc., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCH OSHD para. 16,345 (1973).

[6] On review Respondent also argues that 29 C.F.R. 1926.500(b)(8), 1910.28(a)(8)(1) and 1910.28(a)(8)(2) apply to the grid or platform involved here. As discussed we do not find Subpart M of Part 1926 applicable. The 1910.28(a) standards are general industry standards for scaffolds, and what we have said above concerning tight planking for tubular welded scaffolds used in the construction industry also applies to the general industry standards. See 29 C.F.R. 1910.28(d)(10) and 28(a)(9). In any event 28(a)(8) is clearly inapplicable since it deals with the stress grade of lumber used in scaffolding.

[8] The standard at 1926.500(d)(1) requires in pertinent part that ‘every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent. . .’ The standard at 1926.500(d)(2) requires in pertinent part that ‘runways shall be guarded by a standard railing, or the equivalent. . . ’

[9] Although the job superintendent contradicted this statement at the hearing by testifying that he did not recall any employee using the runway, Judge Weinman questioned the superintendent’s testimony at the hearing as generally incredible. We will not disturb a Judge’s credibility determination. Northeast Stevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para. 19,001 (1974).

[10] The standard at 1926.451(a)(13) requires that, for scaffolds, ‘an access ladder or equivalent safe access shall be provided.’

[11] On review, Respondent also reasserts its argument that the cited standard is unenforceably vague because of the lack of guidelines regarding the requirements for a ladder or its equivalent. We reject this argument for the reasons assigned by Judge Weinman: that, considering common and industry understanding, the words ‘ladder’ and ‘equivalent’ are not ambiguous and fairly apprise employers of the conduct required of them.

[12] Judge Wienman decided this case in accordance with the mandate of 29 U.S.C. § 659(c) which incorporates by reference the Administrative Procedure Act (APA) provisions relating to administrative adjudications, 5 U.S.C. §§ 554–557. The APA specifies that, after a hearing has been held, the presiding hearing officer ‘shall initially decide the case . . . that decision then becomes the decision of the agency without further proceedings unless there is . . . review on motion of the agency within time provided by rule,’ 5 U.S.C. § 557, emphasis supplied. Messrs. Barnako and Cleary, however, take a side-shot at the Judge’s decision by referring to it in a demeaning and wholly out-of-place manner. They refer, for example, to ‘Judge Wienman’s recommendation’ and, at other places, use such phrases as ‘Judge Wienman would vacate’ and ‘he would affirm.’ Never once do they accord the Judge the courtesy of labelling his disposition by its proper legal name: decision. I completely disassociate myself from their erroneous and patronizing references to Judge Wienman’s decision and deplore the inclusion in decisions of this Commission of such shabby treatment of a Judge who—as Messrs. Barnako and Cleary well know—cannot respond.

[13] While I agree with the Judge’s vacation of the citation for serious violation, I do not join in his determination that respondent should have been cited under the occupational safety and health standard set forth at 29 C.F.R. § 1926.500(b)(1) in lieu of 29 U.S.C. § 654(a)(1), the so-called general duty clause.

[14] Furthermore, I do not agree with my colleagues’ views regarding the amendment of citations. For an expression of my view on this matter, see Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

[15] (e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authority by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

[16] How does the employer ascertain the conditions existing at a time unknown in order to determine whether to contest the citation? Worse yet, assume two separate inspections of a jobsite, one of which was conducted without an employer’s knowledge and resulted in the issuance of a citation. The employer would be positively misled as to the operative facts. This sort of speculation is not entirely fanciful in cases of large construction projects involving numerous subcontractors with overlapping work areas.