UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

January 26, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

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

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

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

It is ORDERED that the decision be affirmed.

DATED: January 26, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

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

  I would affirm the nonserious citation for the reasons stated in Judge Brady’s decision, which is attached hereto as Appendix A, however, the serious citation should be vacated because the evidence establishes that respondent, a steel erection subcontractor, neither created nor caused the alleged violative condition or was otherwise responsible for it. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion); Secretary v. Anning Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss. Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

June 28, 1976

DECISION AND ORDER

APPEARANCES

Robert H. Buckler, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Mr. Robert C. Hackman, Jr., East Point, Georgia, on behalf of respondent.

STATEMENT OF THE CASE

BRADY, Judge:

  This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et. seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest two citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citations, which were issued August 4, 1975, allege that as a result of an inspection of the respondent’s workplace at 2170 Cheshire Bridge Road, Atlanta, Georgia, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. A notification of proposed penalty was issued with the citations but was not at issue in this proceeding.

  On July 18, 1975, respondent was a sub-contractor performing steel erection in the construction of a multi-story apartment building at 2170 Cheshire Bridge Road, Atlanta, Georgia. Complainant alleges that respondent failed to provide an access ladder or equivalent safe access to scaffolding used for construction of the building in violation of the standard at 29 C.F.R. § 1926.451(a)(13). Also, it is alleged that respondent failed to install guardrails on the scaffold at the second floor level in violation of the standard at 29 C.F.R. § 1926.451(x)(5)(v).

  The evidence is clear that respondent’s employees climbed from work to a scaffold without using ladders, and the scaffold was not provided with guardrails (Tr. 16, Exh. C–1).

  Respondent does not dispute that there were no ladders or guardrails present, but it denies any responsibility for providing them at the multi-employer worksite.

  Mr. John Painter, president of Tower Crane Erection and Dismantling Company, indicated that respondent’s work at the construction site was of a very specialized nature involving only the tying and placing of steel bars in the poured concrete construction. He stated that respondent was not involved in form work, nor was it required by contract to furnish scaffolding, which was also governed by union regulations (Tr. 36, 37).

  Respondent’s foreman testified that he was one of the employees depicted in complainant’s exhibit number one. He stated that they had climbed the form work without the use of ladders to the scaffold which contained no guardrails, and the employees were not equipped with safety belts (Tr. 32). The form work was provided by carpenters who had set up the scaffolds (Tr. 41).

  The inspecting officer testified that respondent had violated the standard relating to scaffolding in that employees were on the scaffold and exposed to falling without the use of protective devices (Tr. 15).

  In determining whether the respondent violated the standards alleged, it is noted that the basic purpose of the Occupational Safety and Health Act of 1970, is ‘. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .’ Section 5(a)(2) thereof requires each employer to comply with the occupational safety and health standards promulgated under the Act.

  The evidence establishes a violation of the standard at 29 C.F.R. § 1926.451(a)(13), in that employees were not provided with access ladders or equivalent safe access to the scaffolding where they were to perform their duties. Respondent admits that no ladders were provided, and that the employees climbed from work to reach the position where they were working. It is therefore held that respondent has violated the standard as alleged.

  It must be held on the evidence of record that respondent has also violated the standard at 29 C.F.R. § 1926.451(x)(5)(v). Section 451 sets forth the general requirements for the erection of scaffolds while the sub-section specifically applies to form scaffolds.

  The evidence shows that the respondent was not responsible for erecting the scaffold at the jobsite, which did not meet the requirements of the standard. The determining factor is that respondent was in control of the improperly protected scaffold, thus exposing its employees to hazardous working conditions.

  The employer, in this case, was not required to use scaffolding in performing the specialized work involved. However, with the decision to use the available scaffolding to accomplish his purpose at the worksite, he was duty-bound to conform to the applicable safety standards for the protection of his employees and cannot disclaim such responsibility. It is therefore incumbent upon respondent to provide safe access to the scaffold and the proper guarding thereof. This view is consistent with the Commission’s statement that ‘the intent of the Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered employees.’ Secretary v. Hawkins Construction Company, 8 OSHRC 569, 570 (1974). Therefore, the Secretary has established that the standards were violated as alleged.

FINDINGS OF FACT

  1. Tower Crane Erection and Dismantling Company, Inc. is a corporation doing business, at all times pertinent hereto, at 2170 Cheshire Bridge Road, Atlanta, Georgia, where it was engaged in the business of structural steel erection.

  2. On July 18, 1975, respondent was engaged in tying and placing steel bars in poured concrete approximately 16 feet from the ground at the aforementioned multi-employer worksite.

  3. On July 18, 1975, authorized representatives of the Secretary conducted an inspection of the respondent’s worksite. As a result of the inspection on August 4, 1975, two citations were issued with a notification of proposed penalty.

  4. Respondent’s employees climbed from work to reach a scaffold in order to perform their duties as no ladders or equivalent access were provided. The form type scaffold was not provided with guardrails.

  5. The respondent was not responsible for the erection of the scaffolds or providing ladders for access to the scaffolds at the worksite.

  6. Respondent is directly responsible for maintaining safe working conditions for its employees.

CONCLUSIONS OF LAW

  1. Tower Crane Erection and Dismantling Company, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

  2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

  3. Respondent was in violation of the standard at 29 C.F.R. § 1926.451(x)(5)(v) on July 18, 1975, as charged the citation.

  4. Respondent was in violation of the standard at 29 C.F.R. § 1926.451(a)(13) on July 18, 1975, as charged in the citation.

  5. Respondent failed to comply with the regulations set forth above, thereby, violating section 5(a)(2) of the Act, and a total penalty in the amount of $525 is assessed.

  On the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

  1. That the citations and proposed penalties for violation of the standards at 29 C.F.R. § 1926.451(a)(13) and 29 C.F.R. § 1926.451(x)(5)(v), are affirmed.

  2. A total penalty in the amount of $525 is assessed.

Dated this 28th day of June, 1976.

PAUL L. BRADY

Judge