“SECRETARY OF LABOR,Complainant,v.CECO CORPORATION,Respondent.Docket No. 90-1051_ORDER_On October 1, 1991, Respondent filed a Notice of Withdrawal andSubstitution of Counsel of Record. Respondent states that Michael F.Swick, of the firm of Drew, Eckl, & Farnham, has withdrawn as counsel ofrecord. Respondent also requests that Benton J. Mathis, Jr., of thesame firm, be substituted as counsel of record.The Commission has considered Respondent’s Notice of Withdrawal andSubstitution of Counsel of Record. The Commission treats the notice asa Motion for Withdrawal of Counsel under Rule 23(b) and grants themotion. Respondent’s request that Benton J. Mathis, Jr. be substitutedas counsel of record is treated as an entry of appearance underCommission Rule 23(a)(3).Also pending in this case is the Stipulation and Settlement Agreementwhich the parties have filed. Having reviewed the record, and basedupon the representations appearing in the Stipulation and SettlementAgreement, we conclude that this case raises no matters warrantingfurther review by the Commission. The terms of the Stipulation andSettlement Agreement do not appear to be contrary to the OccupationalSafety and Health Act and are in compliance with the Commission’s Rulesof Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. _See_ 29 U.S.C. ?? 659(c), 660(a) and(b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated November 1, 1991————————————————————————Secretary of Labor,Complainant,v.The CECO Corp.,Respondent.OSHRC No. 90-1051_STIPULATION AND SETTLEMENTAGREEMENT_I.The parties have reached agreement on a full and complete settlement anddisposition of Serious Citation No. 1 Item 1 of this case, which iscurrently pending before the Commission.II.It is stipulated and agreed between the Complainant, Secretary of Labor,and the Respondent, The CECO Corp. (CECO), that:1. Complainant withdraws serious citation No. 1 Item 1.2. There is no authorized employee representative in this case.3. Each party agrees to bear its own fees, costs and expenses incurredby such party in connection with all stages of this proceeding.III.Respondent posted this Stipulation and Settlement Agreement inaccordance with Commission Rules 2200.7 and 2200.100 on October 14th, 1991.DAVID S. FORTNEYDeputy Solicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial Litigation Noah Connell (Date)Attorney for the Complainant Secretary of Labor Benton J. Mathis, Jr.Attorney for the RespondentThe CECO Corp.CERTIFICATE OF POSTINGA copy of the attached Stipulation and Settlement Agreement was postedat The CECO Corp. on October 14, 1991, in accordance with ReviewCommission Rules 7 and 100, and remained posted for a period of ten days. The Pictorial exhibit refererred to is not available in this format. Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:202-606-5050; E-MAIL: [email protected] ————————————————————————SECRETARY OF LABOR,Complainant,v.THE CECO CORPORATION,Respondent.OSHRC Docket No. 90-1051APPEARANCES:Cynthia Welch Brown, Esquire, Office of theSolicitor, U. S. Department of Labor, Birmingham,Alabama, on behalf of complainantMichael F. Swick, Esquire, Atlanta, Georgia, onbehalf of respondent_DECISION AND ORDER_SALYERS, Judge: The Ceco Corporation is a concrete masonry contractorwhose principal place of business is located in Birmingham, Alabama. OnFebruary 14, 1990, Occupational Safety and Health Administration(\”OSHA\”) Compliance Officer Michael Leek inspected a worksite at 809University Boulevard in Tuscaloosa, Alabama, where a four-story parkinggarage was under construction. Ceco was performing the form work on theproject (Tr. 7). As a result of the inspection, Ceco was issued acitation on February 26, 1990.The citation alleged serious violations of the following standards:section 5(a)(1) for failure to furnish employees with a place ofemployment free from recognized hazards likely to cause death or seriousphysical harm to its employees by permitting employees to ride the tinesof a forklift up to an 11-foot high scaffold (item 1); 29 C.F.R. ?1926.451(a)(4) for failure to install midrails on the sides of awrecking scaffold (item 2a); 29 C.F.R. ? 1926.451(a)(15) for failure tosecurely and rigidly brace the legs of the scaffold to prevent swayingor displacement (item 2b); 29 C.F.R. ? 1926.451(a)(8) for failure torepair or replace damaged or weakened scaffold parts (item 3); and 29C.F.R. ? 1926.550(a)(9) for failure to barricade the swing radius of therotating superstructure of a crane. Ceco filed a notice of contestcontesting all of the alleged violations on March 19, 1990. TheSecretary filed a complaint against Ceco on May 21, 1990, to which Cecofiled an answer on June 8, 1990.Ceco agrees with the Secretary that it is engaged in a businessaffecting commerce within the meaning of section 3(5) of theOccupational Safety and Health Act of 1970 (\”Act\”) and that the ReviewCommission has jurisdiction of this action (Ceco’s answer, pg. 3). Cecoasserts a number of affirmative defenses to the Secretary’s charges,including the unpreventable employee misconduct defense and the greaterhazard defense._Item 1__Section 5(a)(1)_Section 5(a)(1) of the Act provides:(a) Each employer–(1) shall furnish to each of his employeesemployment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or seriousphysical harm to his employees.To establish a violation of section 5(a)(1), the Secretary must prove bya preponderance of the evidence (1) that the employer failed to renderits workplace free from a hazard which was (2) recognized, (3) theoccurrence of an incident was reasonably foreseeable, and (4) the likelyconsequence in the event of an accident was death or serious physicalharm to its employees. _Western_ _Massachusetts Electric Co_., 81OSAHRC 63\/B13, 9 BNA OSHC 1940, 1981 CCH OSHD ? 25,470 (No. 76-1174,1981); _Bomac_ _Drilling, Division of TRG Drilling Corp_., 81 OSAHRC45\/A2, 9 BNA OSHC 1681, 1981 CCH OSHD ? 25,363 (No. 76-450, 1981);_Beaird-Poulan, A division of Emerson Electric Co._, 79 OSAHRC 21\/D11, 7BNA OSHC 1225, 1979 CCH OSHD ? 23,493 (No. 12600, 1979). The Secretarymust also show that there was a feasible means of abating the hazard. _National Realty_ _and Construction Co. v. OSHRC_, 489 F.2d 1257 (D.C.Cir. 1973); _Cormier Well Service_, 76 OSAHRC 45\/B12, 4 BNA OSHC 1085,1975-76 CCH OSHD ? 20,583 (No. 8123, 1976).On the day of the inspection, two of Ceco’s employees were strippingform work from the overhead level on the bottom floor of the parkinggarage. To do this, they were working from a wrecking (also referred toas a \”stripping\”) scaffold platform (Tr. 11, 13). The scaffold was 11feet high above a concrete surface (Tr. 17). No ladder was in sight(Tr. 20). When Leek asked the two employees how they gained access tothe scaffold, they informed him they rode the tines of a forklift to thescaffold (Tr. 13). A fall from the height of 11 feet onto a concretefloor below could result in fractures, broken bones or other seriousinjury (Tr. 21-22).Ceco’s foreman, Melvin Turner, was on the site that day, a couple offloors above the bottom floor. Although he did not observe theemployees riding the tines of the forklift to the scaffold on the day ofthe inspection, Turner had observed an employee do so at the beginningof the project (Tr. 191).A feasible method of abatement was to provide a ladder for access to thescaffold. A ladder was present on the premises and was produced withina couple of minutes of Leek’s pointing out the need for one (Tr. 16, 18,21). Another feasible method of abatement is to attach a basket withrails to the tines of the forklift (Tr. 18).Ceco argues that the Secretary’s citing of section 5(a)(1), the Act’sgeneral duty clause, is inappropriate because specific standards apply. An applicable standard preempts application of the general duty clause. _Armstrong Cork Co._, 80 OSAHRC 16\/D4, 8 BNA OSHC 1070, 1980 CCH OSHD ?24,273 (No. 76-2777, 1980); _Isseks Brothers, Inc_., 76 OSAHRC 8\/B9, 3BNA OSHC 1964, 1975-76 CCH OSHD ? 20,361 (No. 6415, 1976); _SunShipbuilding and Drydock Co._, 73 OSAHRC 44\/A9, 1 BNA OSHC 1381, 1973-74CCH OSHD ? 16,725 (No. 161, 1973); _Mississippi Power & Light Co_., 79OSAHRC 109\/D12, 7 BNA OSHC 2036, 1980 CCH OSHD ? 24,146 (No. 76-2044, 1979).Ceco contends that two specific standards applied to the situation: ?1926.450(a)(1), which provides:Except where either permanent or temporary stairways or suitable rampsor runways are provided, ladders described in this subpart shall be usedto give safe access to all elevations.The second standard, ? 1926.451(a)(13), provides:An access ladder or equivalent safe access shall be provided.These two standards relate to gaining safe access to scaffolds by theuse of ladders or \”equivalent safe access.\” The hazard they address isfalling from a scaffold. The citation for the violation of ? 5(a)(1)charges that Ceco’s employees were exposed to \”[t]he hazard of fallswhere employees stood on the forks of the . . . forklift to gain accessto the 11-foot high wrecking scaffold.\” In order for a specificstandard to preempt the general duty clause, the standard must beaddressed to the particular hazard for which the employer has been citedunder the general duty clause. _Armstrong Cork Co., supra_; _UnitedStates Pipe and Foundry Co_., 78 OSAHRC 8\/D6, 6 BNA OSHC 1332, 1978 CCHOSHD ? 22,514 (No. 11739, 1978). A section 5(a)(1) allegation will notbe vacated where the hazards presented are interrelated and not entirelycovered by any single standard. _Ted Wilkerson. Inc., supra;__Crescent Erection Co._, 76 OSAHRC 93\/A2, 5 BNA OSHC 1711, 1976-77 CCHOSHD ? 20,955 (No. 2159, 1977).The standards that Ceco cites as preempting the ? 5(a)(1) charge do notaddress the hazard of riding the tines of a forklift. The fact that theemployees were riding the tines to get to the scaffold is interrelatedwith ? 1926.450(a)(1) and ? 1926.451(a)(13), but it is not entirelycovered by them. The general duty clause in this case is not,therefore, preempted by more specific standards.Ceco also argues that any violation of ? 5(a)(1) was the result ofunpreventable employee misconduct. In order to establish this defense,the employer must show that the action of its employee represented adeparture from a work rule that the employer had uniformly andeffectively communicated and enforced. _H. B. Zachry_, 80 OSAHRC 9\/D8,7 BNA OSHC 2202, 1980 CCH OSHD ? 24,196 (No. 76-1393, 1980), _aff’d_,638 F.2d 812 (5th Cir. 1981).\”Specific safety instructions and work rules concerning particularhazards that may be encountered on the job are the essential foundationsof an adequate safety program.\” _Paul Betty d\/b\/a Betty Brothers_, 81OSAHRC 18\/B11, 9 BNA OSHC 1379, 1981 CCH OSHD ? 25,219, p. 31,151 (No.76-4271, 1981). Ceco claims that it had written safety rules whichaddressed the prohibited riding of forklift tines to gain access toscaffolds. Ceco offered exhibits R-2 and R-7, neither of which containrules specifically addressed to this hazard. Ceco held regular weeklyjobsite meetings where safety rules were discussed (Tr. 90-91, 102, 155,178-179). Riding the tines of a forklift was not specificallydiscussed. \”An employer cannot fail to properly train and superviseits employees and then hide behind its lack of knowledge concerningdangerous working conditions.\” _Id._Ceco also contends that it had a graduated disciplinary system which itenforced against the employees who rode the tines. While the recordreflects these employees were issued written reprimands (Exs. R-3, R-4)after the event was called to respondent’s attention, there is noevidence that similar action had occurred prior to the inspection. Moreover, as the Secretary points out, these employees also violated awritten work rule requiring them to tie off while on the scaffold andwere not disciplined for this violation. Roy Creel, the field managerfor the Birmingham District, stated that he would have reprimanded thetwo for not tying off had he been there (Tr. 160). Charles McEachern,manager of safety and labor relations, stated that had he been presentat the site, he would have fired the two employees who rode the tines,and would have reprimanded the forklift operator who was not disciplinedat all (Tr. 183).The record reflects that Ceco’s disciplinary program was appliedinconsistently and was ineffectual to enforce obedience to its rules.Furthermore, Ceco had not communicated to its employees that riding thetines of the forklift was prohibited. Ceco was in violation of section5(a)(1)._Item 2__29 C.F.R. ?? 1926.451(a)(4) and (a)(15)_Section 1926.451(a)(4) provides:(4) Guardrails and toeboards shall be installed on all open sides andends of platforms more than 10 feet above the ground or floor, exceptneedle beam scaffolds and floats (see paragraphs (p) and (w) of thissection). Scaffolds 4 feet to 10 feet in height, having a minimumhorizontal dimension in either direction of less than 45 inches, shallhave standard guardrails installed on all open sides and ends of theplatform.Section 1926.451(a)(15) provides:(15) The poles, legs, or uprights of scaffolds shall be plumb, andsecurely and rigidly braced to prevent swaying and displacement.Items 2a and 2b were grouped together because they both relate to thewrecking scaffold. The employees were standing on the scaffold toremove formwork from the level overhead. They were removing four byeight sheets of plywood and beam sides and handing them down toemployees on the floor. It is undisputed that the scaffold did nothave a midrail or a toeboard (Exs. C-1, C-2, C-3; Tr. 25-27).The scaffold was 16 feet by 16 feet, supported by four Ellis shores. The scaffold platform extended four feet beyond the supports (Exs. C-3,C-4; Tr. 27- 28). The scaffold had one by four cross bracing and wasset in a farm wagon mounted on rubber wheels (Tr. 28, 33).Ceco claimed that it had removed the midrail from the scaffold becauseit made it easier to pass down the plywood that the employees wereremoving (Tr. 113). Dewey Allen, Ceco’s project manager, testified thatremoving the plywood with the midrails in place was not impossible butthat \”it would be a whole lot easier without the midrail\” (Tr. 138).The plywood was handed down from the scaffold on only one side at atime. All four sides of the scaffold platform were without midrails(Exs. C-1, C-2). There is no justification for not guarding at leastthree sides of the platform. Ceco decided not to use midrails becauseit found it inconvenient to do so. This is not an excuse fordisregarding the requirements of the standards.Ceco’s employees worked right at the edge of the platform when loweringthe plywood onto the floor (Tr. 31, 41, 139). They were not tied off,even though Ceco had a written safety rule stating they were to be tiedoff when working above six feet with no midrail (Tr. 132, 144, 155). Employees could have fallen through the gap created by the absence ofthe midrail (Tr. 27). Ceco was in violation of ? 1926.451(a)(4).Leek observed the scaffold swaying 8 to 12 inches (Tr. 27). Dewey Allenattributed the swaying of the platform to the \”sponginess\” of theunder-inflated tires (Tr. 112). He also stated that \”a certain amountof hang-over\” of the platform over the base contributed to the swaying(Tr. 133). This court fully credits Leek’s observations and conclusionthat the conditions of the scaffold created a dangerous potential forsway. The hazard presented by the swaying of the scaffold was fallsfrom a height of 11 feet onto a concrete floor (Tr. 36). Ceco was inviolation of ? 1926.451(a)(15)._Item 3__29 C.F.R. ? 1926.451(a)(8) _Section 1926.451(a)(8) provides:(8) Any scaffold including accessories such as braces, brackets,trusses, screw legs, ladders, etc., damaged or weakened from any causeshall be immediately repaired or replaced.This court also fully credits Leek’s testimony that the scaffold wasleaning, damaged and weakened. Nails were pulling out of brackets onthe scaffold (Exs. C-6, C-7; Tr. 45-47). The top rail was not adequateto protect employees in the event they were to fall against it. A fallfrom the scaffold would most likely result in fractures at a minimum(Tr. 47-48). Ceco was in violation of ? 1926.451(a)(8).Ceco lists seven grounds why the three items relating to the wreckingscaffold should be vacated (Ceco’s Brief, pgs. 9-10). All of thesegrounds are without merit for the following reasons:(a) _There is no proof the wrecking scaffold is in excess of 10 feet_. This is a puzzling assertion. Leek testified without contradiction thatthe scaffold platform was measured at 11 feet. Ceco bases its assertionon this portion of Leek’s testimony: \”It was measured at eleven feet andverified by–by the person that measured it and—and I’m pretty sure,as I recall, it was Mr. Turner\” (Tr. 17). Leek’s wording in no waydetracts from the credibility of his statement. Nowhere in the recordis the 11-foot measurement disputed.(b) _Leek did not get up on the scaffold or test the guardrail_. Cecoerroneously believes that this undermines Leek’s opinion regarding thestate of the scaffold. On the contrary, it would have beenirresponsible for Leek to have gotten up on the scaffold after observingits lack of midrails, and damaged condition. OSHA expects its employeesto be as concerned with their own safety as they are with the safety ofthe working men and women they seek to protect.(c) _Four Ceco employees all testified it was built per design, and theywould work from it_. Ceco here refers to Melvin Turner, Dewey Allen,Roy Creek, and Charles McEachern, all of whom are supervisorypersonnel. The fact that these employees said they would work from thescaffold is not probative evidence of a safe scaffold. Leek’s testimonyregarding the condition of the scaffold is more credible than theself-serving statements of Ceco’s supervisors.(d) _The scaffold was at 11 feet for only a brief period of time._ Thisis irrelevant as to whether violations of the standard were committed. The Secretary established that two Ceco employees were exposed to an11-foot fall.(e) _A midrail would stop all operations_. This statement is notsupported by the record. As previously mentioned, the use of a midrailat the point where the boards were passed down to the floor would notprevent this operator but merely make it less convenient to the crew. Moreover, no plausible reason was given why all four midrails were missing.(f) _Ceco has safety rules dealing with falls and poorly constructedscaffolds_. Any rules Ceco had relating to the violations at issue werenot enforced as evidenced by the condition of the scaffold in question._Item 4__29 C.F.R. ? 1926.550(a)(9)_Section 1926.550(a)(9) provides:(9) Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.Leek observed a crane located outside of the opening where Ceco’semployees, as well as the employees of other contractors, entered andexited the work site. The crane was operating at the time Leek observedit (Tr. 50-52). Leek observed one person, whom he could not identify,go past the crane (Tr. 60-61). The crane did not operate in themornings or the evenings when Ceco’s employees were coming to andleaving from work. The employees generally did not leave the work sitefor lunch or other breaks (Tr. 189-190). The crane was not stationarybut moved up and down a path (Tr. 53).The Secretary has failed to establish that any Ceco employees wereexposed to the swing radius of the crane’s superstructure. Ceco was notin violation of ? 1926.550(a)(9)._Classification of Penalties_The Secretary contends that the violations of ?? 5(a)(1),1926.451(a)(4), 1926.451(a)(15), and 1926.451(a)(8) were serious withinthe meaning of section 17(k) of the Act. The definition of a seriousviolation contains two elements: (1) hazard and (2) knowledge. A hazardexists where there is substantial probability that death or seriousphysical harm could result from the condition in question. The Secretaryneed not prove that an accident is probable, it is sufficient if anaccident is possible, and its probable result would be serious injury ordeath. _Brown & Root, Inc. Power Plant Division_, 80 OSAHRC 17\/B8, 8BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980).The Secretary must also prove that the employer knew or with theexercise of reasonable diligence should have known of the existence ofthe violation. The knowledge element is directed to the physicalconditions which constitute a violation. _Southwestern_ _Acoustics &Specialty, Inc._, 77 OSAHRC 141\/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ?21,582 d(No. 12174, 1977). It is difficult for an employer to prevailon the defense that he had no knowledge of the violation since he has anobligation to inspect the work area, to anticipate hazards to whichemployees may be exposed, and to take measures to prevent theiroccurrence. _Frank_ _Swidzinski Co._, 81 OSAHRC 4\/E14, 9 BNA OSHC 1230,1981 CCH OSHD ? 25,129 (No. 76-4627, 1981).The two employees who rode the tines of the forklift to gain access tothe scaffold, and who then worked on the unsafe scaffold, were exposedto falls of 11 feet onto a concrete floor. At the least, the employeescould expect to suffer fractures. The Secretary has established seriousviolations of the cited standards._Penalties_The Commission is the final arbiter of penalties in all contestedcases. _Secretary v. OSHRC and Interstate Glass Co._, 487 F.2d 438 (8thCir. 1973). Under 17(j) of the Act, the Commission is required to findand give \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factorto be considered. _Nacirema-Operating Co_., 72 OSAHRC 1\/B10, 1 BNA OSHC1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Upon due consideration of the penalty factors, it is determined that theSecretary’s proposed penalties are appropriate. Ceco is assessed apenalty of $450.00 for item 1, a total penalty of $450.00 for items 2aand 2b, and a penalty of $450.00 for item 3.The foregoing decision constitutes the findings of facts and conclusionsof law in accordance with Rule 52(a) of the Federal Rules of CivilProcedure._ORDER_Based upon the foregoing decision, it is hereby ORDERED:1. That item 1 of Citation No. 1 is affirmed and a penalty of $450.00 isassessed.2. That item 2a of Citation No. 1 is affirmed.3. That item 2b of Citation No. 1 is affirmed and a total penalty of$450.00 for item 2 is assessed.4. That item 3 of Citation No. 1 is affirmed and a penalty of $450.00 isassessed.5. That item 4 of Citation No. 1 is vacated.EDWIN G. SALYERSJudgeDate: February 19, 1991″