“\ufeff\t\tMETRO BUILDING SERVICES, INC. OSHRC DOCKET NO. 76\u20130807\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t76\u20130807\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMETRO BUILDING SERVICES, INC.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMay 25, 1977\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBefore BARNAKO, Chairman; and CLEARY, Commissioner.\t\t\t\t\t\t\t\t\t\tThis case is before the Commission pursuant to a\t\t\t\t\t\tsua\t\t\t\t\t\tsponte order for review. The parties have filed no objections to the Administrative Law Judge\u2019s 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\u2019s decision.\t\t\t\t\t\t\t\t\t\tIn these circumstances, the Commission declines to pass upon, modify or change the Judge\u2019s decision in the absence of compelling public interest.\t\t\t\t\t\tAbbott\u2014Sommer, Inc., 3 BNA OSHC 2032, 1975\u201376 CCH OSHD para. 20,428 (No. 9507, 1976);\t\t\t\t\t\tCrane Co., 4 BNA OSHC 1015, 1975\u201376 CCH OSHD para. 20,508 (No. 3336, 1976); see also\t\t\t\t\t\tKeystone Roofing Co., Inc.,\t\t\t\t\t\tv. 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.\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision.\t\t\t\t\t\tLeone Constr. Co.,\t\t\t\t\t\t3 BNA OSHC 1979, 1975\u201376 CCH OSHD para. 20,387 (No. 4090, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is ORDERED that the decision be affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDATED: May 25, 1977\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t76\u20130807\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMETRO BUILDING SERVICES, INC.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNovember 8, 1976\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tAPPEARANCES\t\t\t\t\t\t\t\t\t\tKen S. Welsh, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant\t\t\t\t\t\t\t\t\t\tJohn H. Ford, President, Metro Building Services, Inc., Clearwater, Florida, on behalf of respondent\t\t\t\t\t\t\t\t\t\tCutler, Judge\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to 29 U.S.C. 659, of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq, hereinafter called the Act) stemming from one citation issued by complainant under authority provided by section 658 thereof.\t\t\t\t\t\t\t\t\t\tA citation with proposed penalty was issued respondent on January 14, 1976, following an inspection of its jobsite in Tampa, Florida, on January 12, 1976. A hearing was held on September 2, 1976, in Tampa, Florida, with the respondent appearing pro se.\t\t\t\t\t\t\t\t\t\tThe respondent is charged with a violation of 29 C.F.R. 1926.451(l)(1) and (l) (4)1\t\t\t\t\t\tby failing to assure that a boatswain\u2019s chair seat was reinforced on the underside to prevent board from splitting and by failing to assure the employee was protected by a safety belt and lifeline while working in a boatswain\u2019s chair suspended from the roof of a 10-story building, exposing employees to the hazard of falling more than 100 feet.\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\tThe citation was alleged as serious and the penalty proposed was $700.00 with abatement to be immediately upon receipt of citation.\t\t\t\t\t\t\t\t\t\tThere is no issue concerning jurisdiction, the respondent admitting it is an employer engaged in a business affecting commerce within the meaning of the Act (Tr. 5).\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tRespondent is a commercial exterior building and window cleaning firm which was engaged on January 12, 1976, in cleaning windows of a 10-story 100-foot high building under construction in Tampa, Florida. Mr. Bruce Hardin, a compliance officer for complainant, inspected the site at about 3:30 p.m. on that date. According to Mr. Hardin, he observed an employee of respondent cleaning windows on the west side of the building. The employee; later identified as Dan\t\t\t\t\t\tCarloc, was suspended 55 feet high in a boatswain\u2019s chair which was attached by means of a sling to a suspended rope from the parapet of the building. There was no lifeline or safety belt attached to Mr.\t\t\t\t\t\tCarloc\t\t\t\t\t\t(Ex. 1). He later examined the boatswain\u2019s chair and described it as wooden, rectangular, \u2018approximately 12 by 24 inches in width, and thickness approximately better than one inch.\u2019 It was strung on the underside with steel cable weaved through four holes in the corners but was not cleated on the underside through the width of the chair (see\t\t\t\t\t\tExs. 2 & 3).\t\t\t\t\t\t\t\t\t\tRespondent does not contest the above facts essentially as described by the compliance officer. However, it is contended that the wire cables crossing underneath the seat of the chair would prevent a fall if the seat split. To this end, testimony was given by Mr. Harry Volz, branch manager of a national building maintenance firm whose vocational experience included work as a window washer for about 27 years. Upon examination of a boatswain\u2019s chair\t\t\t\t\t\tsimilar to\t\t\t\t\t\tthe one involved in the citation (Ex. B) he opined that he would feel very secure working in the chair. Respondent also presented the testimony of Mr. Robert McLemore, one of its employees who has had 21\t\t\t\t\t\tyears experience\t\t\t\t\t\tas a\t\t\t\t\t\thighrise\t\t\t\t\t\twindow washer. In his opinion, the boatswain\u2019s chair used by respondent was safe. If the board broke, the cable under the seat would prevent an individual from falling.\t\t\t\t\t\t\t\t\t\tConcerning the use of lifelines (also called safety lines) and safety belts by Metro, the testimony of Mr. McLemore points up the method usually followed. The boatswain\u2019s chair operator initially wears a safety belt fastened to a safety line hooked to a solid object on the roof. After getting into the chair the safety line is disconnected and the belt fastened to the lower block suspending the boatswain\u2019s chair. A safety line is not used during work operations because the employee would have to stop about every three or four feet in order to readjust. He has never sustained a fall, however, he admitted that, if the rigging fell, a lifeline would save his life.\t\t\t\t\t\t\t\t\t\tAccording to Mr. John H. Ford, president of Metro, an employee would have to use his hands three or four hundred percent more if he had to manipulate a safety line and increase danger. If a safety line were required it would at least double the price of his operations. He personally did not know of any instances when rigging have fallen, although he read about some in the newspaper occurring up north.\t\t\t\t\t\t\t\t\t\tMr. Volz testified that use of a safety line \u2018has its pros and cons.\u2019 Because an individual\t\t\t\t\t\thas to\t\t\t\t\t\tuse his hands more extensively with a safety line on a boatswain\u2019s chair rig, a hazard could he created. On the other hand, if the rig breaks and there is no safety line, an individual would be seriously hurt or killed.\t\t\t\t\t\t\t\t\t\tIII\t\t\t\t\t\t\t\t\t\tTurning first to the boatswain\u2019s chair violation, there is no question but that the chair was not reinforced on the underside by cleats as specified by section 1926.451(l)(1). However, the evidence establishes that the construction of the chair is such that if the seat broke or split, the crossed cable underneath would prevent the occupant from falling. Under the circumstances, I would consider this to be only a de minimis violation.\t\t\t\t\t\t\t\t\t\tIV\t\t\t\t\t\t\t\t\t\tThe failure of respondent to assure that his employees utilized safety belts and lifelines is more serious. Respondent argues that the use of lifelines would be inconvenient for the window washers and would double the cost of operation. There is no claim that such a requirement would be impossible\u2014only impractical. In balancing any inconvenience in the use of safety belts and\t\t\t\t\t\tlife-lines\t\t\t\t\t\tagainst the protection given against potential death or injury, the safety requirements must prevail. As pointed out in\t\t\t\t\t\tIndustrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 477 (D.C. Cir. 1974), the Act \u2018represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs.\u2019\t\t\t\t\t\t\t\t\t\tRespondent also argued that a safety line would require increased use of an employee\u2019s hands and thereby create a hazard. This was also the testimony of Mr. Volz. I am not persuaded, however, that the potential for danger is as great as when no safety line is used. With an independently rigged safety line, an employee has the double protection afforded by that line and the boatswain\u2019s chair rigging. Failure of both at the same time would be a most unlikely occurrence.\t\t\t\t\t\t\t\t\t\tIn my opinion there exists a definite risk of death or serious injury to any individual working in a boatswain\u2019s chair who is not wearing a safety belt attached to an independently suspended\t\t\t\t\t\tlife-line. The fact that Mr. McLemore and Mr. Ford had no personal knowledge of cases where rigging has fallen (although the latter stated he had read in the newspaper of such incidents occurring up north) does not mean that the potential for danger is not there. Accordingly, I conclude that respondent was in violation of 29 C.F.R. 1926.451(l)(4).\t\t\t\t\t\t\t\t\t\tComplainant has proposed a penalty of $700.00 for both violations. However, considering that the violation of 1926.451(l)(1) is de minimis, the size of the company, history of no previous violations, and other factors, I deem a penalty of $350 to be appropriate and reasonable in this case.\t\t\t\t\t\t\t\t\t\tI reach the following findings of fact and conclusions of law:\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. That at the time and place in question, one of respondent\u2019s employees, while engaged in washing windows of a 10-story building, was suspended in a boatswain\u2019s chair at a height of 55 feet.\t\t\t\t\t\t\t\t\t\t2. That the boatswain\u2019s chair used by said employee was not reinforced on the underside by cleats securely fastened to prevent the board from splitting.\t\t\t\t\t\t\t\t\t\t3. That said boatswain\u2019s chair was strung on the underside with steel cable crisscrossed through four holes in the corners.\t\t\t\t\t\t\t\t\t\t4. That in the event the chair seat broke or\t\t\t\t\t\tplit, the crossed cables would prevent the employee from falling.\t\t\t\t\t\t\t\t\t\t5. That said employee was not using an independently rigged safety or lifeline attached to his safety belt.\t\t\t\t\t\t\t\t\t\t6. That had the rigging supporting the boatswain\u2019s chair broken, the employee would have fallen with the substantial probability that he would have sustained death or serious injury.\t\t\t\t\t\t\t\t\t\t7. That respondent\u2019s president knew that his employees did not use independently rigged safety or lifelines while working and that the boatswain\u2019s chair was not reinforced underneath by cleats.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. That this Commission has jurisdiction over the cause of action.\t\t\t\t\t\t\t\t\t\t2. That, while the seat of the boatswain chair was not reinforced on the underside by cleats as specified in 29 C.F.R. 1926.451(l)(1), the steel cables crossed underneath would prevent an employee from falling.\t\t\t\t\t\t\t\t\t\t3. That, in view of paragraph two above, the violation of 29 C.F.R. 1926.451(l)(1) is de minimis.\t\t\t\t\t\t\t\t\t\t4. That respondent violated 29 C.F.R. 1926.451(l)(4) by not providing his employees with independently rigged lifelines.\t\t\t\t\t\t\t\t\t\t5. That the violation of 29 C.F.R. 1926.451(l)(1) was serious.\t\t\t\t\t\t\t\t\t\tBased upon the foregoing findings of fact and conclusions of law, that portion of the citation alleging noncompliance with 29 C.F.R. 1926.451(l)(1) is modified to allege a de minimis violation and, as so modified, is affirmed. The remaining portion of the citation alleging noncompliance with 29 C.F.R. 1926.451(l)(4) is affirmed and a penalty of $350.00 is assessed therefor.\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCECIL L. CUTLER, Jr.\t\t\t\t\t\t\t\t\t\tJudge\t\t\t\t\t\t\t\t\t\tDate: November 8, 1976\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\tSection 1926.451(l)(1) provides the following for boatswain\u2019s chairs:\t\t\t\t\t\t\t\t\t\t\u2018The chair seat shall not be less than 12 x 24 inches, and 1-inch thickness. The seat shall be reinforced on the underside by cleats securely fastened to prevent the board from splitting.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSection 1926.451(l)(4) provides:\t\t\t\t\t\t\t\t\t\t\u2018The employee shall be protected by a safety belt and lifeline in accordance with \u00a7 1926.104. The attachment point of the lifeline to the structure shall be appropriately changed as the work progresses.\u2019\t\t\t”