“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-267 OTIS ELEVATOR COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March29, 1978DECISIONBefore: CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION:??????????? Adecision of Review Commission Judge James A. Cronin, Jr. is before theCommission for review pursuant to section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651 et seq. [?the Act?]. In his decision, theJudge affirmed one item of a citation alleging a nonserious violation of ?5(a)(2) of the Act for failure to comply with 29 C.F.R. ?\u00a01926.451(a)(13).[1] He assessed a penalty of$40.[2]??????????? Atthe time of the inspection, December 8 and 9, 1975, respondent was engaged ininstalling elevators in a building under construction. Its employees wereperforming their work from a thirty foot high Safway tubular weld framescaffold located in an elevator shaft. The employees used the rungs that werebuilt into the frame of the scaffold as the sole means of access to the workingareas of the scaffold. These rungs were 18 inches apart and were of varyingunspecified lengths. The compliance officer observed one of respondent?semployees catch his foot on the bottom rung of the scaffold. The employee didnot dispute that his foot became caught, but stated that it occurred when hetried to turn around on the scaffold instead of stepping directly off it.??????????? Theelevator shaft consisted of three solid walls and an open side abutted by aconcrete floor ledge near the top of the scaffold. On the right side of theelevator shaft there was a 14 inch space between the scaffold and the wall, onthe left side there was a 10 inch space, at the back of the scaffold there wasa two foot space, and in front there was a two and one-half foot space betweenthe scaffold and the concrete floor ledge.??????????? Inhis decision, the Judge held that the scaffold rungs did not provide accessequivalent to that of a ladder. He compared the scaffold rungs to those of ajob-made access ladder, citing to 29 C.F.R. ?? 1026.450(b) et seq. Thosestandards require a uniform distance of 12 inches between rungs and a 15 inchminimum length for rungs. Inasmuch as the scaffold rungs were 18 inches apartand some were less than 15 inches wide, the Judge ruled that these differenceswould adversely affect an employee?s ability to climb safely. He alsospecifically found that there was sufficient room at the right rear of thescaffold to install a ladder. He affirmed a nonserious violation of ?1926.451(a)(13) and assessed a $40 penalty based on the low risk of falling andrespondent?s good faith.??????????? Respondentcontends that the scaffold rungs provide access equivalent to that provided bya separate access ladder, and therefore it is in compliance with the citedstandard. It asserts that Safway scaffolds are customarily used withoutseparate access ladders and that there have been no known accidents resultingfrom climbing the rungs. In any event, respondent contends that it wasimpossible to erect any other access ladder because of the size of the scaffoldin relation to the size of the elevator shaft. Respondent claims that a laddercould not be installed in front of the scaffold because it would haveobstructed the front entrance through which elevator rails were brought intothe shaft.??????????? Weagree with Judge Cronin that the scaffold rungs did not provide accessequivalent to that provided by a separate ladder. An equivalent means of accessmust be virtually identical to a ladder and be as safe as that provided by aproperly constructed ladder. Rust Engineering Co. and Allegheny IndustrialElectric Co., 77 OSAHRC 37\/C8, 5 BNA OSHC 1183, 1977?78 CCH OSHD para.21,693 (Nos. 12200 & 12201, 1977). Consequently, we find a violation of ?\u00a01926.451(a)(13).[3] Charles H. Tompkins,77 OSAHRC 197\/D1, 6 BNA 1045, 1977?78 CCH OSHD para. 22,337 (No. 15428, 1977).??????????? Wemodify the Judge?s decision, however, to affirm a de minimis violation. As inCharles H. Tompkins, supra; where the rungs of a scaffold were 18 to 20 inchesapart, the climbing safety of respondent?s scaffold was not appreciablydiminished by the uniform 18-inch distance between the rungs. The employee whocaught his foot in a rung did so when he turned around on the scaffold insteadof stepping directly off it.[4]??????????? Accordingly,we affirm a de minimis violation of ? 1926.451(a)(13) and assess no penalty.??????????? It isso ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: MAR 29, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-267 OTIS ELEVATOR COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 8, 1976Appearances:For Complainant Arnold S. Battise, Esq.Office of the Solicitor U. S. Department of Labor555 Griffin Square Bldg.Dallas, Texas 75202\u00a0For Respondent Bennett W. Cervin, Esq.Thompson, Knight, Simmons & Bullion2300 Republic National Bank BuildingDallas, Texas 75201\u00a0DECISION AND ORDERCronin, Judge, OSHRC:??????????? Thisis a proceeding under section 10 of the Occupational Safety and Health Act of1970 (29 U.S.C. ? 651 et seq., hereinafter called the Act) involving aninspection of a respondent worksite at Tulsa, Oklahoma on December 8 and 9,1975. As a result of this investigation, a citation characterized as ?NONSERIOUS? and alleging violations of three safety standards was issued torespondent on December 17, 1975. A notification of proposed penalty issued the samedate proposes a penalty of $40.00 for item 2 and no penalties for items 1 and3.??????????? Boththe citation and notification of proposed penalty were served on respondent bysending it certified mail to its local sales and service office in Tulsa,Oklahoma where they were received on December 18, 1975. Subsequently, thesedocuments were forwarded to Mr. Lloyd Binns, respondent?s superintendent andsupervisor of all construction work in the State of Oklahoma at his office inOklahoma City, Oklahoma and Mr. Binns received them on December 24, 1975. Anotice of contest dated January 14, 1976, and signed by E. S. Hancock,Respondent?s Regional Safety Representative, was addressed to Mr. J. T. Knorpp,the Secretary of Labor?s Area Director and received by the Department of Laboron January 16, 1976.??????????? OnJanuary 29, 1976, the complainant filed a Motion to Dismiss Notice of Conteston the ground that the notice of contest was not filed on or before January 13,1976, alleged to be the last day of the 15 working period allowed for itsfiling. It was asserted that the citation and the proposed penalty became afinal order of the Commission on January 13, 1976, thus depriving theCommission of subject matter jurisdiction. By Commission order entered on April19, 1976, the complainant?s motion was denied. The Motion to Dismiss wasrenewed at the hearing on July 21, 1976 at Tulsa, Oklahoma and this Judgereserved final decision on this matter (Tr 4?5).Alleged Violations??????????? Thealleged violation of 29 C.F.R. ? 1926.401(c) was described in the citation asfollows:?The path from circuits, equipment and enclosures toground was not continuous; i.e., extension cord located in hatchway number 3when tested showed an open ground.???????????? ?1926.401(a)(1), (a)(2) and (c), as promulgated by the Secretary of Labor,provides:(a) Portable and\/or cord andplug-connected equipment(1) The noncurrent-carrying metal parts ofportable and\/or plug-connected equipment shall be grounded.\u00a0(2) Portable tools and appliancesprotected by an approved system of double insulation, or its equivalent, neednot be grounded. Where such an approved system is employed, the equipment shallbe distinctively marked.\u00a0(c) Effective grounding?The path from circuits, equipment,structures, and conduit or enclosures to ground shall be permanent andcontinuous; have ample carrying capacity to conduct safely the currents liableto be imposed on it; and have impedance sufficiently low to limit the potentialabove ground and to result in the operation of the overcurrent devices in thecircuit.???????????? Thealleged violation of 29 C.F.R. ? 1926.451(a)(13) was described in the citationas follows:An adequate access ladder or equivalentsafe access was not provided on scaffold; i.e., scaffold in use in hatchwaynumber 3 was not provided with access ladder nor did cross-bracing used in lieuof this provide equivalent safe access.\u00a0??????????? ?1926.451(a)(13), as promulgated by the Secretary of Labor, provides:An access ladder or equivalent safe accessshall be provided.??????????? Thealleged violation of 29 C.F.R. ? 1926.451(d)(7) was described in the citationas follows:Scaffold was not secured to the buildingor structure at intervals not to exceed 30 feet horizontally and 26 feetvertically to prevent movement; i.e., 30 foot tubular welded frame scaffold wasfree standing in hatchway number 3 and was not secured to the structure.???????????? ?1926.451(d)(7), as promulgated by the Secretary of Labor, provides:?To prevent movement, the scaffold shallbe secured to the building or structure at intervals not to exceed 30 feethorizontally and 26 feet vertically.??Jurisdiction and Issues??????????? Respondentdoes not contest this Commission?s jurisdiction, and, therefore, the onlyissues to be resolved are:??????????? 1.Whether the citation and notification of proposed penalty became final ordersof the Commission due to a failure by respondent to timely file its notice ofcontest???????????? 2.Whether respondent was in violation of the Act as alleged, and if it was, whatpenalty is appropriate?Discussion??????????? 1.Respondent filed its notice of contest in a timely manner and the Commissionhas jurisdiction of this proceeding.??????????? Section10(a) of the Act provides:If, after an inspection or investigation,the Secretary issues a citation under section 9(a), he shall, within areasonable time after the termination of such inspection or investigation,notify the employer by certified mail of the penalty, if any, proposed to beassessed under section 17 and that the employer has fifteen working days withinwhich notify the Secretary that he wish contest the citation or proposedassessment of penalty. If, within fifteen working days from the receipt of thenotice issued by the Secretary the employer fails to notify the Secretary thathe intends to contest the citation or proposed assessment of penalty, and nonotice is filed by any employee or representative of employees under subsection(c) within such time, the citation and the assessment, as proposed, shall bedeemed a final order of the Commission and not subject to review by any courtor agency.\u00a0??????????? Withrespect to the issuance of a citation this provision was recently interpretedin the case of Buckley and Company, Inc. v. The Secretary of Labor, 507F.2d 78, 81 (3d. Cir. 1975) as requiring??. . . that notification must be given toone who has authority to disperse corporate funds to abate the allegedviolation, pay the penalty or contest the citation or proposed penalty.????????????? Althoughboth the citation and notification of proposed penalty indicate that they werebeing issued to: ?Otis Elevator Company, 245 Park Avenue, New York, N. Y.10017, Attn: Mr. Hubert Faure, President?, both were mailed to respondent?slocal sales and service office in Tulsa, Oklahoma where they were received onDecember 18, 1975.??????????? Thecitation herein arises out of elevator construction and installation workperformed by Otis in Tulsa, Oklahoma, and it is undisputed that all ofrespondent?s construction and modernization activities in the State of Oklahomaare under the supervision of its Superintendent, Mr. Lloyd Binns, who maintainshis office in Oklahoma City, Oklahoma. He is the sole individual involved inrespondent?s construction activities in the State of Oklahoma with authority torespond to OSHA citations and abate alleged hazards, and he did not receive thecitation and notification of proposed penalty until December 24, 1975 (Tr76?79).??????????? Applyingthe principle enunciated in the Buckley case, supra, the receipt byrespondent?s superintendent on December 24, 1975, not the earlier receiptDecember 18th, constitutes the date of respondent?s notification of theproposed penalty for purposes of determining the 15 working day statutoryperiod allowed for the filing of a notice of contest. Respondent was requiredto take action to contest the citation and proposed penalty within 15 workingdays (Mondays through Fridays, excluding Federal holidays) after the December24th notification. Not counting the day of receipt, December 24th, December25th and January 1, 1976, Federal holidays, respondent had until January 16,1976 to file a timely notice of contest. The record establishes that OSHAreceived the notice of contest on January 16, 1976. Thus, the 15 working daystatutory period was complied with and this Commission has jurisdiction overthe proceeding.??????????? 2.Respondent was not in violation of ? 1926.401(c) because there was norequirement to provide ?effective grounding? for the portable drills andfloodlight.??????????? Inaddition to establishing that the extension cord in the instant case containeda defective or non-continuous grounding circuit, the Secretary also was obligedto prove that the cord was in use or available for use in a situation whereeffective grounding was required. As part of his direct case, the Secretaryestablished that the cord did not provide a continuous grounding circuit andthat it had been used ?for portable equipment tools and so forth? at theparticular worksite. The respondent, however, rebutted the Secretary?s primafacie case of violation by introducing uncontradicted testimony that the cordhad been used at the site only with two River Falls ?double-insulated? drillmotors. In this Judge?s view respondent carried its burden of proving by apreponderance of evidence that the portable tools were exempted from groundingby the provisions of ? 1926.401(a)(2). Thus, if no grounding was required noviolation of a standard mandating ?effective grounding? can be found withrespect to the drills.??????????? Oncross-examination of respondent?s mechanic-in-charge, however, it also wasbrought out, without objection, that the defective cord had been used with afloodlight at two other respondent worksites during the 30 to 45 day periodprior to the December 9th inspection. This floodlight was not double insulatedand came with only a two-pronged cord. According to the uncontradicted opinionof this witness, however, the floodlight did not have any exposed metal partswhich could possibly present an electrical shock hazard and it had a rubbersocket into which the bulb was inserted. In the absence of any evidence to thecontrary, this evidence preponderates in favor of a finding that the floodlightwas exempt from the applicability of ?\u00a01926.401(a)(1) because it wasprotected from electrical shock hazards by a system ?equivalent? to a doubleinsulation within the meaning of ? 1926.401(a)(2), and therefore, no groundingwas required.[5]??????????? 3.Respondent was in violation of ? 1926.451(a)(13) because the access to thescaffold in these areas did not provide to employees safe access equivalent toan access ladder.??????????? Otiswas using a 30-foot high tubular welded frame scaffold of the Safeway brand, atype of scaffold in use nationwide throughout the construction industry. Thisscaffold, which was ?possibly? five-and-a-half feet long, front to back, andsix-and-a-half feet wide, had ?rungs? or braces built into each end of thescaffold. These hollow, C-shaped braces were spaced approximately ?18 inches?apart and varied in width.[6] There was a two foot spacefrom the back edge of the scaffold to the back wall and a two-and-a-half footspace in front of the scaffold. On the left side there was a ten inch spacebetween the left edge of the scaffolding and the side wall, and on the rightside, a 14 inch space existed between the scaffolding and the side wall.??????????? Thesole means of access to the scaffold working areas was by means of the built-inbraces, and the compliance officer was of the opinion that it ?is much moredifficult than using a standard ladder or its equivalent?. He based thisopinion on the greater step-up distance of 18 inches and the narrow width ofthe braces which ?makes it difficult to get good footing?. In support of thislatter point he testified that he observed a respondent employee get his footstuck on one of the braces while descending.??????????? Inthe opinion of respondent?s mechanic-in-charge, Mr. Tillett, a separate ladderattached to the scaffold could not have been used effectively by the employeesunder the existing conditions. In his view a ladder positioned in front wouldhave obstructed the work in progress and he also believes that if a ladder hadbeen installed on the sides or rear of the scaffold there wouldn?t have beenenough room for an employee to go up and down the ladder. Also, a smaller sizescaffold in his opinion couldn?t have been safely used because it would haveforced the employees to work an unsafe distance from their installation and?lean way over the side? of the scaffold. Mr. Tillett further testified that hehas seen this type of scaffolding used ?many times? and never with a separateaccess ladder. He also has never had any difficulty in using these braces foraccess during the eight or nine times he has worked on such a scaffold, orexperienced any tendency to fall. At the time of inspection he climbed up anddown the scaffold three or four times to demonstrate to the compliance officerthat the braces were ?easily accessible.? He did not get ?stuck at any time.???????????? Onthis record this Judge is persuaded that the Secretary has satisfied his burdenof proving by a preponderance of the evidence that the built-in braces providedlesser safe access than an access ladder.??????????? Thecompliance officer?s opinion that the built-in braces failed to providerespondent employees with the same freedom from falling than would an accessladder is adequately supported by a comparison of the configurations of thescaffolding?s built-in-braces and those of an access ladder.??????????? Inthis Judge?s view the requirements for a job-made access ladder found at 29C.F.R. ?\u00a01926.450(b) et seq. provides a standard of recognized safetyeffectiveness against which alternative means of access permitted by ?1926.451(a)(13) can be measured. Compare for example the spacing of 18 inchesbetween the braces and the uniform spacing of 12 inches required for a job-madeaccess ladder, as well as the narrow width of the braces in question whichobviously are less than the 15 inch minimum prescribed for a cleat on ajob-made access ladder. When so compared, the conclusion is inescapable thatthese substantial differences in the spacing and width between the built-inbraces and the cleats of an access ladder would adversely affect an employee?sability to climb and descend. Consequently, the safety effectiveness of theaccess provided by respondent cannot be equated to the access of a standardladder.??????????? Evidencethat Safeway scaffolds are often used in the construction industry withoutseparate ladders does not relieve respondent from providing safe accessequivalent to an access ladder. Nor is the absence of evidence that any fallingaccidents have occurred as a result of the use of these scaffolds determinativeof whether ?equivalent? access has been provided. Finally, respondent?scontention that it would have been impossible to effectively use a ladder underthe existing conditions is belied by the fact that a ladder could have beenattached to the right rear, support of the scaffold and the existing two footspace would have supplied sufficient room for employee use.??????????? 4.Respondent was not in violation of ? 1926.451(d)(7) because the scaffold was?secured? to the building or structure and movement was thereby prevented.??????????? Inerecting the scaffold respondent?s employees placed plywood and wedgesunderneath the scaffold to prevent its sliding. The plywood was cut to theexact measurement of the hoistway so that it could not itself slip. Also, thescaffold was further secured at its 20-foot level to prevent movement bywedging a brace alongside the entire back of the scaffold between the walls ofthe hoistway, and then tying the scaffold to this brace by means of No. 9 wire(Tr 42). The scaffold did not move more than ?one inch, inch and a half? andthis movement came from the joints in the scaffolding itself. According to therespondent?s mechanic-in-charge, someone would have had to force the scaffoldin order to create more movement. The compliance officer testified that heobserved ?very slight? movement when the employees went up and down thescaffold.??????????? Thisstandard is interpreted to require that the scaffold be made fast to the structureat prescribed intervals. This does not mean, however, that the scaffold alwaysmust be attached directly to the structure. This Judge is persuaded that thebracing method used here constitutes compliance with the standard because thescaffold, as constructed, was capable of no greater movement than if it hadbeen directly attached to the building. Assuming arguendo that the standardrequires a direct attachment to the structure itself and that respondent,therefore, did not comply with the literal terms of the standard, this Judgewould characterize any such violation as de minimus rather than ?NON SERIOUS?because it would have only a neglible relationship to safety and health, andwould not warrant requirement of abatement or imposition of any penalty (SeeGenerally, Secretary v. National Rolling Mills Company, Docket No. 7987,(September 21, 1976)).??????????? 5. A$40.00 penalty for respondent?s violation is appropriate.??????????? Respondentis a large company in the elevator construction field with a past history of violationsunder the Act. This part history, however, is not considered significantlyadverse. Also, there is nothing in the record to indicate a lack of good faithon respondent?s part.??????????? Althoughthe risk of falling was low it did exist and one of respondent?s employeesgraphically demonstrated one of the deficiencies inherent in the providedscaffold access by getting his foot stuck. Based on the foregoing, a $40.00penalty appears appropriate and will encourage respondent to provide itsemployees with better access in the future.Findings of Fact??????????? Basedon the credible evidence of record, the following facts are found:??????????? 1. OnDecember 9, 1975, respondent was engaged in the installation of an elevator inTulsa, Oklahoma.??????????? 2. Atthis worksite on December 9th an electrical extension cord with anon-continuous grounding circuit was available for use, and has been used, withtwo portable drills. These drills were double insulated (Tr. 10, 53?55).??????????? 3.During the 30 to 45 day period prior to the December 9th inspection, thisextension cord had been used with a floodlight at two other respondentworksites. This floodlight does not have any exposed metal parts which couldpossibly present an electrical shock hazard and it has a rubber socket intowhich the light bulb is inserted (Tr. 63?65).??????????? 4.The sole means of access to the scaffold working area was by means of thebuilt-in braces on the ends of the Safeway brand scaffold. This means of accessdoes not have the same safety effectiveness as the access provided by an accessladder (Tr. 12?13, 15?16, 19, 23?24, 26, 46?51; Exhibits C?1, C?2).??????????? 5. Anaccess ladder could have been attached to the right rear support of thescaffold and employees would have had room enough to effectively use thisladder (Tr. 47; Exhibits C?1, C?2).??????????? 6.The scaffold which was thirty feet high and six-and-a-half feet wide wassecured to the hoistway structure because it was attached to a brace wedgedbetween the sides of the hoistway by means of No. 9 wire (Tr. 43?45). There was?very slight? movement observed in the scaffold (Tr. 31).??????????? 7.Under the existing conditions the scaffold, as constructed, was capable of nogreater movement than if it had been directly attached to the hoistwaystructure.Conclusions of Law??????????? 1. OnDecember 9, 1975, the respondent was not in violation of 29 C.F.R. ?1926.401(c).??????????? 2. OnDecember 9, 1975, the respondent was in violation of 29 C.F.R. ?1926.451(a)(13).??????????? 3. OnDecember 9, 1975, the respondent was not in violation of 29 C.F.R. ?1926.451(d)(7).??????????? 4.The penalty of $40.00 for respondent?s violation of 29 C.F.R. ? 1926.451(a)(13)is appropriate.ORDER??????????? Basedon the foregoing findings of fact, conclusions of law, and the entire record,it is ORDERED:??????????? 1.The alleged violation of 29 C.F.R. ? 1926.451(a)(13) is AFFIRMED, and a penaltyof $40.00 ASSESSED.??????????? 2.The alleged violations of 29 C.F.R. ? 1926.401(c) and ? 1926.451(d)(7) areVACATED.?James A. Cronin, Jr.Judge, OSHRCDated: November 8, 1976[1] The standardprovides as follows:?1926.451 Scaffolding.(a) Generalrequirements.(13)An access ladder or equivalent safe access shall be provided.[2] The Judge alsoheld that respondent had timely filed its notice of contest, and vacated twoitems of the citation alleging non-serious violations of 29 C.F.R. ??1926.401(c) and 1926.451(d)(7). Neither party has excepted to the Judge?sdisposition of these matters. Accordingly, the Commission will not review them.See Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339,1976?77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC37\/A2, 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976).[3] With respect torespondent?s contention that it was impossible to provide an access ladder, theJudge properly found that a ladder could have been installed at the right rearof the scaffold. Assuming it was impossible to provide a ladder, respondentwould still be required to provide some means of equivalent safe access. Inorder to sustain an ?impossibility? defense, respondent would have to provethat it was impossible both to erect an access ladder and to provide some meansof equivalent safe access. Respondent has failed to do this.[4] In Ringland-Johnson,Inc., 76 OSAHRC 63\/A2, 4 BNA OSHC 1343, 1976?77 CCH OSHD para. 20,801 (No.3028, 1976), aff?d, 55? F.2d 1117 (8th Cir. 1977), we held that a nonseriousviolation of ? 1926.451(a)(13) was established because the distance between therungs of a scaffold varied between 17 and 27 inches and some of the rungs wereonly six inches wide.[5] In regard torespondent?s additional defense, the fact that the defective grounding circuitalso could not have been used by the floodlights two-pronged plug would nothave excused respondent?s failure to provide effective grounding if theevidence had established that grounding of the floodlight was required by theAct.[6] The complianceofficer?s estimate of ?18 inches? is accepted rather than the ?guess? of ?14?15inches? by respondent?s mechanic-in-charge because the former?s estimate wasbased on prior measurements of similar scaffolds.”