“\ufeff\t\tTOWER CRANE ERECTION AND DISMANTLING COMPANY, INC., OSHRC DOCKET NO. 14578\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_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\t14578\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\tTOWER CRANE ERECTION AND DISMANTLING COMPANY, INC.,\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\tJanuary 26, 1977\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBefore BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0This 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\t\t\t\t\t\tparty has otherwise expressed dissatisfaction with the Administrative Law Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0In these circumstances, the Commission declines to pass upon, modify or change the Judge\u2019s\t\t\t\t\t\tdecis\t\t\t\t\t\ton in the absence of compelling public interest.\t\t\t\t\t\tAbbott-Sommer, 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., 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.*\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision.\t\t\t\t\t\tLaone\t\t\t\t\t\tConstr. Co., 3 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: January 26, 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(SEAL)\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\tMORAN, Commissioner, Concurring in Part, Dissenting in Part:\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0I would affirm the nonserious citation for the reasons stated in Judge Brady\u2019s decision, which is\t\t\t\t\t\tattached 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.\t\t\t\t\t\tAnning-Johnson Company v. OSAHRC,\t\t\t\t\t\t516 F.2d 1081 (7th Cir. 1975);\t\t\t\t\t\tSecretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion);\t\t\t\t\t\tSecretary 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\t\t\t\t\t\tSecretary 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.\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\tAPPENDIX A\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. 14578\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\tTOWER CRANE ERECTION AND DISMANTLING COMPANY, INC.,\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\tJune 28, 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\tRobert H. Buckler, 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\t\u00a0\t\t\t\t\t\t\t\t\t\tMr. Robert C. Hackman, Jr., East Point, Georgia, on behalf of respondent.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSTATEMENT OF THE CASE\t\t\t\t\t\t\t\t\t\tBRADY, Judge:\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0This 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\u2019s 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0On 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. \u00a7 1926.451(a)(13). Also, it is alleged that respondent failed to install guardrails on the scaffold at the\t\t\t\t\t\tsecond floor\t\t\t\t\t\tlevel in violation of the standard at 29 C.F.R. \u00a7 1926.451(x)(5)(v).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The evidence is clear that respondent\u2019s employees climbed from work to a scaffold without using ladders, and the scaffold was not provided with guardrails (Tr. 16,\t\t\t\t\t\tExh. C\u20131).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Respondent does not dispute that there were no ladders or guardrails present, but it denies any responsibility for providing them at the multi-employer worksite.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Mr. John Painter, president of Tower Crane Erection and Dismantling Company, indicated that respondent\u2019s 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).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Respondent\u2019s foreman testified that he was one of the employees depicted in complainant\u2019s 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).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The 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).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0In 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 \u2018. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .\u2019 Section 5(a)(2) thereof requires each employer to comply with the occupational safety and health standards promulgated under the Act.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The evidence establishes a violation of the standard at 29 C.F.R. \u00a7 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0It must be held on the evidence of record that respondent has also violated the standard at 29 C.F.R. \u00a7 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The 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\u2019s statement that \u2018the intent of the Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered employees.\u2019\t\t\t\t\t\tSecretary v. Hawkins Construction Company, 8 OSHRC 569, 570 (1974). Therefore, the Secretary has established that the standards were violated as alleged.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t\u00a0\u00a01. Tower Crane Erection\t\t\t\t\t\tand 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a02. 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a03. On July 18, 1975, authorized representatives of the Secretary conducted an inspection of the respondent\u2019s worksite. As a result of the inspection on August 4, 1975, two citations were issued with a notification of proposed penalty.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a04. Respondent\u2019s 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a05. The respondent was not responsible for the erection of the scaffolds or providing ladders for access to the scaffolds at the worksite.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a06. Respondent is directly responsible for maintaining safe working conditions for its employees.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t\u00a0\u00a01. 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a02. Respondent is, and\t\t\t\t\t\tat all times\t\t\t\t\t\tpertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a03. Respondent was in violation of the standard at 29 C.F.R. \u00a7 1926.451(x)(5)(v) on July 18, 1975, as charged the citation.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a04. Respondent was in violation of the standard at 29 C.F.R. \u00a7 1926.451(a)(13) on July 18, 1975, as charged in the citation.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a05. 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.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0On the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:\t\t\t\t\t\t\t\t\t\t\u00a0\u00a01. That the citations and proposed penalties for violation of the standards at 29 C.F.R. \u00a7 1926.451(a)(13) and 29 C.F.R. \u00a7 1926.451(x)(5)(v), are affirmed.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a02. A total penalty in the amount of $525 is assessed.\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 this 28th day of\t\t\t\t\t\tJune,\t\t\t\t\t\t1976.\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\tPAUL L. BRADY\t\t\t\t\t\t\t\t\t\tJudge\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”