GENERAL STEEL FABRICATORS, INC.
OSHRC Docket No. 13646
Occupational Safety and Health Review Commission
August 29, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Reg. Sol., USDOL
William J. Lane, Jr., General Steel Fabricators, Inc., for the employer
International Association of Bridge, Structual & Ornamental Iron Workers, Local 12, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On December 16, 1975, Administrative Law Judge Seymour Fier issued his decision in this case affirming a citation issued to respondent alleging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"], for failure to comply with the standard at 29 CFR § 1926.451(a)(4). n1
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n1 The standard reads:
§ 1926.451 Scaffolding.
(a) General requirements.
* * *
(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
[*2]
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Neither the respondent employer nor the Secretary of Labor petitioned for review of this decision. Commissioner Moran, however, issued a direction for review reading as follows:
Pursuant to 29 U.S.C. § 661(i), I hereby direct that the decision of the Administrative Law Judge in the above-entitled case shall be reviewed by the Commission.
Respondent employer filed a brief statement of its position in reliance upon the order for review, and we shall therefore consider its contentions. See the Commission's policy statement published at 41 Fed. Reg. 53015 (December 3, 1976). The Secretary did not file a brief.
For the reasons that follow, we affirm the Judge's decision.
Respondent was engaged in steel erection at a construction worksite at the time of the inspection. During the inspection, the compliance officer observed respondent's foreman on a scaffold approximately 15 feet above the ground. The scaffold, described as a "standard ladder-type platform", rested on bearers connected to steel columns of the building under construction. The only perimeter protection on the scaffold consisted [*3] of a single length of one-half inch manila rope, strung across the open sides of the scaffold. The employee on the scaffold was not wearing personal protective equipment in the nature of a safety belt and lanyard.
A citation was issued alleging a serious violation of the Act for failure to comply with 29 CFR § 1926.451(a)(4). The citation stated that ". . . an employee was observed working on a scaffold 15' 4" from the ground without the required guardrail and toeboard on all open sides and ends" (emphasis added). A $500 penalty was proposed. Respondent contested the citation and penalty, and a hearing was held. The facts, as recited above, were uncontroverted.
In his decision, Judge Fier rejected respondent's assertion that use of the manila rope satisfied the standard's requirements, and concluded that respondent had failed to establish that it would be unable to perform its work if it complied literally with the standard. Finding that the facts showed both a failure to comply with the standard and employee exposure to the hazard of falling, he affirmed the citation and assessed a $500 penalty.
On review, respondent repeats the arguments made before the Judge, n2 emphasizing [*4] three issues in particular. It argues that: (1) the manila rope provided sufficient protection to satisfy the standard's requirements; (2) the use of rigid guardrails and toeboards in this situation is both unsafe and impractical; and, (3) the violation, if any, was nonserious and the $500 penalty was excessive.
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n2 In its brief to the Judge respondent asserted that § 1926.451(i)(8) was applicable, and not the cited standard. This assertion is incorrect. Section 1926.451(i)(8) by its terms applies to two-point suspension, or "swinging," scaffolds. The involved scaffold was not this type. See § 1926.452(a)(34).
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We agree with the Judge's conclusion that a violation was established. The cited standard reads:
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds or floats . . . (emphasis added).
The terms of this standard are clarified by the subsequent paragraph, § 1926.451(a)(5), reading:
Guardrails [*5] shall be 2 X 4 inches, or the equivalent, n3 approximately 42 inches high, with a midrail, when required. Supports shall be at intervals not to exceed 8 feet. Toeboards shall be a minimum of 4 inches in height (emphasis added).
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n3 For guidance on the meaning of the term "or the equivalent," see OSHA PROGRAM DIRECTIVE #100-58 (February 18, 1977).
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The uncontroverted evidence is that the involved scaffold, located 15 feet above ground level, had neither midrails nor toeboards. This evidence clearly establishes a failure to comply with the standard's requirements.
Respondent also argues that to require that rigid guardrails and toeboards be attached to the narrow scaffold involved in this case is impractical and unsafe. It asserts that it adopted a "more practical and reasonable approach" for protecting its employees, i.e., the use of the manila rope, and therefore the citation should be vacated. It cites us to the administrative law judge's decision in Eichleay Corp., 2 BNA OSHC 1635, 1973-74 [*6] CCH OSHD para. 16,811 (No. 2610), aff'd by the Commission, 2 BNA OSHC 1635, 1974-75 CCH OSHD para. 19,324 (1975), as being analogous to the situation involved herein.
In Eishleay, the respondent had been cited for a failure to comply with § 1926.451(a)(4). The Judge found, however, that installation of guardrails and toeboards on a 2-inch-by-12-inch scaffold "would have severely limited and restricted the employees" in performing the type of work involved. He also found that since the employees on the scaffold were using safety belts and lifelines, respondent had adopted a "more practical and reasonable approach" towards protecting its employees from the hazard of falling. Therefore, the citation alleging noncompliance with § 1926.451(a)(4) was vacated. n4
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n4 On review, the Commission affirmed the Judge's decision finding "no prejudicial error."
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Respondent asserts that the only distinction from the present case is in the nature of the alternative approach taken to protect the employees on the scaffolds, [*7] i.e., the use of the perimeter rope rather than safety belts and lifelines. Judge Fier rejected this contention, finding that respondent had "failed to demonstrate that it could not comply with the standard and still perform its work." n5 We agree.
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n5 Judge's decision at 7.
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As to respondent's assertion that the use of rigid guardrails and toeboards is impractical, there is no defense of impracticality. The Commission has recognized a defense of impossibility of compliance with a standard's requirements. It is well settled, however, that inconvenience or impracticality is not enough. K & T Steel Corp., 3 BNA OSHC 2026, 1975-76 CCH OSHD para. 20,445 (No. 5769, 1976); Diebold, Inc., 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (Nos. 6767, 7721, & 9496, 1976); Sheet Metal Specialty Co., 3 BNA OSHC 1104, 1974-75 CCH OSHD para. 19,546 (No. 5022, 1975). There is no evidence that it was impossible to perform the work involved with guardrails and toeboards in place and its argument therefore fails. [*8]
Respondent's assertion that compliance with the standard would have been unsafe is also rejected. The Commission does read section 5(a)(2) of the Act as not requiring compliance with a standard when compliance would diminish rather than enhance the safety of employees. An employer may assert a "greater hazard" as an affirmative defense. Russ Kaller, Inc., T/A Surfa Shield, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976); Cornell & Co., Inc., 5 BNA OSHC 1018, 1976-77 CCH OSHD para. 21,532 (No. 9353, 1977); Industrial Steel Erectors, Inc., 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974). The defense, however, is narrow. As stated in Russ Kaller, supra:
. . . It is not enough that compliance with the literal terms of the standards would create new hazards . . . The record must show that the hazards of compliance are greater than the hazards of noncompliance . . .; that alternative means of protecting employees are unavailable n6 . . .; and that a variance application under section 6(d) of the Act would be inappropriate . . . (citations omitted).
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n6 If alternative means of protection are in fact available, it must be shown that they were used.
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Applying this precedent, we conclude that a "greater hazard" defense has not been established. The only evidence on the point is the testimony of respondent's job superintendent that ". . . when you turn around and bend over you're off balance with that rail along your back," n7 and that a rigid guardrail "tends to overload" the scaffold. n8 Without more, we hold that this testimony falls short of proving that the use of the rigid guardrails was more hazardous than the use of a single length of manila rope as a railing.
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n7 Transcript at 30.
n8 Transcript at 38.
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Regarding the lack of toeboards, respondent's brief states that a
toeboard attached to the side of a 12" wide working surface would have 'severely limited and restricted' the movements of the employees; and any sudden or unguarded movement of employee's feet against the [*10] toeboard might probably have caused them to stumble or lose their balance. n9
This statement is without support in the record and does not persuade us that the use of toeboards was more hazardous than their nonuse.
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n9 Respondent's brief to judge at 10.
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Also, respondent has not established that alternative means of providing equivalent protection were unavailable. The use of a single length of manila rope does not provide protection equivalent to the use of both toprails and midrails, as required by the standard. Similarly, the unavailability of an alternative to the use of toeboards was not proved.
Finally, respondent has not shown why an application for a variance from the standard's requirements under section 6(d) of the Act of 29 CFR Part 1905 would be inappropriate in this situation.
As its final argument, respondent asserts that the violation should be characterized as not "serious," and that the penalty of $500 proposed by the Secretary, and assessed by the Judge, is excessive in comparison with other cases [*11] in which allegedly "greater hazards" existed.
A "serious" violation exists "if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." n10 The compliance officer testified without rebuttal that a fall from the scaffold 15 feet above the ground would result in serious physical harm or death. Also, it is not denied that respondent knew that the only perimeter protection in use on the scaffold was the manila rope. A serious violation has been established.
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n10 Section 17(k) of the Act.
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Concerning the penalty assessment, the Commission has the authority to assess civil penalties for violations of the Act, "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations." [*12] n11 The appropriate penalty in each case depends on the facts of that particular case. We find convincing respondent's arguments that in effect greater consideration be given to its good faith. Accordingly, we assess a penalty of $150, which is within the range of penalties for similar violations in other cases.
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n11 Section 17(j) of the Act.
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The Judge's decision finding respondent in "serious" violation of the Act for failing to comply with the standard at 29 CFR § 1926.451(a)(4) is affirmed, and a penalty of $150 is assessed.
It is so ORDERED.