GILLES & COTTING, INC.
OSHRC Docket No. 504
Occupational Safety and Health Review Commission
October 9, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision issued by Judge Leon J. Moran. Judge Moran concluded that Respondent committed 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") by violating standards promulgated under the Act. n1 For the reasons stated below we adopt the Judge's decision only to the extent it is consistent with the following decision.
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n1 The standards involved are currently published at 29 C.F.R. 1926.451(a)(2), 1926.451(a)(7) and 1926.451(g)(2).
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The relevant facts are essentially undisputed. Respondent was the general contractor for a construction project being carried out at the Goddard Manned Space Flight Center. A portion of the contract was subcontracted to Southern Plate Glass Company (hereinafter "Southern").
On October 29, 1971, a scaffold being used by Southern collapsed killing two of its employees. The scaffold had been supplied, rigged, moved, and used by employees who were on Southern's payroll, who worked for Southern at all times pertinent hereto, and who were subject to Southern's exclusive direction and control. Employees of other subcontractors were affected by the violative conditions. However, no employee of the Respondent herein used the scaffold and no employee of this Respondent was affected by any alleged unsafe condition of the scaffold.
Following the accident, Complainant made an investigation and issued two citations for serious violations, one to Respondent and one to Southern. n2 Respondent's citation was issued because as general contractor it had control of the job site, and employees of subcontractors were affected by the hazardous nature of the scaffold. n3 It is Complainant's theory that under circumstances such as exist in this case a general contractor is responsible jointly with his subcontractors for compliance purposes. In affirming the citation, Judge Moran concluded that a general contractor is responsible under the Act for the safety and health of all employees on the job site.
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n2 Southern did not contest its citation. Consequently, Southern's citation and the penalty proposed for the violation alleged therein became a final order of the Commission by virtue of the provisions of section 10(a) of the Act.
n3 In rendering his decision Judge Moran concluded that the evidentiary facts established a serious violation of the cited standards. We do not reach this question.
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We do not agree. The difficulty with Complainant's position is that it imposes liability outside the employment relationship. That is, it makes any employer who subcontracts while retaining control of the job site n4 responsible for the safety and health of working men and women who do not work for him, who are not subject to his direction and control, who are not on his payroll and who cannot be discharged by him. We do not think Congress intended the Act to go so far.
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n4 Although this case arose in construction Complainant's position, if accepted, would have application to all industry.
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By its terms section 5(a) imposes duties on "[e]ach employer" and the term "employer" is defined (in pertinent part) at section 3(5) as meaning ". . . a person engaged in a business affecting commerce who has employees. . . ." The term "employee" is defined at section 3(6) as meaning ". . . an employee of an employer who is employed in a business of his employer which affects commerce."
By using these terms Congress evidenced its intent that the obligations imposed by section 5(a) are predicated upon the existence of an employment relationship as between the obligated party (the employer) and the recipients of the benefits of the obligations. And, since this is remedial legislation, the employment relationship is not to be construed according to the technical concepts of the common law. See N.L.R.B. v. Hearst Publications, 322 U.S. 111 (1944); United States v. Silk, 331 U.S. 704 (1947); Rutherford Food Corporation v. McComb, 331 U.S. 722 (1947); Goldberg v. Whitaker House Cooperative, 366 U.S. 28 (1961); Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). These authorities, however, do not stand for the proposition that an agency should create an employment relationship when one does not exist in fact. Yet, the creation of such a relationship would be the necessary result were we to adopt Complainant's position.
The reason this is so is because we would have to impose the duty of abatement on both contractors, and the duty would be the same as to each contractor. Since the duty is the same each would have an equal right to abate by any available method and a right to use any available resource to achieve abatement. To deny either contractor the use of an available method or resource when both have an equal duty is unfair and does not further the purposes of this Act.
Oftentimes the available resource is the employees affected by the hazardous conditions of the violation. Usually these employees are employed by the subcontractor. Moreover, the subcontractor's employees may be the only workers on the job site who have the skills necessary to achieve abatement. For example, if the subcontractor is an electrical contractor then his electricians might well be the only individuals on the job site capable of abating electrical hazards.
Under Complainant's theory the general contractor having the duty to abate by virtue of his contractual position alone would have the right to direct the activities of the subcontractor's electricians for abatement purposes. It is hornbook law that the right to direct and control the activities of employees is vested in their employer. Accordingly, Complainant's position would create a limited employment relationship for the purposes of this Act.
As we said above the terms used in this Act contemplate an existing employment relationship. Nowhere do we find an indication that Congress intended the creation of the relationship where it does not exist in fact. n5 Accordingly, Complainant's position must be rejected.
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n5 The question of whether the parties may by contract between them share the responsibility for the safety and health of the subcontractor's employees is not before us. On review, Complainant stated that liability in this case is not predicated on the existence of a contract.
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It is therefore ORDERED that the citation and notification of proposed penalty are vacated.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I cannot agree with a majority decision on the facts. The majority states:
. . . [N]o employee of the Respondent herein used the scaffold and no employee of this Respondent was affected by any alleged unsafe condition of the scaffold.
The statement contradicts the trial Judge's conclusion that;
. . . [T]he scaffolding was there where one not an employee of the subcontractor would have access to it and there were other employees whether of the Respondent or a subcontractor who could have been in a position to suffer injury from the collapse of the scaffolding.
The majority fails to describe the basis upon which it rejects the Judge's conclusion that employees of this respondent were affected. It has an obligation to do so. Lorain Journal Co. v. F.C.C., 351 F. 2d 824, 828 (D.C. Cir. 1965). I am of the opinion that the preponderance of the evidence of record supports the conclusion.
Respondent's foreman at the jobsite testified that the scaffold was in place for "a couple days;" he had seen the scaffold "several days" before it collapsed, when he had first seen the scaffold "there was a party with me . . . the NASA inspector," and that he was on the jobsite daily for the entire day. A construction inspector for NASA, for whom the construction was being done, testified that ropes used on the scaffold were tied to points 35 to 45 feet across the roof and that he was on the roof almost daily. Respondent's Vice President was "at the job many times when the windows were going up and . . . saw the operation from the ground . . . [and] . . . from the roof." Also working in the area where the rigging collapsed were an undetermined number of roofers, a mason, a carpenter foreman. In addition, respondent had 30 to 50 employees at various places around the jobsite. n6
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n6 The evidence of record demonstrates that when the scaffolding collapsed two men, several hundred pounds of glass, tubular steel scaffolding and about 300 lbs. of counter-weights fell to the ground from a point as high as four stories.
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In light of the above evidence and in the absence of evidence to the contrary, I find no basis whatever for rejecting the Judge's conclusion that employees of respondent and other subcontractors could have been in a position to suffer injury from the collapse of the scaffolding.
A prime contractor has a clear obligation to abate a hazard to his own employees resulting from the use of the scaffold by his subcontractor. It is unnecessary to go further to decide this case.
[The Judge's decision referred to herein follows]
MORAN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. which will be referred to herein as "The Act" upon a notice of contest filed by Gilles and Cotting, Inc., the Respondent, seeking review of the Citation and proposed penalty issued by the Petitioner, the Secretary of Labor, pursuant to section 10(a) of the Act.
Following an accident on October 29, 1971, in which two employees of the Southern Plate Glass Company, n1 a subcontractor of Respondent were fatally injured in the collapse of a scaffolding assembly while installing windows at a work site at the Goddard Manned Space Flight Center where the Respondent was general contractor for a fourth floor addition to Building 23, the Petitioner issued the Respondent a Citation for a serious violation and notification of proposed penalty of $550.00 on January 29, 1972, alleging violation of safety and health regulations for construction 29 CFR 1518.451(a)(2)(7), now 29 CFR 1926.451(a)(2)(7) and 29 CFR 1518.451(g)(2) now 29 CFR 1926.451(g)(2). The Respondent on February 7, 1972, timely filed notice of contest as to the Citation and notification of proposed penalty. Previously an identical Citation and notification of proposed penalty of $650.00 had been issued to Southern Plate Glass which did not contest the Citation and paid the penalty.
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n1 Also referred to herein as "Southern Glass Company" and "the subcontractor."
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Jurisdiction of this Commission having been invoked, the cause was assigned for hearing and decision. Pursuant to notice a hearing was held in Washington, D.C. on April 27, 1972. Neither an authorized representative of the employees nor any individual employee appeared as a party at the hearing although by notice of the hearing an opportunity to do so was presented.
In enacting the legislation Congress in Section 2(b) of the Act declared it to be its purpose and policy to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to "preserve our human resources" by, among other things, encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their place of employment. Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. Occupational safety and health standards have been promulgated pursuant to Section 6 of the Act including those in the Citation which allegedly have been violated. Section 17(b) of the Act provides that any employer who has received a Citation for a serious violation of the requirements of section 5 of the Act, of any standard, rule or order promulgated pursuant to section 6 of the Act, or any regulations prescribed pursuant to the Act, shall be assessed a civil penalty of up to $1,000.00 for each such violation. Under Section 17(k) of the Act a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. The Commission under section 17(j) has the authority to assess all civil penalties 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.
The general issues to be determined are 1) whether the scaffolding in use to install window glass on Building 23 at the Goddard Manned Space Flight Center, Greenbelt, Maryland, by a subcontractor of the Respondent, was maintained and used in violation of sections 1518.451(a)(2)(7), now 29 CFR 1926.451(a)(2)(7) and 1518.451(g)(2) now 29 CFR 1926.451(g)(2) on or before October 29, 1971, and 2) if said scaffolding was erected, maintained and used in violation of such regulations for construction is the Respondent as prime contractor of the subject work site responsible for violation of said standards.
FINDINGS OF FACT
There is substantial evidence considering the whole record to support the following findings of fact:
1. Respondent, Gilles & Cotting, Inc., a Virginia corporation with its principal office and place of business at 929 West Broad Street, Falls Church, Virginia, was the general contractor for a fourth floor addition to Building 23 at the Goddard Space Flight Center pursuant to contract #NAS-5-21386. Said Respondent is engaged in interstate commerce as a general contractor in the Maryland, Virginia and District of Columbia area, and its annual gross income is between $2 million and $3 million. As an employer engaged in business affecting interstate commerce it has employees who are subject to the Occupational Safety and Health Act of 1970 and the regulations issued and promulgated thereunder. During the time of construction on the Goddard Space Flight Center it employed an average of 30 men.
2. Gilles and Cotting, Inc. subcontracted the glass construction work on Building 23 to Southern Plate Glass Co. On October 29, 1971, at Building 23 at the Goddard Space Flight Center, Greenbelt, Maryland, there was an accident resulting from collapse of scaffolding being used by said subcontractor. Two employees of Southern Plate Glass Co. were on the scaffolding which fell to the ground and later died from their injuries. There were no injuries to employees of the Respondent, Gilles and Cotting, Inc.
3. As a result of the accident of October 29, 1971, a Citation for serious violation was issued against the subcontractor, Southern Plate Glass Co.; it was not contested by said subcontractor, and has become a final order of the Occupational Safety and Health Review Commission. The proposed penalty to the subcontractor was $650.00 which sum has been paid.
4. An identical Citation for the same alleged violation arising out of investigation of the same accident was issued to the Respondent, Gilles and Cotting, Inc. on January 20, 1972, and served by Certified Mail on the Respondent on January 24, 1972. Respondent filed a Notice of Contest dated February 7, 1972 with M. R. Daly, Area Director, U.S. Department of Labor and subsequently notified the Executive Secretary of the Occupational Safety and Health Review Commission on February 18, 1972 of its compliance with the service requirements of the Commission. The parties have stipulated and it is found as a fact that the Citation, Notice of Contest and other pleadings were timely posted at the job site; that all affected employees of Respondent have authorized representatives; that said authorized representatives were properly served with copies of the Notice of Contest, Notice of the time and place of the hearing, and other pleadings herein, but that they did not enter an appearance in this proceeding.
5. The parties stipulated that the Citation to Respondent herein contained a proposed penalty of $550.00 which the parties stipulated was a reasonable and proper penalty, if in fact, the Respondent did commit the alleged violation.
6. Pursuant to its contract for the construction work the Respondent submitted to the Goddard Manned Space Flight Center an Accident Prevention Plan which states that the primary purpose of that program was prevention of occurrence of unsafe conditions and practices; and further provided in pertinent parts that accident prevention responsibility rests primarily with the job superintendent; that in order to achieve maximum efficiency through accident prevention the job superintendent must lead, promote and cooperate in the Accident Prevention Plan as evidenced by (a) frequently checking supervisory personnel for compliance with their responsibilities in accident prevention, (b) maintaining safe working conditions including full enforcement of all phases of the plan, (c) establish project committees on jobs and (d) thoroughly familiarize himself and all pertinent supervisory personnel with all pertinent safety requirements (P-4, pp 1-2); scaffolds were to be constructed and used in accord "with good practice" (P-4, p. 7); and for coordinating the company's accident prevention activities with those of subcontractors (P-4, p. 4).
7. In installing the window glass on Building 23 Southern Plate Glass employees used a scaffolding assembly consisting of two tubular (or patent) scaffolding units and two outrigger beams that projected over the roof to support the swinging staging or platform (See Ex. R-2). The counter-balance on each of the units consisted of weights weighing approximately 350 to 400 pounds (Tr. 41 and 50) set unsecured on a sheet of plywood against a 2X4 at the back of the tubular scaffolding; the outrigger beam was tied to the tubular scaffolding with three-quarter inch rope (Tr. 21); when initially assembled the I-beam was also tied at the back of the tubular scaffolding below the counterbalance by a rope running to a safety I-bolt in the roof (Tr. 48) but after a couple of days this securing of the I-beam was not continued when the scaffolding assembly was moved (Tr. 48-50); and no other means of securing the scaffolding assembly was used.
8. The scaffolding assembly in use at the time of the accident was of a type very infrequently used in this type of work according to the witnesses (Tr. 43, 52, 57, 64, 69, 75, 94) and was put into use to make the work go faster (Tr. 57).
9. When Southern Glass Company, as subcontractor, began its operation on the job site the Respondent's job superintendent at that time, Norman F. Lowe, Jr., reviewed their over-all safety policy on the job with their superintendent and foreman and with the four-man crew that came on the job the first day. Mr. Lowe testified that he discussed the Federal Construction Safety Regulations with Southern Glass Company's foreman and that he told him the scaffolding must be tied down, completely safe to use, and that when they were working on the scaffolding he expected safety belts, hard hats, all of the regulations being enforced (Tr. 155, 156). He further testified that he inquired as to type of scaffold staging they intended to use and when it did come on the job he inspected it (not the type of assembly involved in the accident) and found nothing wrong with it. The scaffolding, he said, when assembled was tied at the rear of the beam to window washing rings and it was also tied back in some instances all the way back into large concrete pads in the center of the roof (Tr. 152).
10. Mr. James W. Diven succeeded Norman Lowe as Respondent's job superintendent at the work site and was in charge when the tubular scaffolding rig involved in the accident was first used. He could not say he saw the scaffolding before it was put in use but did see it when in use several days before the accident with the NASA inspector; and he said that the outrigger beams were tied off within the scaffold itself and the tubular scaffolding were tied to I-bolts in the roof.
11. The scaffolding assembly in use at the time of the accident was intended to have two men working on the platform and to carry a quantity of glass (Tr. 22). At the time of the accident the total weight suspended was 1,423 pounds consisting of the two men, glass and the weight of the scaffold itself. With the outrigger beam extending 36 inches from the fulcrum point to the point where the cable was suspended the scaffolding would support 1,076 pounds on either side of the platform. If, however, the extension was 42 inches from the fulcrum to the point where the cable was suspended it would support 922 pounds on a side (Tr. 101, 102). The counter-weight load to support a thousand pounds should have been in the neighborhood of 1700 pounds in lieu of the 400 pounds actually used (Tr. 105).
12. The scaffolding being used at the time of the accident on which the counterweights were not secured constituted a violation of 29 CFR 1526.451(a)(2) formerly 1518.45(a)(2) which provides in part that "Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support scaffolds or planks."
13. The scaffolding being used at the time of the accident which the evidence establishes had a maximum intended load of approximately 1400 pounds was not capable of supporting without failure at least 4 times the maximum intended load and as such constituted a violation of 29 CFR 1926.451(a)(7) formerly 1518.451(a)(7) which provides "Scaffolds and their components shall be capable of supporting without failure at least 4 times the maximum intended load."
14. The scaffolding in use at the time of the accident was not securely braced in that the tubular scaffolding was not secured so as to prevent any horizontal movement; the I-beams or outrigger beams were tied to the tubular scaffolding with rope which subjected it to possible displacement by rope slippage or stretching; and the scaffolding at the time of the accident was not secured by being tied back to the window washer rings in the roof as it was when initially installed and the scaffolding assembly therefore was a violation of 29 CFR 1926.451(g)(2), formerly 1518.451(g)(2) which provides that "the inboard ends of outrigger beams shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement."
15. Respondent as the general contractor at the work site was responsible for overall safety and accident prevention. Respondent had the responsibility of seeing that scaffolds were constructed and used in accord with good practice (Finding No. 6). Respondent was aware of the fact that scaffolds required frequent inspections (Exhibit No. 4, p. 3) and the construction standards pertaining to scaffolds were known by Respondent. Respondent's superintendent saw the scaffolding when in use and although the scaffolding was a type not previously seen by him no effort was made to determine if it complied with the standards (Tr. 61-69).
OPINION
This action arose out of a Citation issued to the Respondent, Gilles and Cotting, Incorporated, a general contractor for the construction of an addition to Building 23 at the Goddard Manned Space Flight Center, Greenbelt, Maryland, as a result of an inspection following a fatal accident on October 29, 1971. Two employees of Southern Plate Glass Company, a subcontractor, were killed when a scaffolding assembly collapsed and the employees fell to their death. The record shows that Southern Plate Glass Company was also issued a Citation, paid a penalty, and did not file a notice of contest.
Respondent, as general contractor, had submitted an accident prevention plan which was accepted by the authorities at the Flight Center and the primary purpose of this program was the prevention of occurrence of unsafe conditions and practices. Accident prevention responsibility according to the plan rested primarily with the job superintendent. The plan recognized that scaffolds were among the hazards that are controllable by frequent inspections. The Respondent's accident prevention activities were required to be coordinated with those of the subcontractors.
Gilles and Cotting, the Respondent, has a safety program and discusses safety at its monthly meetings with its job superintendents; and when a project begins it is discussed at a pre-construction meeting with the subcontractors. The federal construction regulations were discussed with the job superintendent, Mr. Diven, who was told "in a general way" to make these requirements known to the subcontractors (Tr. 141-147). When the subcontractor started working on the job site the then job superintendent, Mr. Lowe, inspected a scaffolding assembly which was on rubber tires which was not the tubular type scaffolding involved in the fatal accident. Mr. Lowe testified he did call to the attention of the Southern Plate Glass Company the Federal Construction Safety Regulations (Tr. 151, 152).
About 3 or 4 days prior to the accident Southern Plate Glass started using a tubular type scaffolding on the roof of Building 23 in addition to the original scaffolding being used. Mr. Diven by that time had replaced Mr. Lowe as job superintendent. He apparently did not inspect the new scaffolding before it was put in use. He did not discuss safety standards with the employees of the subcontractor with respect to this scaffolding other than safety equipment such as safety belts and lines. He testified he had to his knowledge never seen a scaffolding rigged in this manner before (Tr. 61-70).
The scaffolding assembly consisted of two tubular scaffoldings unit through which I-beams or outriggers beams were placed with cables holding the swinging platform from them over the side of the building. The outrigger beams were secured to the tubular sections by rope tie. On the rear of each of the tubular scaffolding counterbalance of 400 pounds consisting of elevator weights and roofer cement blocks was placed unsecured on plywood. When first put into use the tubular sections were tied back to I-bolts, or window washer rings, in the roof of the building by rope but this was discontinued before the accident. The operation of installing the window glass required moving the entire scaffolding assembly after a section of window panes had been installed.
The scaffolding assembly was intended to support two men and the quantity of glass needed on a drop on the swinging or suspension platform. It is clear from the record that the scaffolding assembly did not support the maximum intended weight without failure much less being capable of supporting at least 4 times the maximum intended load. The record further establishes that the scaffolding was not securely braced in both directions to prevent any horizontal movement. The only securing of the assembly was by means of rope tying the I-beams to the tubular scaffolding and at first the supporting structure was tied back to window washer rings in the roof. There is evidence that there was movement of the outrigger beams as evidenced by wear marks on the beams. The scaffolding was moved when a section or sections of window panes had been completed increasing the likelihood of displacement of the I-beams secured to the tubular scaffolding only by rope ties. The counterbalance was not secured. The scaffolding assembly prior to and after the tie-back was removed did not meet the construction standards for scaffolding as set forth in regulations 1518.451 now designated 29 CFR 1926.451 of the safety and health regulations.
Respondent urges that the purpose of the Act is to provide a safe place of employment for one's employees; that the scaffolding was constructed, tested and used under the supervision and control of the subcontractor whose employees were the only ones to use the scaffold at any time; and that there is no evidence of any employees of Respondent having contact with or use of the scaffolding or that they were in a position or location on the job site in which they could have been injured by the scaffolding falling to the ground. The fact that no other person other than the subcontractor's employees were injured is fortunate but there were other employees on the work site during the time of operation of the scaffolding. The record contains a stipulation that the average daily number of employees on the job site was thirty. There is testimony there were roofers working while the scaffolding was in use. The scaffolding was used at least on one occasion by someone other than the subcontractor's employees when the Government Inspector used it to check on the installation of glass. In other words the scaffolding was there where one not an employee of the subcontractor would have access to it and there were other employees whether of the Respondent or a subcontractor who could have been in a position to suffer injury from the collapse of the scaffolding.
In any event in an operation such as here involved in the construction of a building where subcontractors are also used it is logical and necessary that overall safety and accident prevention be the responsibility of the general contractor. This responsibility was recognized by the accident prevention plan submitted by the Respondent. The testimony discloses that although the scaffolding assembly was a most uncommon type the Respondent's job superintendent did not thoroughly inspect it to ascertain whether it met the Federal Construction Standards for scaffolding.
The fact that the Government NASA Inspector had inspected the scaffolding when the tie-back was in place and thought it was safe has been considered but this does not relieve the Respondent of its primary duty to see that the standards are complied with. It may well be that if the tieback was in place there would have been at least a 4 to 1 safety margin as testified to by the Government witness Knox. Scaffoldings, however, being one of the many hazards producing personnel injury require frequent inspections for control purposes as recognized in Respondent's accident prevention plan and one that had to be moved often as in this case would appear to call for daily and careful, not cursory, inspections. In any event the scaffolding assembly when initially constructed did not meet the standards requiring prevention of horizontal movements or securing of the counterbalance. There is no question of the Respondent's good faith and interest in safety but the record discloses a failure on the part of its job superintendent to whom it delegated responsibility for overall safety to see to it that a highly unusual type of scaffolding rig met the Federal Standards and to call them to the attention of the subcontractor if not compied with. Based upon the findings of fact hereinbefore made and the record as a whole and for the reasons hereinabove stated it concluded that the Secretary correctly cited the Respondent for a serious violation for a failure to comply as required by section 5(a)(2) of the Act with Federal Occupational and Health Standards as promulgated under section 6 of the Act.
The Respondent stipulated that it is not contesting the proposed penalty of $550.00. Giving due consideration to the appropriateness of the penalty with respect to the size of the business of Respondent as stipulated, the gravity of the violation as shown by the record, the good faith of the Respondent and the stipulation that there is no history of previous violation it is concluded that the proposed penalty of $550.00 was reasonable and proper.
CONCLUSIONS OF LAW
1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661(c).
2. Respondent, Gilles and Cotting, Inc., being an employer within the meaning of the Occupational Safety and Health Act of 1970, is subject to the safety and health Regulations promulgated thereunder for construction, formerly 29 CFR Part 1518, adopted by 29 CFR section 1910.16 and redesignated as 29 CFR Part 1926.
3. On and before October 29, 1971, Respondent violated section 5(a)(2) of the Act and 29 CFR section 1926.451(a)(2) and (7) formerly section 1518.451(a)(2) and (7) and 29 CFR section 1926.451(g)(2) formerly 1518.451(g)(2) by permitting to be used by one of its subcontractors, with its knowledge, a scaffold assembly that did not meet the requirements of these construction standards.
4. This was a serious violation within the meaning of section 17(k) of the Act.
5. The penalty of $550.00 proposed against the Respondent was reasonable and proper.
6. The Citation and proposed penalty are affirmed in all respects.