SECRETARY OF LABOR,
Complainant ,
v.
ATLAS INDUSTRIAL PAINTERS,
Respondent.
OSHRC Docket No. 87-0619
DECISION
Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.
BY THE COMMISSION:
Atlas Industrial Painters, Inc. ("Atlas") is a painting contractor in
Birmingham, Alabama. In early March of 1987, Atlas was painting the cement wall on
the side of a bridge and the ironwork underneath the bridge on a Birmigham worksite, when
two Occupational Safety and Health Administration ("OSHA") compliance officers,
Terry Bailey and William Powers, conducted an inspection of the worksite. The
compliance officers observed three Atlas employees painting the bridge from two scaffolds
on opposite sides of the bridge. [[1/]] On each scaffold, the platform on
which the painters stood was approximately two feet wide and three feet long, and was
suspended over the side of the bridge by vertical steel members equipped with casters on
the top. Because of the caster, the entire scaffold could be rolled horizontally
along the edge of the guardrail. Each scaffold was lowered down the side of the bridge to
a position where the bottom of the work platform was about ten to eleven feet below the
surface of the bridge. The scaffolding platforms hung approximately thirty feet above the
ground. At the time of the inspection, neither lifelines nor safety nets were in place to
provide fall protection. One employee was wearing a safety belt, but it was not attached
to a lifeline. Each scaffold had a guardrail on the back of the platform.
The compliance officers photographed an Atlas employee as he climbed up one of the
scaffold of the scaffolds onto the bridge. Although each buggy scaffold had a ladder
attached to it, there was a gap of 72 inches from the bottom rung of the ladder to the
platform. This condition required the employee leaving the scaffolding to step up
approximately 42 inches from the floor of the platform to the rear guardrail of the
scaffolding and then to step up another 30 inches from the rear guardrail to the bottom
rung of the ladder. The president of Atlas, McRay Gingo, had provided ladder extensions at
the site that were designated to be attached to the bottom of the existing ladders, but
they were not in use during the inspection.[[2/]]
The ladder extensions, along with safety belts and lifelines, were in one of the trucks
parked at the worksite.
Based on the inspection, the Secretary issued to Atlas a single citation divided into
parts 1a and 1b. Item 1a, as amended, alleged a willful violation of 29 C.F.R. §
1926.28(a), for failure to require employees working on the platforms to wear personal
protective equipment.[[3/]] Item 1b alleged a willful violation of 29 C.F.R. §
1926.451(a)(13), for failure to provide an adequate access ladder for employees climbing
on or off the platforms.[[4/]] The Secretary proposed a total penalty of $6,400 for the
two-item citation. Atlas contested the citation, and a hearing was conducted before Review
Commission Administrative Law Judge Edwin G. Salyers. At the hearing and in its trial
brief, Atlas objected to the willful classification of the violations and to the amount of
the penalty. The judge held that Atlas willfully violated both standards, finding that
Atlas had "manifested plain indifference to employee safety" because it
"condon[ed] its employees['] flagrant disregard of the safety standards" by
failing to enforce its safety policy requiring the employees' use of the safety belts,
lifelines, and ladder extensions. The judge found the proposed $6,400 penalty to be
appropriate. On review, Atlas contests the willful designation of the citation, as well as
the $6,400 penalty.
I. Citation Item 1a
It is undisputed that three of Atlas' employees, who were exposed to a 30-foot fall hazard
from the unguarded platforms, were not wearing safety belts attached to lifelines, in
violation of 29 C.F.R. § 1926.28(a). At issue is whether Atlas' failure to comply with
the cited standard was a willful violation of the Act. In order to establish a willful
violation of the Act, the Secretary must prove that a violation was "committed
voluntarily with either an intentional disregard for the requirements of the Act or with
plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA OSHC
1017, 1019, 1986-87 CCH OSHD (P) 27,786, p. 36,341 (No. 83-1189, 1987).
Section 1926.28(a), by its express terms, makes the employer "responsible for
requiring the wearing of appropriate personal protective equipment." Bratton Corp.,
14 BNA OSHC 1893, 1897, 1990 CCH OSHD (P) 29,152, p. 38,993 (No. 83-132, 1990). Atlas'
president and two other Atlas employees testified regarding the company's use of safety
belts and lifelines.
McRay Gingo, Atlas' president, testified that "practically all the employees"
were told what Atlas' safety regulations are, were issued safety belts and lifelines, and
were told that they are required to "be tied off at all times when working over six
[feet] off the ground." However, Gingo testified that if Atlas enforced its safety
policy, the employees would leave, and that he has a problem finding experienced painters.
Charles Hyde, Atlas' supervisor at the worksite, testified that a workman found not using
a safety belt would be suspended for three days on the first occurrence and fired on the
second occurrence. He stated that it was his regular practice, as well as Atlas' policy,
to require employees to use their safety belts and lifelines. Hyde testified that he
occasionally had difficulty in getting employees to wear the safety belts and attach them
to the safety line, and that when he found an employee whose safety belt was not fastened
to the safety line, he would call the employee's "attention to it and make them
fasten it and tell them they'd better keep it fastened." While Hyde testified that he
had fired one or two men in the past for wearing a safety belt that was not tied off, Hyde
stated that he would only say "I don't really need you anymore." Thus, the
evidence suggests that he did not communicate to the employees the actual reason he fired
them. He also testified that after the inspection, he discovered an employee without his
safety belt secured but did not suspend him because "he was my main man [that had]
been with me a long time."
Ed Latham, an employee at Atlas, stated that if an employee is caught not wearing his
safety belt, "it's supposed to be three days off without pay." When Latham was
asked if he been suspended after Gingo caught him working without a lifeline, Latham
responded, "Well, he got onto me. he just needs me so bad he can't afford to fire
me."
In affirming a willful violation, Judge Salyers observed that "[i]n the present case,
respondent has manifested plain indifference to employee safety" by "condoning
its employees' flagrant disregard of the safety standards." The judge noted that
"[d]espite a previous citation for similar violations issued in 1982, respondent did
not have an enforced safety policy." Judge Salyers found that McRay Gingo, the
president of Atlas, knew that his employees were not complying with the safety standards.
He further found that although Atlas instituted a safety program that provided the
employees with ladder extensions, safety belts and lifelines, and encouraged the employees
to use, them, the message "tacitly communicated to the employees was that any
violation of the safety standards would be overlooked in the interests of keeping men on
the job."
After careful consideration of the record as a whole, we agree with the judge. OSHA cited
Atlas in 1981 for failing to comply with the same standard cited here after an employee
was killed in a fall. Despite this awareness of section 1926.28(a) and the potentially
dire consequences of failing to comply with it, Atlas condoned its employees' disregard
for the standard's requirements and did not enforce its own safety program with respect to
the use of safety belts and lifelines. See Constructora Maza, Inc., 6 BNA
OSHDC 1309, 1977-78 CCH OSHD (P) 22,487 (Nos. 13680, 14509, 1978).[[5/]] This failure to
enforce the known requirements of section 1926.28(a) is properly characterized as
"plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA
OSHC at 1019, 1986-87 CCH OSHD at p. 36,341. We therefore affirm the violation as willful.
II. Citation Item 1b
Atlas was additionally cited for violating 29 C.F.R. § 1926.451(a)(13) because of
"[t]he inadequacy and the manner in which employees gained access to an egress from
these buggy-type scaffolds." At the worksite, Atlas made available ladder extensions
that were designed to be attached to the bottom of the existing ladders on the scaffolds.
However, these extensions were not in use at the time of the inspection. On review, Atlas
does not dispute that it failed to comply with section 1926.451(a)(13) by not requiring
employees to use the ladder extensions provided at the site. It does contend that the
judge erred in characterizing the violation as willful. We agree with Atlas, and conclude
that the facts do not support a willful characterization of this violation.
It is undisputed that the ladder extensions were not attached to the ladders on the day of
the inspection. However, beyond the bare facts of the previous violation and Atlas'
president having constructed ladder extensions after that violation, there are
insufficient facts in the record upon which to base a willful characterization. The only
other pertinent evidence is the testimony of Atlas' Supervisor Hyde that he had instructed
the employees to attach the ladder extensions on the morning of the inspection. Gingo,
Atlas' president, testified that the ladder extensions were in place on the previous day.
There is no direct evidence that any Atlas supervisor had actual knowledge that the ladder
extensions were not in place at the time of the cited violation.
Moreover, the law interpreting section 1926.451(a)(13) would make it difficult for us to
characterize this violation as willful. The Commission has interpreted section
1926.451(a)(13)'s requirement that "[a]n access ladder or equivalent safe access
shall be provided" (emphasis added), to mean that "an employer must not
only provide but also ensure the use of an 'access to scaffolding." Borton, Inc.,
10 BNA OSHC 1462, 1465, 1982 CCH OSHD (p) 25,983, p. 32,599 (No. 77-2115, 1981). However,
that decision was subsequently reversed by the United States Court of Appeals for the
Tenth Circuit, which held that "the term 'provide' is not ambiguous" and that
all that is required by the standard is that an access ladder be provided. Borton, Inc.
v. OSHRC, 734 F.2d 508, 510 (10th Cir. 1984). Since Atlas was in compliance with the
Tenth Circuit's interpretation of the standard, its failure to comply with the
Commission's disputed interpretation does not suggest either intentional disregard for the
requirements of the Act or plain indifference to employee safety. Accordingly, we conclude
that the Secretary did not establish that Atlas' failure to comply section 1926.451(a)(13)
was willful.
Where the Secretary alleges that a violation is willful but fails to prove willfulness, an
other- than-serious violation may be affirmed. A serious violation will not be found
unless the parties have expressly or impliedly consented to try the issue of whether the
violation was serious. Crawford Construction Co., 10 BNA OSHC 1552, 1526, 1982 CCH
OSHD (P) 25,984, p. 32,607 (No. 79-928), rev'd on another grounds, 718 F.2d 1098
(6th Cir. 1983). Here, we hold that the violation cannot be classified as serious because
there was no allegation by the Secretary that the violation was serious and because the
issue was not tried by the parties. Keco Industries, Inc., 13 BNA OSHC 1161, 1170,
1986-87 CCH OSHD
III. Penalty
In his decision, the judge assessed the $6,400 penalty proposed by the Secretary, nothing
that Atlas' "argument that the penalty assessed by the Secretary is excessive is
without merit," because Compliance Officer Bailey "set out in detail how the
penalty was calculated in accordance with the OSHA Field Operations Manual."[[6/]]
In ruling on Atlas' contention that the Secretary unfairly determined that Atlas merited a
zero factor for good faith, the judge relied on language in Mel Jarvis Construction
Co., Inc., 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981). In Mel Jarvis, the
Commission held that "[t]he test of an employer's good faith, for purposes of
determining willfulness, is an objective one, i.e., was the employer's belief concerning a
factual matter or concerning the interpretation of a standard, reasonable under the
circumstances." The judge found that the $6,400 penalty was appropriate because
"[i]t was not reasonable for respondent to ignore OSHA safety standards out of fear
of losing employees who refused to exercise safety precautions while working."
Although we affirm the section 1926.451(a)(13) item as other-than-serious rather than
willful, the high gravity of the violations, Atlas' previous history of violations and its
lack of good faith provide no basis for reducing the combined penalty of $6,400 assessed
by the judge.
IV. Order
Accordingly, we find that Atlas committed a willful violation of section 1926.28(a) and an
other-than- serious violation of section 1926.451(a)(13). We assess a penalty of $6,400.
Edwin G.Foulke, Jr.
Chairman
Velma Montoya
Commissioner
Donald G. Wiseman
Commissioner
Dated: August 9, 1991
SECRETARY OF LABOR,
Complainant ,
v.
ATLAS INDUSTRIAL PAINTERS,
Respondent.
OSHRC Docket No. 87-0619
APPEARANCES:
Cynthia Welch Brown, Esquire, Office of the Solicitor, U.S.
Department of Labor, Birmingham, Alabama, on behalf of c
omplainant
Thomas E. Reynolds, Esquire, Birmingham, Alabama, on behalf of
respondent
DECISION AND ORDER
SALYERS, Judge: Respondent, Atlas Industrial Painters, Inc., is a painting contractor
operating out of Birmingham, Alabama. In early March of 1937 respondent was engaged as a
subcontractor on a worksite located on the Red Mountain Expressway in Birmingham. At the
time in question, respondent was painting the cement on a bridge expansion and the
ironwork that was located underneath the bridge (Tr. 10).
On March 3, 1987, OSHA Safety Compliance Officers Terry Bailey and William Powers arrived
at the worksite to conduct an inspection[[1/]] (Tr. 9-10). In the course of their
inspection, the compliance officers observed three Atlas employees working off of two
buggy scaffolds (Tr. 33). A buggy scaffold is one that hangs over a guardrail on a bridge,
enabling workers to gain access to the lower portion of the bridge (Tr. 13). The scaffold
platforms in question were approximately two feet wide and three feet long and were
suspended by steel members that hooked onto the guardrail. The scaffold was on casters
which allowed the scaffold to be rolled along the guardrail. The scaffold platform hung
about 10 feet below the guardrail, approximately 30 feet above the ground (Tr. 13, 17).
In order to gain access to or egress from the scaffold, respondent's employees had to
climb a ladder attached to the scaffold. The bottom rung of the ladder was 72 inches from
the platform. The compliance officers observed respondent's employees climbing over the
guardrail to egress from the scaffold (Tr. 16; Ex. C-1 thru C-4).
None of respondent's employees who were observed working off of the scaffold was using any
form of fall protection (Tr. 19). One of the employees was observed wearing a safety belt,
but it was not attached to a lifeline, or to anything else (Tr. 19). No lifelines were
present, and no safety nets were rigged (Tr. 19). The employees working off the scaffolds
were thus exposed to a 30-foot fall, with the probable result of death or serious physical
injury (Tr. 23).
Respondent had been previously cited for violation of fall protection standards in January
of 1982 (Tr. 36). That citation was issued pursuant to an investigation conducted by
Compliance Officer William Powers in December of 1981 following an employee fatality (Tr.
53, 55). Powers testified that during the follow-up inspection for the 1981 fatality, he
discussed abatement methods at length with McRay Gingo, respondent's president (Tr. 54).
After the 1981 inspection, platforms (Tr. 55, Ex. C-7).
Undisputed testimony from several witnesses established that the ladder extensions, safety
belts, and lifelines were in one of the trucks parked at the worksite, and none of them
was in use (Tr. 35, 45, 76, 94, 108). Charles Hyde, respondent's supervisor at the
worksite, testified that it was his regular practice to warn employees to use their safety
belts and lifelines (Tr. 81). Hyde also stated that he gave each new employee a safety
talk upon hiring (Tr. 98).
There was also testimony from respondent's own witnesses that any safety rules respondent
may have were not really enforced. Hyde testified that he had caught one of respondent's
employees without his safety belt since the most recent inspection but that Hyde did not
suspend him because "he was my main man that'd been with me a long time" (Tr.
97). Gingo stated that there was a big turnover in the construction industry and that it
was difficult to keep people (Tr. 120). One of respondent's employees, Ed Latham, stated
that if an employee is caught not wearing his safety belt, "it's supposed to
be three days off without pay" (Emphasis added) (Tr. 108). When Latham was asked if
he had been suspended after Gingo caught him working without a lifeline, Latham responded,
"Well, he got onto me. He just needs me so bad he can't afford to fire me" (Tr.
111).
Respondent was issued a citation on March 9, 1987, alleging a willful violation of 29
C.F.R. § 1926.105(a).[[2/]] At hearing the Secretary moved to amend that standard to 29
C.F.R. § 1926.28(a), which provides:
(a)The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous conditions
or where this part indicates the need for using such equipment to reduce the hazards to
the employees.
The evidence adduced at the hearing indicates that the use of safety belts and lifelines
is a more feasible means of providing fall protection than the use of safety nets.
Therefore, in accordance with Federal Rule of Civil Procedure 15(b), the Secretary's
motion is granted.
Respondent was also charged with a willful violation of 29 C.F.R. § 1926.451(a)(13),
which provides: "An access ladder or equivalent safe access shall be provided."
Even though respondent had acquired appropriate ladders for use by its employees following
the 1981 inspection, the undisputed evidence discloses these ladders were not in use at
the time of the current inspection.
OSHA's proposed penalty for the alleged willful violations is $6,400. Respondent objects
to the "willful" classification and to the amount of the penalty.
"A violation is willful if it was committed voluntarily with either an intentional
disregard for the requirements of the Act or with plain indifference to employee
safety." A.C. Dellovade, Inc., OSAHRC,
______13 BNA OSHC 1017, 1987 CCH OSHD (p) 27,786, p. 36,341 (No. 83-1189, 1987). In the
present case, respondent has manifested plain indifference to employee safety.
Despite a previous citation issued in 1982 for similar violations, respondent did not have
an enforced safety policy. Compliance Officer Powers had spoken with Gingo following the
1982 citation and had discussed methods of abatement with him. Gingo was well aware of the
requirements of the standard. He did not require his employees to comply with the
standards because he was afraid that such enforcement would cause the employees to quit.
The employees knew this and violated the standards with impunity.
Gingo knew that his employees were not complying with the safety standards. Respondent
ostensibly instituted a safety program providing its employees with ladder extensions and
safety belts and lifelines and encouraging the employees to use them. But the message that
was tacitly communicated to the employees was that any violation of the safety standards
would be overlooked in the interests of keeping men on the job. By condoning its employees
flagrant disregard of the safety standards, respondent committed a willful violation of 29
C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.451(a)(13).
Respondent's argument that the penalty assessed by the Secretary is excessive is without
merit. Compliance Officer Bailey set out in detail how the penalty was calculated in
accordance with the OSHA Field Operations Manual (Tr. 38-40).
Respondent contends that the Secretary unfairly determined that respondent merited a zero
factor for good faith (Tr. 40). "The test of an employer's good faith, for purposes
of determining willfulness, is an objective one, i.e., was the employer's belief
concerning a factual matter or concerning the interpretation of a standard, reasonable
under the circumstances." Mel Jarvis Construction Co., Inc., 81 OSAHRC 81/B13,
10 BNA OSHC 1052, 1053, 1981 CCH OSHD (p) 25,713 (No. 77-2100, 1981). It was not
reasonable for respondent to ignore OSHA safety standards out of fear of losing employees
who refused to exercise safety precautions while working. The penalty of $6,400 is
appropriate.
FINDINGS OF FACT
1. Atlas Industrial Painters, Inc. ("Atlas") is a painting contractor
operating in and around Birmingham, Alabama.
2. On March 4, 1987, OSHA Compliance Officers Terry Bailey and William Powers commenced an
inspection on a worksite located on the Red Mountain Expressway where Atlas was engaged as
a subcontractor. Atlas was painting the cement on a bridge expansion and on the ironwork
located beneath the bridge.
3. The compliance officers observed three of Atlas' employees working off of two buggy
scaffolds. The buggy scaffold were suspended approximately 10 feet below the bridge
guardrail and approximately 30 feet above the ground. The scaffolds were equipped with
ladders to provide the employees with access to and from the scaffold. The bottom rung of
the ladder was 72 inches from the scaffold platform.
4. Safety belts, lifelines, and ladder extensions for the scaffold ladders were all kept
in a truck owned by Atlas and parked at the worksite. None of these items was being used
by Atlas' employees at the time of the inspection.
5. Atlas had been previously cited in 1982 for violation of fall protection standards
following an employee fatality. Compliance Officer Powers had conducted that inspection
and had discussed abatement methods with Atlas' president, McRay Gingo.
6. Atlas provided its employees with safety belts, lifelines, and ladder extensions and
told them to use the items. The employees were not, however, disciplined or penalized when
they ignored this instruction.
CONCLUSIONS OF LAW
1. Atlas, at all times material to this proceeding, was engaged in a business affecting
interstate commerce within the meaning of section 3(5) of the Occupational Safety and
Health Act of 1970 ("Act").
2. Respondent, at all times material to this proceeding, was subject to the requirements
of the Act and the standards promulgated thereunder. The Commission has jurisdiction of
the parties and of the subject matter.
3. Atlas was in willful violation of 29 C.F.R. § 1926.28(a) for failing to require its
employees to wear safety belts and lifelines.
4. Atlas was in willful violation of 29 C.F.R. § 1926.451(a)(13) for failing to provide
and require the use of a safe access ladder on its buggy scaffolds.
ORDER
Based upon the findings of fact and conclusions of law, it is
ORDERED:
Items 1a and 1b of the willful citation issued to Atlas on March 9, 1987, is affirmed and a penalty of $6,400 is assessed.
EDW'N G. SAILYIERS
Judge
Date: January 13, 1988
FOOTNOTES:
[[1/]]A buddy scaffold, alson known as a rail scaffold, is a scaffold that attaches to
a bridge's guardrail and has a platform that hangs down below the bridge, enabling workers
to gain access to the lower portion of the bridge.
[[2/]]Several years prior to this inspection, on December 23, 1981, Atlas had been issued
a citation alleging a serious violation of 29 C.F.R. § 1926.28(a), for its failure to
provide lifelines to employees working on a scaffold, and an other-than- serious violation
of 29 C.F.R. § 1926.451(a)(13), for the company's failure to provide an access ladder to
the buggy scaffold platform, "exposing employee(s) to possible fall hazard."
That case involved a fatal accident and was investigated by William Powers, the compliance
officer who assisted in conducting the inspection in the present case. After the 1981
inspection, Gingo devised ladder extensions to provide access to the scaffold platforms.
Earlier in March 1972 and then again in May 1972, OSHA cited a firm doing business as
Paintings Unlimited for hazards related to falls from scaffolding and falls resulting from
inadequate access to scaffolding ladders. McRay Gingo was the general manager of Paintings
Unlimited, which later became Atlas Industrial Painters.
[[3/]]The Standard provides:
§ 1926.28 Personal protective equipment.
(a)The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for employees.
At the hearing, the Secretary made a motion to amend item 1a of the citation from 29 C.F.R. § 1926.105(a) to 29 C.F.R. § 1926.28(a). Atlas contested the motion to amend. The judge reserved ruling on the amendment until his decision, where he granted the motion. On review, Atlas did not contest the judge's ruling.
[[4/]]The standard provides:
§ 1926.451 Scaffolding
(a) General Requirements.
(13) An access ladder or equivalent safe access shall be provided.
[[5/]]In Constructora Maza, the employer was issued a citation for a willful violation of 29 C.F.R. § 1926.28(a), in which it was alleged that the company's employees failed to wear safety belts while exposed to a fall of 138 feet. In affirming the allegation that the employer had a company rule requiring the employees' use of safety belts, no disciplinary action was taken against the employees, despite their repeated failure to wear safety belts.
[[6/]] Compliance Office Bailey testified that an adjustment for good faith was not given because the OSHA Field Operations Manual permits "no adjustment for good faith where a willful, high-gravity, serious violation occurs." No adjustment for history of previous violations was given because "the company has a history of serious violations of the standard."
[[1/]]
The inspection of the entire worksite lasted three days (Tr. 11). After the first day, it
was determined that only one compliance officer was needed to complete the inspection, and
Terry Bailey continued on the following two days alone (Tr. 52). All of the events at
issue in the present case occurred on the first day of the inspection, March 3, 1987 (Tr.
43).
[[2/]]Section 1926.105(a) provides:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.