SECRETARY OF LABOR,

Complainant,

v.

CECO CORPORATION,

Respondent.

Docket No. 90-1051

ORDER

On October 1, 1991, Respondent filed a Notice of Withdrawal and Substitution of Counsel of Record.  Respondent states that Michael F. Swick, of the firm of Drew, Eckl, & Farnham, has withdrawn as counsel of record.   Respondent also requests that Benton J. Mathis, Jr., of the same firm, be substituted as counsel of record.

The Commission has considered Respondent's Notice of Withdrawal and Substitution of Counsel of Record.  The Commission treats the notice as a Motion for Withdrawal of Counsel under Rule 23(b) and grants the motion.   Respondent's request that Benton J. Mathis, Jr. be substituted as counsel of record is treated as an entry of appearance under Commission Rule 23(a)(3).

Also pending in this case is the Stipulation and Settlement Agreement which the parties have filed.  Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission.   The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order.  This is the final order of the Commission in this case.  See 29 U.S.C. §§ 659(c), 660(a) and(b).

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated November 1, 1991

Secretary of Labor,

Complainant,

v.

The CECO Corp.,

Respondent.

OSHRC No. 90-1051

STIPULATION AND SETTLEMENT
AGREEMENT

I.

The parties have reached agreement on a full and complete settlement and disposition of Serious Citation No. 1 Item 1 of this case, which is currently pending before the Commission.

II.

It is stipulated and agreed between the Complainant, Secretary of Labor, and the Respondent, The CECO Corp. (CECO), that:

1. Complainant withdraws serious citation No. 1 Item 1.

2. There is no authorized employee representative in this case.

3. Each party agrees to bear its own fees, costs and expenses incurred by such party in connection with all stages of this proceeding.

III.

Respondent posted this Stipulation and Settlement Agreement in accordance with Commission Rules 2200.7 and 2200.100 on October 14th, 1991.


DAVID S. FORTNEY
Deputy Solicitor of Labor

CYNTHIA L. ATTWOOD
Associate Solicitor for
Occupational Safety and Health

DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health

DANIEL J. MICK
Counsel for Regional
Trial Litigation

Noah Connell (Date)
Attorney for the Complainant Secretary of Labor

Benton J. Mathis, Jr.
Attorney for the Respondent
The CECO Corp.

CERTIFICATE OF POSTING

A copy of the attached Stipulation and Settlement Agreement was posted at The CECO Corp. on October 14, 1991, in accordance with Review Commission Rules 7 and 100, and remained posted for a period of ten days.

The Pictorial exhibit refererred to is not available in this format.  Please telephone the Review Commission Public Information Office, 202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL:    lwhitsett@oshrc.gov

SECRETARY OF LABOR,

Complainant,

v.

THE CECO CORPORATION,

Respondent.

OSHRC Docket No. 90-1051

APPEARANCES:

Cynthia Welch Brown, Esquire, Office of the
Solicitor, U. S. Department of Labor, Birmingham,
Alabama, on behalf of complainant

Michael F. Swick, Esquire, Atlanta, Georgia, on
behalf of respondent

DECISION AND ORDER

SALYERS, Judge:  The Ceco Corporation is a concrete masonry contractor whose principal place of business is located in Birmingham, Alabama.  On February 14, 1990, Occupational Safety and Health Administration ("OSHA") Compliance Officer Michael Leek inspected a worksite at 809 University Boulevard in Tuscaloosa, Alabama, where a four-story parking garage was under construction.  Ceco was performing the form work on the project (Tr. 7).  As a result of the inspection, Ceco was issued a citation on February 26, 1990.

The citation alleged serious violations of the following standards: section 5(a)(1) for failure to furnish employees with a place of employment free from recognized hazards likely to cause death or serious physical harm to its employees by permitting employees to ride the tines of a forklift up to an 11-foot high scaffold (item 1); 29 C.F.R. § 1926.451(a)(4) for failure to install midrails on the sides of a wrecking scaffold (item 2a); 29 C.F.R. § 1926.451(a)(15) for failure to securely and rigidly brace the legs of the scaffold to prevent swaying or displacement (item 2b); 29 C.F.R. § 1926.451(a)(8) for failure to repair or replace damaged or weakened scaffold parts (item 3); and 29 C.F.R. § 1926.550(a)(9) for failure to barricade the swing radius of the rotating superstructure of a crane.  Ceco filed a notice of contest contesting all of the alleged violations on March 19, 1990.  The Secretary filed a complaint against Ceco on May 21, 1990, to which Ceco filed an answer on June 8, 1990.

Ceco agrees with the Secretary that it is engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 ("Act") and that the Review Commission has jurisdiction of this action (Ceco's answer, pg. 3).  Ceco asserts a number of affirmative defenses to the Secretary's charges, including the unpreventable employee misconduct defense and the greater hazard defense.

Item 1

Section 5(a)(1)

Section 5(a)(1) of the Act provides:

(a)  Each employer--(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

To establish a violation of section 5(a)(1), the Secretary must prove by a preponderance of the evidence (1) that the employer failed to render its workplace free from a hazard which was (2) recognized, (3) the occurrence of an incident was reasonably foreseeable, and (4) the likely consequence in the event of an accident was death or serious physical harm to its employees.  Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1981 CCH OSHD ¶ 25,470 (No. 76-1174, 1981); Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1981 CCH OSHD ¶ 25,363 (No. 76-450, 1981); Beaird-Poulan, A division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶ 23,493 (No. 12600, 1979).  The Secretary must also show that there was a feasible means of abating the hazard.  National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Cormier Well Service, 76 OSAHRC 45/B12, 4 BNA OSHC 1085, 1975-76 CCH OSHD ¶ 20,583 (No. 8123, 1976).

On the day of the inspection, two of Ceco's employees were stripping form work from the overhead level on the bottom floor of the parking garage.  To do this, they were working from a wrecking (also referred to as a "stripping") scaffold platform (Tr. 11, 13). The scaffold was 11 feet high above a concrete surface (Tr. 17).  No ladder was in sight (Tr. 20).  When Leek asked the two employees how they gained access to the scaffold, they informed him they rode the tines of a forklift to the scaffold (Tr. 13).  A fall from the height of 11 feet onto a concrete floor below could result in fractures, broken bones or other serious injury (Tr. 21-22).

Ceco's foreman, Melvin Turner, was on the site that day, a couple of floors above the bottom floor.  Although he did not observe the employees riding the tines of the forklift to the scaffold on the day of the inspection, Turner had observed an employee do so at the beginning of the project (Tr. 191).

A feasible method of abatement was to provide a ladder for access to the scaffold.  A ladder was present on the premises and was produced within a couple of minutes of Leek's pointing out the need for one (Tr. 16, 18, 21).  Another feasible method of abatement is to attach a basket with rails to the tines of the forklift (Tr. 18).

Ceco argues that the Secretary's citing of section 5(a)(1), the Act's general duty clause, is inappropriate because specific standards apply.  An applicable standard preempts application of the general duty clause.  Armstrong Cork Co., 80 OSAHRC 16/D4, 8 BNA OSHC 1070, 1980 CCH OSHD ¶ 24,273 (No. 76-2777, 1980); Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975-76 CCH OSHD ¶ 20,361 (No. 6415, 1976); Sun Shipbuilding and Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973-74 CCH OSHD ¶ 16,725 (No. 161, 1973); Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD ¶ 24,146 (No. 76-2044, 1979).

Ceco contends that two specific standards applied to the situation: § 1926.450(a)(1), which provides:

Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

The second standard, § 1926.451(a)(13), provides:

An access ladder or equivalent safe access shall be provided.

These two standards relate to gaining safe access to scaffolds by the use of ladders or "equivalent safe access."  The hazard they address is falling from a scaffold.  The citation for the violation of § 5(a)(1) charges that Ceco's employees were exposed to "[t]he hazard of falls where employees stood on the forks of the . . . forklift to gain access to the 11-foot high wrecking scaffold."  In order for a specific standard to preempt the general duty clause, the standard must be addressed to the particular hazard for which the employer has been cited under the general duty clause.  Armstrong Cork Co., supra; United States Pipe and Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD ¶ 22,514 (No. 11739, 1978).  A section 5(a)(1) allegation will not be vacated where the hazards presented are interrelated and not entirely covered by any single standard.   Ted Wilkerson. Inc., supra; Crescent Erection Co., 76 OSAHRC 93/A2, 5 BNA OSHC 1711, 1976-77 CCH OSHD ¶ 20,955 (No. 2159, 1977).

The standards that Ceco cites as preempting the § 5(a)(1) charge do not address the hazard of riding the tines of a forklift.  The fact that the employees were riding the tines to get to the scaffold is interrelated with § 1926.450(a)(1) and § 1926.451(a)(13), but it is not entirely covered by them.   The general duty clause in this case is not, therefore, preempted by more specific standards.

Ceco also argues that any violation of § 5(a)(1) was the result of unpreventable employee misconduct.  In order to establish this defense, the employer must show that the action of its employee represented a departure from a work rule that the employer had uniformly and effectively communicated and enforced.  H. B. Zachry, 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981).

"Specific safety instructions and work rules concerning particular hazards that may be encountered on the job are the essential foundations of an adequate safety program."  Paul Betty d/b/a Betty Brothers, 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHD ¶ 25,219, p. 31,151 (No. 76-4271, 1981).   Ceco claims that it had written safety rules which addressed the prohibited riding of forklift tines to gain access to scaffolds.  Ceco offered exhibits R-2 and R-7, neither of which contain rules specifically addressed to this hazard.  Ceco held regular weekly jobsite meetings where safety rules were discussed (Tr. 90-91, 102, 155, 178-179).  Riding the tines of a forklift was not specifically discussed.   "An employer cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning dangerous working conditions."   Id.

Ceco also contends that it had a graduated disciplinary system which it enforced against the employees who rode the tines.   While the record reflects these employees were issued written reprimands (Exs. R-3, R-4) after the event was called to respondent's attention, there is no evidence that similar action had occurred prior to the inspection.  Moreover, as the Secretary points out, these employees also violated a written work rule requiring them to tie off while on the scaffold and were not disciplined for this violation. Roy Creel, the field manager for the Birmingham District, stated that he would have reprimanded the two for not tying off had he been there (Tr. 160).  Charles McEachern, manager of safety and labor relations, stated that had he been present at the site, he would have fired the two employees who rode the tines, and would have reprimanded the forklift operator who was not disciplined at all (Tr. 183).

The record reflects that Ceco's disciplinary program was applied inconsistently and was ineffectual to enforce obedience to its rules. Furthermore, Ceco had not communicated to its employees that riding the tines of the forklift was prohibited.  Ceco was in violation of section 5(a)(1).

Item 2

29 C.F.R. §§ 1926.451(a)(4) and (a)(15)

Section 1926.451(a)(4) provides:

(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.

Section 1926.451(a)(15) provides:

(15) The poles, legs, or uprights of scaffolds shall be plumb, and securely and rigidly braced to prevent swaying and displacement.

Items 2a and 2b were grouped together because they both relate to the wrecking scaffold.  The employees were standing on the scaffold to remove formwork from the level overhead.  They were removing four by eight sheets of plywood and beam sides and handing them down to employees on the floor.   It is undisputed that the scaffold did not have a midrail or a toeboard (Exs. C-1, C-2, C-3; Tr. 25-27).

The scaffold was 16 feet by 16 feet, supported by four Ellis shores.  The scaffold platform extended four feet beyond the supports (Exs. C-3, C-4; Tr. 27- 28).  The scaffold had one by four cross bracing and was set in a farm wagon mounted on rubber wheels (Tr. 28, 33).

Ceco claimed that it had removed the midrail from the scaffold because it made it easier to pass down the plywood that the employees were removing (Tr. 113).  Dewey Allen, Ceco's project manager, testified that removing the plywood with the midrails in place was not impossible but that "it would be a whole lot easier without the midrail" (Tr. 138).

The plywood was handed down from the scaffold on only one side at a time.  All four sides of the scaffold platform were without midrails (Exs. C-1, C-2).  There is no justification for not guarding at least three sides of the platform.  Ceco decided not to use midrails because it found it inconvenient to do so.  This is not an excuse for disregarding the requirements of the standards.

Ceco's employees worked right at the edge of the platform when lowering the plywood onto the floor (Tr. 31, 41, 139).  They were not tied off, even though Ceco had a written safety rule stating they were to be tied off when working above six feet with no midrail (Tr. 132, 144, 155).  Employees could have fallen through the gap created by the absence of the midrail (Tr. 27).  Ceco was in violation of § 1926.451(a)(4).

Leek observed the scaffold swaying 8 to 12 inches (Tr. 27).  Dewey Allen attributed the swaying of the platform to the "sponginess" of the under-inflated tires (Tr. 112).  He also stated that "a certain amount of hang-over" of the platform over the base contributed to the swaying (Tr. 133).  This court fully credits Leek's observations and conclusion that the conditions of the scaffold created a dangerous potential for sway.  The hazard presented by the swaying of the scaffold was falls from a height of 11 feet onto a concrete floor (Tr. 36).  Ceco was in violation of § 1926.451(a)(15).

Item 3

29 C.F.R. § 1926.451(a)(8)

Section 1926.451(a)(8) provides:

(8) Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc., damaged or weakened from any cause shall be immediately repaired or replaced.

This court also fully credits Leek's testimony that the scaffold was leaning, damaged and weakened.  Nails were pulling out of brackets on the scaffold (Exs. C-6, C-7; Tr. 45-47).  The top rail was not adequate to protect employees in the event they were to fall against it.  A fall from the scaffold would most likely result in fractures at a minimum (Tr. 47-48). Ceco was in violation of § 1926.451(a)(8).

Ceco lists seven grounds why the three items relating to the wrecking scaffold should be vacated (Ceco's Brief, pgs. 9-10). All of these grounds are without merit for the following reasons:

(a) There is no proof the wrecking scaffold is in excess of 10 feet.  This is a puzzling assertion.  Leek testified without contradiction that the scaffold platform was measured at 11 feet.  Ceco bases its assertion on this portion of Leek's testimony: "It was measured at eleven feet and verified by--by the person that measured it and---and I'm pretty sure, as I recall, it was Mr. Turner" (Tr. 17).  Leek's wording in no way detracts from the credibility of his statement.  Nowhere in the record is the 11-foot measurement disputed.

(b) Leek did not get up on the scaffold or test the guardrail.  Ceco erroneously believes that this undermines Leek's opinion regarding the state of the scaffold.  On the contrary, it would have been irresponsible for Leek to have gotten up on the scaffold after observing its lack of midrails, and damaged condition.  OSHA expects its employees to be as concerned with their own safety as they are with the safety of the working men and women they seek to protect.

(c) Four Ceco employees all testified it was built per design, and they would work from it.  Ceco here refers to Melvin Turner, Dewey Allen, Roy Creek, and Charles McEachern, all of whom are supervisory personnel.  The fact that these employees said they would work from the scaffold is not probative evidence of a safe scaffold.  Leek's testimony regarding the condition of the scaffold is more credible than the self-serving statements of Ceco's supervisors.

(d) The scaffold was at 11 feet for only a brief period of time.  This is irrelevant as to whether violations of the standard were committed.  The Secretary established that two Ceco employees were exposed to an 11-foot fall.

(e) A midrail would stop all operations.   This statement is not supported by the record.  As previously mentioned, the use of a midrail at the point where the boards were passed down to the floor would not prevent this operator but merely make it less convenient to the crew.  Moreover, no plausible reason was given why all four midrails were missing.

(f) Ceco has safety rules dealing with falls and poorly constructed scaffolds.  Any rules Ceco had relating to the violations at issue were not enforced as evidenced by the condition of the scaffold in question.

Item 4

29 C.F.R. § 1926.550(a)(9)

Section 1926.550(a)(9) provides:

(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

Leek observed a crane located outside of the opening where Ceco's employees, as well as the employees of other contractors, entered and exited the work site.  The crane was operating at the time Leek observed it (Tr. 50-52).  Leek observed one person, whom he could not identify, go past the crane (Tr. 60-61).  The crane did not operate in the mornings or the evenings when Ceco's employees were coming to and leaving from work.  The employees generally did not leave the work site for lunch or other breaks (Tr. 189-190).  The crane was not stationary but moved up and down a path (Tr. 53).

The Secretary has failed to establish that any Ceco employees were exposed to the swing radius of the crane's superstructure.  Ceco was not in violation of § 1926.550(a)(9).

Classification of Penalties

The Secretary contends that the violations of §§ 5(a)(1), 1926.451(a)(4), 1926.451(a)(15), and 1926.451(a)(8) were serious within the meaning of section 17(k) of the Act.  The definition of a serious violation contains two elements:  (1) hazard and (2) knowledge. A hazard exists where there is substantial probability that death or serious physical harm could result from the condition in question. The Secretary need not prove that an accident is probable, it is sufficient if an accident is possible, and its probable result would be serious injury or death.  Brown & Root, Inc. Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ¶ 24,275 (No. 76-3942, 1980).

The Secretary must also prove that the employer knew or with the exercise of reasonable diligence should have known of the existence of the violation.  The knowledge element is directed to the physical conditions which constitute a violation.  Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 141/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ¶ 21,582 d(No. 12174, 1977).   It is difficult for an employer to prevail on the defense that he had no knowledge of the violation since he has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence.  Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶ 25,129 (No. 76-4627, 1981).

The two employees who rode the tines of the forklift to gain access to the scaffold, and who then worked on the unsafe scaffold, were exposed to falls of 11 feet onto a concrete floor.  At the least, the employees could expect to suffer fractures.  The Secretary has established serious violations of the cited standards.

Penalties

The Commission is the final arbiter of penalties in all contested cases.  Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).  Under 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty.  The gravity of the offense is the principal factor to be considered. Nacirema-Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).

Upon due consideration of the penalty factors, it is determined that the Secretary's proposed penalties are appropriate.  Ceco is assessed a penalty of $450.00 for item 1, a total penalty of $450.00 for items 2a and 2b, and a penalty of $450.00 for item 3.

The foregoing decision constitutes the findings of facts and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is hereby ORDERED:

1. That item 1 of Citation No. 1 is affirmed and a penalty of $450.00 is assessed.

2. That item 2a of Citation No. 1 is affirmed.

3. That item 2b of Citation No. 1 is affirmed and a total penalty of $450.00 for item 2 is assessed.

4. That item 3 of Citation No. 1 is affirmed and a penalty of $450.00 is assessed.

5. That item 4 of Citation No. 1 is vacated.

EDWIN G. SALYERS
Judge

Date: February 19, 1991