UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

October 7, 1977

DECISION

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

The respondent, Combustion Engineering, Inc., was cited for noncompliance with the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., while doing metal repair work at an electrical generating plant. Combustion contested items 1, 5, and 8 of a nonserious citation and also a citation for a serious violation. The Judge below affirmed these violations. That decision, which is before the Commission pursuant to a direction for review under 29 U.S.C. § 661(i), is affirmed.

Nonserious Citation

Item 1 alleges that Combustion violated 29 C.F.R. §1926.451(k)(8)1 in that two of its employees working on a suspension scaffold were using safety belts tied off ‘to the same lifeline’ which was angled over the sharp edge of a pipe chase. The Secretary contended that each employee should have been tied off to a separate lifeline and that the pipe chase support for the lifeline was unsafe.

The Judge held that § 1926.451(i)(8) does not require that each employee be tied off to a separate lifeline. He affirmed the violation, however, finding that the danger created by the sharp edge of the pipe chase ‘clearly reduced the lifeline’s capability to safely suspend employees.’

  Combustion seeks reversal claiming that the charged standard does not apply to pipe chases and that the evidence does not establish that the use of the pipe chases was unsafe. Combustion also argues that, if the standard is applicable, the Secretary failed to establish that it had knowledge of the violative condition. The Judge properly rejected each of these contentions in his decision. The Commission therefore adopts his findings on these matters.

Section 1926.451(i)(8) requires that lifelines be securely attached to substantial members of the structure which will safety suspend employees in case of a fall. The pipe chase was part of the structure and Combustion’s superintended conceded that the pipe chase’s sharp edge could cut the lifeline. Knowledge of the violative condition was established by the superintendent’s testimony that this use of pipe chases by Combustion was common. See, e.g., Alder Electric Company, Inc., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977 78 CCH OSHD para. 21,748 (No. 13573, 1977).

Item 5 asserts that Combustion violated 29 C.F.R. § 1926.450(a)(1) because of the failure of its employees to use ladders to gain safe access at two locations. During the inspection, the Secretary’s inspector observed a violation by one employee at a penthouse. The inspector was told of similar violations by other employees at a preheater duct.

The Judge concluded that Combustion did not comply with the requirements of the cited standard and affirmed the violation. Combustion seeks reversal claiming it had no knowledge of the cited conditions. Furthermore, it contends that the violation at the preheater duct should be vacated because the inspector did not observe it. In support of these contentions, Combustion relies on paragraph D, chapter X, of the Secretary’s Field Operations Manual, which prohibits the issuance of a citation under such circumstances.

Combustion’s contentions are rejected. It had constructive knowledge of its employees’ violative conduct. The violative conditions existed days before the inspection; numerous employees gained access to elevations without the use of a ladder. In addition, there is no evidence as to the supervision of personnel concerning safety matters, Combustion’s efforts to discover the violative conditions, and disciplinary measures taken upon such discovery. See, e.g., B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976 77 CCH OSHD para. 20,744 (No. 4713, 1976); Ocean Electric Corporation, 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1976 77 CCH OSHD para. 20,167 (No. 5811, 1975), appeal docketed, No. 76 1060, 4th Cir., January 16, 1976.

The Commission recently addressed the significance of the Secretary’s Field Operations Manual in FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977 78 CCH OSHD para. 22,060 (No. 13155, 1977), and held that:

[T]he guidelines provided by the manual are plainly for internal application to promote efficiency and not to create an administrative straightjacket. They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals.

Noncompliance with instructions in the manual is therefore not a basis for invalidating a citation.

Item 8 alleges a failure to comply with 29 C.F.R. § 1926.451(k)(9) by two of Combustion’s employees who, although using safety belts, were in a ‘sky cage’ on a scaffold that had no midrails. The Judge concluded that although there was a technical violation, it was de minimis because the employees were adequately protected from a fall by the use of safety belts. Combustion contends that there is no violation because there was no hazard.

  Since the Judge classified the violation as de minimis, Combustion is not specifically prejudiced by the Judge’s finding. There is no penalty assessment nor abatement requirement, and the violation cannot be used in future proceedings as evidence of a history of previous violations.2 Under these circumstances the Commission declines to pass upon, modify, or change the Judge’s finding. Westburne Drilling, Inc., 77 OSAHRC 79/C11, 5 BNA OSHC 1457, 1977 78 CCH OSHD para. 21,814, (No. 15631, 1977).

Serious Citation

This citation avers that Combustion violated 29 C.F.R. § 1926.28(a) by permitting its employees to work on top of unguarded ductwork without safety belts, lanyards or lifelines. The evidence establishes that an employee, who was hired to do a specific job for only a few days, was assigned to work on the ductwork by Combustion’s foreman. The employee was not instructed, however, to wear any personal protective equipment. The Judge concluded that Combustion provided personal protective equipment for its employees but had not ensured that it was used. Although Combustion had issued instructions to its employees regarding safety practices, he properly concluded that there was no effectively enforced workrule for the cited area.

Combustion contends that the Judge erred in affirming the citation because:

(1) The inspection did not observe the violation.

(2) Combustion had no knowledge of the violative condition and the conduct of the temporary employee was an isolated incident.

(3) The Secretary did not prove that demonstrably feasible methods would have reduced the likelihood of the employee’s misconduct.

(4) The Secretary did not specify the steps that Combustion should have taken to avoid citation and the feasibility and likely utility of those measures.

These contentions are rejected.

As discussed above in regard to item 5 of the nonserious citation, a citation may be affirmed even though the inspector did not observe the violation. The Commission’s holding there is equally applicable to the identical contention on this citation. Combustion’s constructive knowledge of the violative condition is established by evidence showing that it could have known of that condition by the exercise of reasonable diligence. Generalized safety instructions and the providing of personal protective equipment does not equate to reasonable diligence. To avoid liability under the Act on the basis of lack of knowledge or an isolated incident defense, an employer must effectively communicate to his employees and uniformly and effectively enforce specific safety instructions and workrules that are addressed to the hazards peculiar to the job being performed. See, e.g., Enfield’s Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977 78 CCH OSHD para. 21,607 (No. 9118, 1877); The Weatherhead Company, 76 OSAHRC 61/E7, 4 BNA OSHC 1296, 1976 77 CCH OSHD para. 20,784 (No. 8862, 1976). There is no evidence of such action by Combustion in this case. Moreover, the inadequacy of its safety program is illustrated by the failure of Combustion to instruct its employee to use personal protective equipment upon assigning him work in a dangerous location.

Combustion’s contention that the Secretary has the burden to show ‘measures the Employer could have taken [that] would have materially reduced the employee’s misconduct’ is a misconception as to what is the Secretary’s burden of proof in order to establish a violation of 29 C.F.R. § 1926.28(a). He does not have to show ways that the employer could have prevented the employee’s misconduct. Briscoe/Arace/Conduit, a Joint Venture, 77 OSAHRC 35/C13, 5 BNA OSHC 1167, 1977 78 CCH OSHD para. 21,631 (No. 12135, 1977); B-G Maintenance Management, Inc., supra. A divided Commission has held, however, that the Secretary must allege and prove the feasibility and utility of the particular type of personal protective equipment he contends the employer should have used. M. K. Binkley Construction Co., 77 OSAHRC 79/F7; 5 BNA OSHC 1411, 1977 78 CCH OSHD para. 21,823 (No. 12876, 1977); Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976 77 CCH OSHD para. 21,162 (No. 7792, 1976).

Here, in the citation the Secretary described the alleged violation as the failure of the employees to wear safety belts, lanyards, or lifelines. The testimony of the inspector that safety belts and lanyards were ‘the appropriate equipment to be used’ is undisputed. Also, Combustion’s project superintendent admitted to the inspector that abatement of the violation could be achieved, and the superintendent’s testimony implies that the use of safety belts was feasible. Obviously, the first step that Combustion should have taken to avoid citation was to instruct its employee to use a safety belt, but it failed to do so. Considering the content of the citation and complaint in conjunction with the aforementioned evidence, the Commission concludes that the Secretary satisfied his burden of proof.

The Judge’s decision is affirmed.

FOR THE COMMISSION

William S. McLaughlin

Executive Secretary

DATED: OCT 7, 1977

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 14, 1976

APPEARANCES:

Marshall P. Salzman, Esq. U. S. Department of Labor, Office of the Solicitor,

3247 Federal Building,

300 North Los Angeles St.,

Los Angeles, Ca. 90012

For the Complainant

John W. Susen, Esq. Combustion Engineering, Inc.

1000 Prospect Hill Road,

Windsor, Connecticut 06095

For the Respondent

DECISION AND ORDER

Cronin, Judge, OSHRC:

This is a proceeding under Section 10 of Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., hereinafter called the Act) involving an inspection of a respondent worksite at the Navajo Generating Station, Page, Arizona on April 16, 1976. As a result of this inspection, two Citations were issued to respondent on April 22, 1976. On May 9, 1976, respondent filed a timely notice of contest to three alleged ‘non-serious’ violations of the Act, Item Nos. 1, 5 and 8 of Citation No. 1, as well as the respective proposed penalties of $45., $45. and o, and the alleged ‘serious’ violation of Item No. 1 of Citation No. 2 and its proposed penalty of $600.00.

The alleged violation of § 1926.451(k)(3) (Item No. 1) was described in the citation as follows:

‘Single point suspension scaffolds in Unit #1 boiler had employees exposed to a falling hazard by attachment of two employees to the same lifeline and lifelines were angled into pipe chases at securement points.’

The Secretary alleged this violation in his complaint as follows:

‘On April 16, 1976, respondent violated the standard set forth at 29 C.F.R. 1926.451(k)(8), in that respondent permitted its employees to work on a single point suspension scaffold in Unit #1 boiler which had suspension methods not in conformance with 1926.451(i)(8) in that two employees working on the scaffold were attached to the same lifeline, and the lifelines were angled into pipe chases at securement points.’

Standard § 1926.451(k)(8), as promulgated by the Secretary of Labor, provides:

‘(8) Suspension methods shall conform to applicable provisions of paragraphs (h) and (i) of this section.’

Standard § 1926.451(i)(8), as promulgated by the Secretary of Labor, provides:

‘On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall be protected by an approved safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the employee in case of a fall. In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be approximately changed as the work progresses.’

The alleged violation of § 1926.450(a)(1) (Item No. 5) was described in the Citation as follows:

‘In the absence of permanent or temporary stairways, or suitable ramps or runways, there were no ladders provided for safe access to the following locations on Unit #1:

1. Inside southwest access manhole in side of penthouse to top over firebox. Horizontal strap iron used which was welded on one end only.

2. From level 22, underneath side of air preheater to access manhole above duct, employees were using channel iron wall stiffness as climbing access means.’

Standard § 1926.450(a)(1), as promulgated by the Secretary of Labor, provides:

‘(a) General requirements

(1) 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 alleged violation of § 1926.451(k)(9) (Item No. 8) was described in the Citation as follows:

‘Single point suspension scaffolds in Unit #1 boiler were not completely enclosed with top guardrails, midrails and toeboards. Midrails were missing on two sides. Employees exposed to hazard of falling.’

Standard § 1926.451(k)(9), as promulgated by the Secretary of Labor, provides:

‘(9) Guards, midrails, and toeboards shall completely enclose the cage or basket. Guardrails shall be no less than 2 x 4 inches or the equivalent, approximately 42 inches above the platform. Midrails shall be 1 x 6 inches or the equivalent, installed equidistant between the guardrail and the platform. Toeboards shall be a minimum of 4 inches in height.’

The alleged violation of § 1926.28(a) was described in Citation No. 2 as follows:

‘Employees were working on top of unguarded ductwork to air preheat system without safety belts, lanyards or lifelines, above level 22. Employees exposed to hazard of falling.

Standard § 1926.28(a), as promulgated by the Secretary of Labor, provides:

‘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 hearing in this matter took place at Phoenix, Arizona on September 9, 1976, and both parties filed post-hearing briefs.

Jurisdiction and Issues

The respondent which maintains offices at Windsor, Connecticut, does not contest Commission Jurisdiction and the only issues to be determined are:

(1) Whether the respondent was in violation of the standards cited on the dates alleged in the amended complaint?

(2) If violations were committed as alleged, what penalties are appropriate?

(3) Whether the issue of an alleged violation of § 1926.104(c) was tried by the express or complied consent of the parties within the meaning of Rule 15(b) of Federal Rules of Civil Procedure?

Discussion

1. Item 1—Citation 1—§ 1926.451(k)(8).

A violation is affirmed because the lifeline was not ‘securely attached’ to substantial members of the structure or to securely rigged lines as required by § 1926.451(i)(8).

Standard § 1926.451(i)(8), however, is not interpreted to require that a separate lifeline be used for each employee as contended by the complainant. While agreeing that a reasonable interpretation of the standard requires each employee to have his own safety belt, this Judge disagrees with his contention that the standard requires each employee to be attached to a separate lifeline. As the Secretary’s representative acknowledges in his brief, the standard does not specifically prohibit the attachment of two employees to one lifeline; neither does it specifically nor by implication require a separate lifeline for each employee.

Respondent correctly reads this provision of the standard to require only that the lifeline or lifelines provided must be capable of supporting the attached employee or employees in the event of a fall.

The record reflects that both employees had safety belts and were attached to a 3/4-inch lifeline by means of separate lanyards. Because this lifeline was characterized as ‘normal’ by the compliance officer it is reasonable to conclude that it had a minimum breaking strength of 5400 pounds as required by § 1926.104(c). Also, there was no evidence that the safety belts in use were not ‘approved.’ On this evidence respondent cannot be found in violation of the requirement that ‘[e]ach employee shall be protected by an approved safety life belt attached to a lifeline.’

The Secretary makes a further contention, however, that respondent violated another part of the same standard which reads:

‘The lifeline shall be securely attached to substantial members of the structure (not scaffolds) or to securely rigged lines which will safely suspend the employee in case of a fall.’ (emphasis added)

There was unrefuted evidence that the lifeline was angled over a sharp edge of a pipe chase which was capable of abrading and cutting through the lifeline (Tr. 32, 42, 63). Therefore, the lifeline was not attached in a safe manner as required by the standard.3 Plainly, the pipe chase’s abrasive cutting edge created a danger that might cause the lifeline to fail and give way; and the presence of this danger clearly reduced the lifeline’s capability to safely suspend employees.

Respondent also contends, however, that even assuming a violative condition, the Secretary failed to prove that respondent knew, or should have known, of the alleged violation. In support of its position it cites Brennan v. OSHRC and Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975). This Judge believes that respondent’s reliance on this decision is misplaced.

Respondent is solely responsible for ‘securely’ attaching its lifelines and it has adopted the practice of ‘constantly’ using pipe chases when attaching lifelines. With this practice, of course, goes the duty of ascertaining the condition of the pipe chases. Obviously, whichever employee was assigned by respondent the task of attaching the lifeline in question, he failed to carry out this duty; and it was this failure that resulted in attaching the lifeline in an unsafe manner. Under these circumstances, a prima facie case of respondent’s knowledge of its own acts of omission was established. See Brennan v. OSHRC and Alsea Lumber Company, supra, at note 5.

2. The issue of whether there was a violation of § 1926.104(c) was not tried by the express or implied consent of the parties within the meaning of Fed. R. Civ. P. 15(b).

There was uncontroverted proof in the record that the lifeline was a 3/4-inch line rather than ‘a minimum 7/8-inch wire core manila rope’ and that the lifeline was being used where the lifeline could be subjected to cutting or abrasion. Consequently, the parties were requested by this Judge after the close of the hearing to comment on whether the evidence established a violation of § 1926.104(c), and if so, whether an amendment to conform to the evidence under Rule 15(b) of the Fed. R. Civ. P would be appropriate?

In response, the Secretary expressed the view in his brief that this standard was not applicable to respondent’s situation. Thus, whether this view is correct or not, it is clear that the issue of whether § 1926.104(c) was violated by respondent was not litigated with the consent of the Secretary.

Moreover, the evidence concerning the lifeline’s capability and how it was attached was relevant to issues already in the case; namely, whether the lifeline was securely attached and whether it was capable of safely suspending the two employee in event of a fall. Also, there was no indication at the hearing that the introduction of this evidence by either party was for the purpose of raising a new issue (possible violation of § 1926.104(c)). Thus, respondent also cannot realistically be found to have given its express or implied consent to the trial of that issue.

Because the issue of an alleged violation of § 1926.104(c) was not tried expressly or impliedly by the parties, it cannot be treated as if it had been raised in the pleadings.

Although the foregoing discussion appears academic in view of this Judge’s affirmance of a violation of § 1926.451(i)(8), it may become relevant if the Commission were to decide on review that the record did not establish a violation of § 1926.451(i)(8).

3. Item 5—Citation 1.—§ 1926.450(a)(1)

Respondent failed to use a ladder to give its employees safe access to the ‘penthouse’ floor on April 16, 1976; and at times prior thereto, no ladder was used for safe access to the preheater duct at level 22. These failures constitute instances of a violation of § 1926.450(a)(1).

The sole means of access provided employees on April 16, 1976, to the ‘penthouse’ floor, which was 54 inches below the penthouse door opening, was by means of a single iron strap welded onto a steel column approximately 30 inches down from the opening (Tr. 16–18; Exhibit C–9). No ladder was being used and two of respondent employees were observed by the compliance officer using the strap as a means of access (Tr. 17–18, 39). This clearly constitutes non-compliance with § 1926.450(a)(1).

Access on April 16, 1976, to the work area on the preheater duct at level 22 was provided by a ladder (Tr. 18–19). However, sometime during the three or four day period prior to April 16, 1976, access, to the top of the duct, which was 32 feet 8-inches above ground level, was achieved without a ladder by employees climbing 6-inch horizontal channel irons welded on the metal walls of the preheater as stiffeners (Tr. 21–22, 57–58). The failure to use a ladder for access on that occasion also is a violation of § 1926.450(a)(1).

The respondent in defense contends that this second alleged incident of violation is ‘faulty’ and requires dismissal due to the compliance officer’s failure to follow the Secretary’s direction in his Field Operations Manual not to cite violations not actually observed. This Judge disagrees.

The Secretary of Labor is broadly authorized to make ‘inspections’ and ‘investigations’ by section 8(a) of the Act. Although there are some limitations imposed on this authority by Congress, such as that inspections and investigations are required to be made ‘within reasonable limits and in a reasonable manner’, the exercise of this authority is largely left to the Secretary’s discretion. More importantly, however, from the standpoint of the present discussion, there is no restriction or even suggestion in the Act that citations shall issue only if violative conditions are observed by a compliance officer.

As pointed out by respondent in its brief, the Secretary has issued a general instruction to compliance officers which appears to limit their enforcement authority, except under special circumstances, to situations where violative conditions are actually observed by a compliance officer. This rule of general application which appears at Chapter X–D 1. of the Field Operations Manual provides:

‘General.’. Working conditions that allegedly violate the OSHA safety and health standards or the general duty clause to which employees are actually or potentially exposed, shall be cited only when observed by a CSHO during an inspection. This general rule shall apply except in special circumstances such as the following.’ (Manual, supra, P. x–8)

The manual thereafter sets forth certain so-called ‘special circumstances’ which make the rule inapplicable. Contrary to respondent’s position, however, these ‘special circumstances’ obviously were not intended by the Secretary to be exclusive, but merely examples; otherwise, the Secretary would not have used the phrase, ‘such as the following.’

But even assuming that these described ‘special circumstances’ are exclusive and that the issuance of the citation in this case was contrary to the Secretary’s directions to his compliance officers, this Judge would not be empowered to declare the citation defective and vacate it. The Secretary’s Field Operations Manual does not constitute a regulation having the force of a law. It is an internal directive and non-compliance with its instructions is not a ground for invalidating a citation. As long as there is valid statutory authority for conducting an inspection or investigation and it is properly conducted, the issuance of a citation based on such an inspection or investigation must be upheld See Secretary v. Aluminum Coil Anodizing Corporation, Docket No. 829; IBNA OSHC 1508 (1974).

4. Item 8—Citation No. 1.—§ 1926.451(k)(9)

A respondent scaffold or ‘sky cage’ did not have any midrails in violation of the requirements of § 1926.451(k)(9). Two respondent employees attached to a lifeline by means of safety belts and lanyards were working in a sky cage that measured approximately 30 by 36 inches, and in the compliance officer’s opinion it would have been ‘very difficult’ for either of the men to fall out.

Although respondent’s scaffold was not in literal compliance with the standard, this Judge would characterize the violation as de minimus rather than ‘NON SERIOUS’ because it had only a negligible relationship to safety and health. Under the observed conditions the two employees were adequately protected against falling and the Secretary should have issued a notice in lieu of a citation for this violation. Accordingly, Item 8 is modified to de minimus and will be affirmed as modified. See generally, Secretary v. National Rolling Mills Company, Docket No. 7987, (September 21, 1976)

5. Citation No. 2—Alleged ‘SERIOUS’ violation of § 1926.28(a). § 1926.28a).

Respondent did not require its employee, Gus Albert Wade to use a safety belt attached to a lifeline while welding on top of a duct approximately 32 feet, 8 inches above the ground on April 12th and 13th, 1976 as mandated by § 1926.28(a).

Mr. Wade was assigned to weld on the duct by respondent’s foreman, Slim Filbert, and was not instructed to wear a safety belt. There was no guardrail protection around the edge of this duct and Mr. Wade welded without a safety belt and line. If he had fallen, there was a substantial probability he could have suffered serious physical harm, even death.

With respect to this standard, § 1926.28(a), respondent’s compliance responsibility extends not only to providing safety belts, lanyards and lifelines whenever and wherever necessary but also to making sure that this equipment is used. And it cannot rely on generalized instructions or lectures on ‘safety practices’ or ‘suggestions’ to its employees to accomplish this objective.

The testimony of respondent’s project superintendent on this issue was not persuasive. Although the implication left by his responses to several leading questions is that respondent had required its employees to wear attached safety belts while performing work on the duct, a close reading of his testimony makes plain that he was referring only to respondent’s ‘suggestions to work safely and use the equipment’ (Tr. 64, 58). Certainly, if this had been an effectively enforced respondent work rule for the duct area, respondent’s foreman would have so instructed Mr. Wade when he was assigning him his welding task? This failure is imputable to respondent and requires affirmation of the alleged violation.

Findings of Fact

Upon the credible evidence of record the following facts are found:

1. The single lifeline to which two employees were connected by means of separate lifebelts and lanyards was not securely attached on April 16, 1976, because it was angled over a sharp edge of a pipe chase capable of abrading and cutting through the lifeline.

2. On April 16, 1976, respondent failed to use a ladder to provide two employees safe access to the ‘penthouse’ floor.

3. On at least one occasion during the three or four day period preceding April 16, 1976, respondent failed to use a ladder to provide one of its employees safe access to the top of the preheater duct at level 22. preheater duct at level 22. respondent’s scaffold or ‘sky cage’ was not enclosed by midrails. The two employees working from this scaffold, measuring 30 by 36 inches, were attached to a lifeline, and it would have been ‘very difficult’ for either of the men to fall off.

5. On two days during the four-day period preceding April 16, 1976, respondent did not require one of its employees to wear a safety belt attached to a lifeline while welding on a duct approximately 32 feet 8 inches above ground level. There were no guardrails around the edge of this duct and if he had fallen there was a substantial probability he could have suffered serious physical harm, even death.

Penalties

All record evidence relating to the four factors prescribed by section 17(j) of the Act for assessing penalties, the size of respondent’s business, gravity of the violations, its good faith, and history of prior violations of the Act, have been considered. Respondent apparently has no prior history of violations under the Act and there is nothing in the record to reflect adversely on its good faith.

Due to the fact respondent had approximately 150 employees, it reasonably may be concluded that it is of substantial size.

The record indicates that respondent has provided access ladders and protective equipment for employee use. Unfortunately, however, it has not taken the necessary steps to assure the use of this safety equipment.

With the exception of the safety belt violation, the probability of falls occurring as a result of these violations is considered relatively low. Because Mr. Wade was wearing a welding hood when working on top of the duct, however, this Judge believes that the likelihood of a fall under those conditions was in the moderate range.

Based on all of the above factors, and in order to assure respondent’s future compliance with the standards involved, a penalty of $45.00 each for the two non-serious violations will be assessed. Because the inspection and investigation apparently disclosed only one employee was working without an attached safety belt, this Judge concludes that $200.00 is a reasonable and appropriate penalty for the ‘serious’ violation.

Conclusions of Law

1. On April 16, 1976, respondent was in violation of § 1926.451(k)(8), § 1926.451(i)(8), § 1926.450(a)(1), and § 1926.451(k)(9).

2. Respondent’s violation of § 1926.451(k)(9) was de minimus.

3. Sometime during the four day period preceding April 16, 1976, respondent was in violation of § 1926.450(a)(1) and § 1926.28(a).

4. Respondent’s violation of § 1926.28(a) was ‘serious’ within the meaning of section 17(k) of the Act (29 U.S.C. § 666(j)).

ORDER

Based on the following findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. The alleged violation of § 1926.451(k)(9) is modified to de minimus, and as modified, is AFFIRMED.

2. The alleged violations of § 1926.451(k)(8), § 1926.451(i)(8), § 1926.450(a)(1) and § 1926.28(a), as amended, are AFFIRMED.

3. A penalty of $45.00 each for respondent’s violations of § 1926.451(k)(8) and § 1926.450(a)(1) are ASSESSED.

4. A penalty of $200.00 for respondent’s violation of § 1926.28(a) is ASSESSED.

James A. Cronin Jr.

Judge, OSHRC

Dated: December 14, 1976

1 Section 1926.451(k)(8) incorporates 29 C.F.R. 1926.451(i)(8) by reference. The latter standard provides in pertinent part that:

On suspension scaffolds . . . [e]ach employee shall be protected by an approved safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), which will safely suspend the employee in case of a fall. (Emphasis added.)

2 History of previously violations is one of the criteria specified in 29 U.S.C. § 666(i) for consideration in assessing an appropriate penalty.

3 Neither the Secretary nor Commission is bound by the compliance officer’s contradictory concession that the lifeline was securely attached. (Tr. 34).