BRISK WATERPROOFING COMPANY, INC.  

OSHRC Docket No. 1046

Occupational Safety and Health Review Commission

July 27, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On January 3, 1973, Review Commission Judge Joseph Chodes issued a decision in this case holding, inter alia, that the respondent had violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) by its failure to furnish a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to its employees. n1 He assessed a penalty of $600.   Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

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n1 He also sustained 2 of 4 allegations that respondent was in violation of section 5(a)(2) of the Act and assessed a $600 penalty for the same.   That action is affirmed.

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The stipulated facts of record indicate that three employees of respondent, a corporation engaged in caulking operations, were performing such operations on a building using two types of scaffolds. One scaffold was of a two-point suspension variety, commonly called a "T" type suspension scaffold. It was about 20 feet in length.   The other was a single point suspension scaffold about four feet square.   The scaffolds were placed at an angle to each other and between them was a pylon which separated the scaffolds from each other by at least one foot. It was also stipulated that, as alleged in the citation, an employee of the respondent climbed   from one of the scaffolds to the other and in so doing had to go around the pylon across the open, one-foot area at a height of 18 stories above the ground.   In other words, access to the larger scaffold at the eighteenth floor level was available by stepping from the smaller one across the open area onto the "T" type suspension scaffold.

Based on the foregoing facts, complainant issued a citation to respondent alleging a violation of section 5(a)(1) of the Act, the so-called general duty clause.   This was done even though, as complainant now concedes in his brief, there existed a specific occupational safety and health standard which applied to the fact situation described above.   Nevertheless, complainant argues that despite applicable standards, the citation charging a violation of section 5(a)(1) of the Act should be upheld if the facts establish that a "recognized hazard" did, indeed, exist.   We cannot agree.

Congress clearly stated in section 2(b) that the Act's purpose is to provide safe and healthful working conditions, and in subsection (3) thereof that this purpose is to be effectuated "by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to business . . . ." (emphasis supplied) Further, in subsection (9), it is stated that this purpose is to be carried out "by providing for the development and promulgation of occupational safety and health standards." For the Commission to permit the Secretary to proceed against an employer under section 5(a)(1), when there exists a duly promulgated occupational safety and health standard specifically covering the alleged infraction, would be inconsistent with the overall purpose of the Act, would emasculate all the provisions dealing with the promulgation of standards, and would give a wider effect to the Act's   general duty clause than was ever intended by Congress.

The legislative history of the Act clearly supports this position.   In its report on the Act, the Senate Committee on Labor and Public Welfare made the following comments with respect to the general duty clause:

The committee recognizes that precise standards to cover every conceivable situation will not always exist.   This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune.   Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees . . . .

The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted (emphasis supplied).   S. Rept. No. 91-1282, 91st Cong., 2d Sess. (1970) at 9, 10.

Thus, it was clearly recognized that any   other interpretation of the scope of section 5(a)(1) could lead to a wholesale abandonment of the specific standards in favor of the general duty clause.   In other parts of the legislative history, the shortcomings of a requirement phrased so broadly are conceded.   Reliance upon the general duty clause was discouraged because to do so would provide little advance warning of what specifically is required in order that employers could maintain a safe and healthful workplace. It is our view that the purposes of the Act would be ill served by such a situation.

The principle being asserted here, i.e., that a particular specific standard takes precedence over the general duty clause, is recognized by complainant in his own regulations.   29 C.F.R. 1910.5(c) requires that   a standard specifically applicable to a condition, practice, etc., shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, etc.   While this regulation applies only within the standards themselves, the principle, carried to its logical conclusion, should lead to the application of section 5(a)(2) and the standards in those situations where   there is a choice between charging a violation under the same or under the general duty requirement of section 5(a)(1).   We think the principle is valid, and that the law requires it.

It is the opinion of the Commission that a citation for a violation of section 5(a)(1) is invalid and will not lie, where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act.

In a brief filed with this Commission after review of the Judge's decision was ordered, complainant concedes that it would have been "more technically correct" to have proceeded on the theory that respondent violated section 5(a)(2) by its failure to comply with the occupational safety and health standard published as 29 C.F.R. 1926.451(a)(13) and concludes "that therefore the complaint should be amended to conform to the evidence." He submits that respondent was not unfavorably prejudiced by the citation of a 5(a)(1) violation.

The mentioned standard specifies requirements for the erection of scaffolds, including:

(13) An access ladder or equivalent safe access shall be provided.

In urging an amendment of the citation and   complaint to conform to the evidence complainant apparently relies upon Rule 15(b) of the Federal Rules of Civil Procedure which provides, in pertinent part:

  When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.   Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment . . . .

This rule was intended to promote decisions on the merits of issues and not upon the pleadings.   See, e.g., Iodice v. Calabrese, 345 F., Supp. 248 (D.C./N.Y., 1972).

It appears to us that respondent would not be unduly prejudiced by allowance of this amendment since the issue was framed in the complaint as follows:

. . . the only means of access provided to the "T" type scaffold . . . was from the single point suspension scaffold. The employee was required to climb from the single point suspension scaffold around the outside of the pylon across an open area 18 stories above the ground over the guard rail of the "T" type scaffold and   onto its confines.

We therefore allow the pleadings to be amended as discussed above.

Respondent did not deny the allegations contained in the complaint relating to the safe access to the scaffold, as set forth above, but defended only upon the ground that the absence of same did not constitute a "recognized hazard."

It is clear from the record that no access ladder was provided, nor was any "equivalent safe access" to the scaffold provided.   We must conclude therefore that respondent was in violation of section 5(a)(2) of the Act for a failure to comply with the occupational safety and health standard published as 29 C.F.R. 1926.451(a)(13).

Although we find respondent in violation of a different section of the Act than the Judge, the facts upon which the violation is based are identical.   The $600 penalty assessed by the Judge is similarly appropriate.

  Accordingly, it is ordered that the Judge's decision holding respondent to be in violation of section 5(a)(1) of the Act be modified to show that respondent was in violation of section 5(a)(2) of the Act for noncompliance with the occupational safety and health standard published as 29 C.F.R. 1926.451(a)(13).   In all other pertinent respects, the Judge's decision is affirmed.

[The Judge's decision referred to herein follows]

CHODES, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting two Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citations, which were issued on June 1, 1972, allege that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 1515 Broadway, New York, New York, the Respondent has violated Sections 5(a)(1) and (2) of the Act by failing to furnish its employees a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees and failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.   The standards alleged to have been violated were promulgated by publication in the Federal Register on May 29, 1971, (36 F.R. 10466) and codified in 29 CFR, Part 1910, and 29 CFR, Part 1926. n1

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n1 29 CFR Part 1926 was originally 29 CFR Part 1518 which was adopted by reference into the main body of safety and health standards at 29 CFR 1910.12. 29 CFR Part 1518 was redesignated 29 CFR Part 1926 at 36 F.R. 25232, December 30, 1971.

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  Citation number 1 was issued for a violation of Section 5(a)(1) of the Act (the so-called general duty clause) and charged the Respondent with furnishing a workplace which required its employees to climb from a "T" type scaffold around the outside of pylon across an open area 18 stories above the ground to a single suspension scaffold.

Citation number 2 charged violation of (1) 29 CFR 1910.66(d)(7) for failure to equip powered scaffolds with communication equipment; (2) 29 CFR 1926.451(k)(10) for failure to properly rig a 20-foot work platform; (3) 29 CFR 1926.451(i)(8) for failure to limit the number of employees working on a scaffold to two; and (4) 29 CFR 1926.451(i)(11) for failure to provide guardrails on open sides of a work platform.  

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 1, 1972, from N.A. Snowden, Acting Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the violations alleged, totaling $1400.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at New York, New York, on October 11, 1972.

ITEMS IN CITATION WITHDRAWN BY SECRETARY

1.   The Secretary has withdrawn from consideration that part of Citation number 2 which alleges violation of 29 CFR 1926.451(k)(10) (Complaint paragraph VII).

2.   The Secretary has withdrawn from consideration that part of Citation number 2 which alleges violation   of 29 CFR 1910.66(d)(7) (Stipulation of the parties at page 6 of the transcript).

VIOLATION ADMITTED BY RESPONDENT

The Respondent admitted violation of 29 CFR 1926.451(i)(11) (Complaint paragraph VI (3) admitted by the Respondent's Answer).

AMENDMENT TO CITATION

Citation number 1 was amended at the hearing (T-6) by adding to the Citation the following:  

That the only means of access to the T type scaffold was from the single suspension scaffold.

FACTS STIPULATED

1.   The Respondent is a corporation of the State of New York, with its principle place of business at 720 Grand Street, Ridgefield, New Jersey.

2.   In the conduct of its business, the Respondent receives materials and supplies from several states.

3.   On May 18, 1972, the Respondent was engaged in caulking operations on the building located at 1515 Broadway, New York, New York.

4.   On May 18, 1972, employees of the Respondent climbed from the T type suspension scaffold to the single point suspension scaffold and/or from the single point suspension scaffold to the T type scaffold around the outside pylon across an open space 18 stories above the ground.

5.   On May 18, 1972, three employees of the Respondent were on the T type scaffold, which had a working load of 500 pounds.

  6.   There was no screening on the T type scaffold and there were unguarded portions of this scaffold.

7.   One of the three employees of the Respondent was a supervisor.

8.   The Respondent has a daily average of about 250 employees.

9.   There were no injuries on the job referred to in paragraph 3 above.

10.   The Respondent had no history of any previous violation of safety standards.

DISCUSSION

I.   ALLEGED GENERAL DUTY VIOLATION

The record shows that on May 18, 1972, the Respondent used two scaffolds (a single point suspension scaffold about four feet square and a two point suspension scaffold about 20 feet in length) to perform its work of caulking the northeast pylon of the building at 1515 Broadway, New York, New York.   On the pertinent date, the scaffolds were 18 stories above the ground.   The two point suspension scaffold faced a wall 15 feet in width and the single point suspension was against a three foot wall.   The walls came together at a plateau type point one foot wide forming a "pylon." The two scaffolds were connected across the one foot "corner" of the pylon by an angle iron assembol (T-46).

It was stipulated that, as charged in the Citation, an employee of the Respondent climbed from one of the scaffolds to the other and in doing so had to go around the pylon across an open area of at least one foot at a height of 18 stories above the ground.   While access to and from each scaffold was possible through a window on one of the floors of the building (T-27), it is clear that the practice of the Respondent's employees was to go from one scaffold to the other around the pylon.

  Mr. Edward J. Scott, the compliance officer who inspected the workplace, testified that Mr. McDevitt, the person in charge of the caulking job for the Respondent, and another employee were on the two point suspension scaffold, (T-22).   Mr. Delutri was on the single point suspension scaffold and was helped across by Mr. McDevitt to the two point suspension scaffold (T-26).   This was accomplished by Mr. Delutri without the benefit of a safety belt, he was "going free" (T-21).   Mr. Scott further testified that if Mr. Delutri slipped, tripped, stumbled on the brace, could not reach and get his weight adjusted properly, or there was a gust of wind, he could fall and that if he fell he would be killed (T-21).

Mr. Harold T. Mantel, a consultant to industry and the construction trade, testified (T-72, 73, 74) that even though the employee had to reach around the edge of the platform and the pylon a distance of about two feet to grab a cradle iron, it was his opinion, based on the substantial manner in which the scaffolds were attached to each other and to the building which prevented movement of the scaffolds, the fact that the employee had to step across an open space of only about one foot and that he was able to get a firm grasp on the scaffold he was leaving and the scaffold to which he was stepping, and in view of the experience of the employees doing the caulking for the Respondent, the hazard to the employee was relatively minor.

The structure of the building being worked on was unusual and called for working arrangements different from those on the ordinary job and consequently it would be difficult to establish in advance specific standards for this job which would accomplish the purposes of the law to achieve a reduction in the number and severity of work related injuries and illnesses.   The Senate Committee on Labor and Public Welfare, in its   favorable report on the Occupational Safety and Health Act of 1970 (S. Rept. No. 91-1282, 91st Cong. 2nd Sess. (1970), page 9) made the following comments with respect to the general duty clause:

The committee recognizes that precise standards to cover every conceivable situation will not always exist.   This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune.   Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees.

To establish a violation of the general duty clause (Section 5(a)(1) of the Act), the evidence must establish that the Respondent failed to "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."

The matter for consideration is whether the situation presented in this case constituted a "recognized hazard." The Conference Report on the Occupational Safety and Health Act of 1970 in referring to "recognized hazards" (Congressional Record -- House, December 17, 1970) stated that "Such hazards are the type that can readily be detected on the basis of the basic human senses."

Admittedly, in the instant case, experienced workmen using great   care in maneuvering from one scaffold to the other could, hopefully, avoid an accident over a limited period of time.   However, over the long run, taking into consideration that workmen cannot always avoid slipping or tripping, that on occasion a workman may lose his balance, the unpredictability of the force of wind gusts, and possibly other unforeseeable factors,   it is "likely" that an accident would occur and death or serious physical harm would result.   In the opinion of the Judge, climbing from one scaffold around a pylon to another scaffold, eighteen stories above the ground, represents a "hazard" that can be readily detected by observation.

There is no need to introduce evidence to establish that if a mishap should occur and an employee fell from the scaffold 18 stories above the ground, the consequences would be death or serious physical harm.

II.   ALLEGED VIOLATION OF 29 CFR 1926.451(i)(8)

This standard 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 appropriately changed as the work progresses.

The evidence (T-22, 26, and 32) shows that there were two of Respondent's employees (Mr. McDevitt and Mr. Shanofy) on the two point suspension platform which was designed for 500-pound workload when a third employee (Mr. Delutri) came across from the single point suspension scaffold, making a total of three employees on the two point suspension platform.

The testimony indicates that Mr. Shanofy on the day of inspection was not "working" but rather was "drinking a soda from a can" and that Mr. Delutri and Mr. McDevitt put some tools in a tool box and then took a coffee break (T-26).   The Respondent argues   that since the standard provides that "no more than two men shall be permitted to work at one time " (emphasis supplied), that there is no proof of a violation of this standard because the men were not "working." Considering the purpose of the Act to assure workers safe working conditions, under the circumstances existing in this case it does not matter insofar as safety is concerned whether at any particular moment the employee was actually performing his duties or had paused for a "break." In the context in which the word "work" is used in the standard, it obviously is intended to include short periods during which no actual work is being performed.   Certainly, the employee was "permitted" to work at the time the violation was alleged to have occurred.

The case of Standard Glass Co., Clement Paper Co.,   However, the facts in the instant case are distinguishable in that the Respondent's supervisor participated in the alleged violations and Mr. Brisk had knowledge on behalf of the Respondent of the methods of operation of the Respondent's employees on the job.

III.   PENALTIES

The Complainant proposed penalties of $700, against the Respondent for serious violations on each of the Citations issued, for a total of $1400.   The violations were serious because there was a substantial probability that death or serious physical harm could result from the conditions which existed and/or from the   practices adopted by the Respondent.   It is also discernible from the record that the Respondent knew of the presence of the violation or, with the exercise of reasonable diligence, could have known of the violations.   It was stipulated that one of the three employees on the job was a supervisor who was in charge of the work.   Moreover, Mr. Brisk, the "owner" of the Brisk Waterproofing Co., Inc. (Respondent), was familiar with the caulking work being done on the building at 1515 Broadway, New York, N.Y. (T-43) and that the employees would step from one scaffold to the other (T-46).   Under these circumstances, the Respondent is charged with knowledge of the conditions which constituted the violations alleged against it.   See definition of a serious violation in Section 17(k)   of the Act.

Mr. Scott, the compliance officer, testified that he initially proposed an unadjusted penalty of $1000, for each violation under consideration because of the seriousness of the violation.   This was reduced by 10% for good faith because the Respondent had a safety program but Respondent was not given the maximum allowable for this factor (20% under the guidelines of the Complainant because the safety program was not completely implemented.   A further reduction of 20% was made by reason of the fact that the Respondent had no history of prior violations of the Occupational Safety and Health Act. No reduction in penalty was proposed by reason of the Respondent's size inasmuch as the Respondent had over 100 employees.

The Judge is of the view that the Respondent should be accorded a 20% penalty reduction for good faith.   Mr. Mantel, a safety consultant, testified that his firm was engaged by the Respondent in March, 1972, (prior to the date of the inspection in the instant case) to help Respondent in achieving compliance with the Act (T-66, 67, 68).   He held monthly meetings with the Respondent's   officers and employees and had meetings with individual employees on the job with the view to ascertaining compliance with the Act and for training purposes.   The violations which are the subject of this proceeding were abated immediately by the Respondent at the time of inspection. There appears to be enough evidence of the Respondent's good faith to warrant a reduction in penalty of 20% for this factor.   Other than the reduction in penalty for good faith, the Judge is of the opinion that the penalties proposed by the Complainant are reasonable and appropriate.

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations and briefs of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of facts.

1.   On May 18, 1972, at the building located at 1515 Broadway, New York, N.Y., employees of the Respondent climbed from the T type suspension scaffold to the single point suspension scaffold, and from the single point suspension scaffold to the T type suspension scaffold around the outside pylon across an open space 18 stories above the ground.

2.   On May 18,   1972, an employee of the Respondent, Mr. Delutri, climbed, without a safety belt, from the single point suspension scaffold around the pylon across an open space to the two point suspension scaffold 18 stories above the ground and was helped across by Mr. McDevitt the employee of the Respondent who was in charge of the caulking job.

3.   On May 18, 1972, at 1515 Broadway, New York, N.Y., Respondent did not furnish his employees a   place of employment free from recognized hazards which were likely to cause death or serious physical harm.

4.   On May 18, 1972, at 1515 Broadway, New York, N.Y., the Respondent permitted more than two men, to wit, three men, to work at one time on a suspension scaffold designed for a 500-pound workload.

5.   The Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the violations for which it was cited.

6.   Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the negative history of previous violations, the appropriate penalty for serious violation, referred to in paragraphs 1, 2 and 3, above, is $600.   The appropriate penalty for the serious violation referred to in paragraph 4, above and the serious violation of 29 CFR 1926.451(i)(11) admitted by the Respondent, is $600.

CONCLUSIONS OF LAW

1.   The Respondent is, and at all times material hereto was, engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The Respondent is, and at all times material hereto was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3.   Respondent violated Section 5(a)(1) of the Occupational Safety and Health Act of 1970.

4.   Respondent violated the occupational safety and health standards cited in 29 CFR 1926.451(i)(8) and 29 CFR 1926.451(i)(11).

  5.   Respondent did not violate the Occupational Safety and Health standards set forth in 29 CFR 1926.451(k)(10) and 29 CFR 1910.66(d)(7).

6.   The Respondent is assessed a penalty of $600 for violation of Section 5(1)(a) of the Act and a penalty of $600 for violation of the Occupational Safety and Health standards set forth in 29 CFR 1926.451(i)(8)   and 29 CFR 1926.451(i)(11).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED that

1.   The Citation No. 1 issued on June 1, 1972, for serious violation of Section 5(1)(a) of the Occupational Safety and Health Act of 1970 is affirmed, the penalty proposed by the Complainant is modified, and a penalty of $600 is assessed.

2.   The Citation No. 2 issued on June 1, 1972, insofar as it alleges violation of 29 CFR 1926.451(i)(8) and 29 CFR 1926.451(i)(11), is hereby affirmed, the penalty proposed by the Complainant is modified, and a penalty of $600 is assessed.

3.   The Citation No. 2, dated, June 1, 1972, insofar as it alleges violation of 29 CFR 1926.451(k)(10) and 29 CFR 1910.66(d)(7), and any penalties proposed, is hereby vacated.