H.W. IVEY CONSTRUCTION CO., INC.
OSHRC Docket No. 15464
Occupational Safety and Health Review Commission
April 25, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Charles N. Welsch, Vice President, H.W. Ivey Construction Co., Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's [*2] decision is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
Judge Burroughs correctly decided this case except insofar as he affirmed subitems 1 and 3 of item 1(b) in Citation Number 2, items (a) and (b) of Citation Number 3, and item (a) of Citation Number 5. Subitems 1 and 3 of item 1(b) in Citation Number 2 and item (a) and (b) of Citation Number 3 should be vacated because, with respect to those charges, complainant failed to establish that any of respondent's employees were actually exposed to the cited conditions. Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion). Item (a) of Citation Number 5 should be vacated because the cited standard does not apply to flat roof surfaces. See Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976.
Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. [*3] 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Burroughs' decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
Appendix A
DECISION AND ORDER
Kenneth Welsch, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant
Charles N. Welsch, Vice-President, H.W. Ivey Construction Co., Inc., on behalf of respondent
STATEMENT OF CASE
BURROUGHS, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent seeks review of four serious citations issued to it, pursuant to section 9(a) of the Act, on October 7, 1975. Review is also sought of the penalties proposed for the alleged violations.
The four citations for serious violation and a non-serious citation emanated from an inspection conducted on September 26, 1975, at a workplace located at 125 Trinity Place, Decatur, Georgia. [*4] Respondent is a general construction contractor and was engaged in the construction of a parking garage at the time of inspection.
Respondent, by letter dated October 17, 1975 and received by complainant on October 20, 1975, timely advised complainant that it desired to contest the non-serious citation, n1 the four serious citations and the notification of proposed penalty issued to it on October 7, 1975. Paragraph IV of respondent's answer conceded all items of the non-serious citation and the penalties proposed for the violations. This left the issues raised by the four serious citations (designated as citation numbers two, three, four and five) for determination by the Commission.
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n1 The non-serious citation alleged nine violations of the standards and regulations promulgated under the Act.
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Serious citation number two alleges three separate violations as one serious violation. The item numbers, standards allegedly violated, and the description set forth in the citation are as follows:
Item 1(a) - 29 C.F.R. [*5] 1926.451(a)(2)
"Failed to assure that footing of scaffolds be sound, rigid and capable of carrying the maximum intended load without settling or displacement, exposing employees to hazard of falls, on the NE corner of parking garage."
Item 1(b) - 29 C.F.R. 1926.451(d)(3)
"Failed to assure that scaffolds shall be properly braced by cross bracing or diagonal braces, or both, for securing vertical members together laterally, and the cross braces shall be such length as will automatically square and aline vertical members so that the erected scaffold is always plumb, square and rigid, exposing employees to hazards of falls on:
1. Three scaffold towers approx 35 feet high located at SE corner of parking garage.
2. Three scaffold towers approx 20 feet high located at NW corner of parking garage.
3. Three scaffold towers approx 35 feet high located at the NE corner of parking garage."
Item 1(c) - 29 C.F.R. 1926.451(d)(7)
"Failed to assure that scaffolds shall be secured to buildings or structures at intervals not to exceed 30 feet horizontally and 26 feet vertically, exposing employees to the hazard of falls at the NE corner of the parking garage."
A penalty of $650 [*6] was proposed for the alleged serious violation.
Serious citation number three alleges a violation of 29 C.F.R. 1926.451(d)(10). The citation describes the alleged violation as follows:
"Failed to assure that guardrails made of lumber not less than 2 X 4" (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 ft. above the ground or floor level, exposing employees to the hazard of falls from:
a. Three scaffold towers, approx 35 feet high at the SE corner of parking garage.
b. Three towers of scaffold approx 20 feet high at the NW corner of parking garage.
c. Three towers of scaffold approx 35 feet high at the NE corner of parking garage."
A penalty of $650 was proposed for the alleged violation.
Serious citation number four alleges a violation of 29 C.F.R. 1926.500(b)(1). The alleged violation was described as follows in the citation:
"Failed to assure that floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section, exposing employees to the hazard of falls at:
a. 24" wide opening, full width of all four levels bay [*7] #3 of parking garage.
b. 34" wide opening, full width of all four levels of bay #3 of the parking garage.
c. 42" wide opening full width of all four levels of bay #3 of parking garage."
A penalty of $650 was proposed for the alleged violation.
Serious citation number five alleges a violation of 29 C.F.R. 1926.500(d)(1). The citation describes the alleged violation as follows:
"Failed to assure that every open sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder, exposing employees to the hazard of falls at:
a. Top of elevator/stair tower approx 40 feet high on the east side of parking garage.
b. South end of bays 3 and 4, all four levels of the parking garage."
A penalty of $650 was proposed for the alleged violation.
A hearing was held in this case on January 16, 1976, in Atlanta, Georgia. No additional parties desired to intervene in the proceeding.
JURISDICTION AND ISSUES
Respondent concedes that at all times material to this proceeding it was [*8] engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Tr. 6).
The following issues are presented for determination by the parties:
1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 C.F.R. 1926.451(a)(2), (d)(3), (d)(7), (d)(10), and 29 C.F.R. 1926. 500(b)(1) and (d)(1)?
2. Were the violations, if they occurred, serious violations within the meaning of section 17(k) of the Act?
3. What penalties, if any, should be assessed in the event violations are determined to have existed?
FINDINGS OF FACT
The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving the issues in dispute:
1. Respondent is a corporation with a place of business at 3384 Peachtree Road, N.E. It is engaged in business as a general construction contractor (Par. II, Complaint and Answer).
2. On September 26, 1975, complainant, through a duly authorized compliance officer, conducted an inspection at 125 West Trinity Street, Decatur, Georgia. Respondent was the prime [*9] contractor for the construction of a four-level parking garage at that location and was performing the masonry and carpentry work (Tr. 8-9, 43).
3. Each level of the garage was approximately ten feet high (Tr. 43-44, 50). Each level was divided into four bays (Tr. 32). There was a difference in elevation between bays three and four and bays one and two (Ex. 12; Tr. 37-38, 58).
4. The garage was of pre-stressed concrete construction. The structure was erected by a subcontractor (Tr. 37).
5. Respondent had erected scaffolding at the southeast, northeast and northwest corners of the building. The scaffolding at the northeast corner was approximately seven frames high on one end and five frames high on the other end. The scaffold on the northwest corner consisted of four frames and was approximately 20 feet high. The scaffolding at the southeast corner was seven frames high (Tr. 9, 11, 12-13, 14, 21, 32, 33-34, 49).
6. Each of the scaffold frames were four feet tall n2 (Tr. 49, 66).
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n2 The compliance officer testified that each scaffold frame was five feet high (Tr. 32). The construction superintendent testified that the scaffold frames were four feet high (Tr. 49-50). The masonry foreman also testified the scaffold frames were four feet high (Tr. 79). Respondent's vice-president, C. N. Welsch, identified the scaffold frame in a pamphlet published by the manufacturer. The scaffold frame is listed as four feet high (Ex. B - page 4; Tr. 85). The compliance officer did not testify that he measured the frame. The preponderance of the evidence supports the conclusion that the frames were four feet high.
[*10]
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7. The height of the scaffolding was increased on the morning of the inspection (Tr. 50, 55, 56, 62-63).
8. The two legs of the five-frame high end of the scaffold on the northeast corner were each resting on two scaffold boards. The boards had been used to span a hole approximately eight n3 feet deep. The scaffold boards rested on the bank on one side and on the opposite scaffold frame. The scaffold boards on which one end of the scaffold rested were bowed (Exs. 1, 3; Tr. 9, 11, 33, 87).
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n3 The compliance officer testified that the boards spanned a hole approximately ten feet deep (Tr. 9). This was consistent with his opinion that the frames were five feet high. There were two less frames on the end. Since each frame was four feet high, the hole was approximately eight feet deep.
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9. The scaffold boards on which the two legs of the five-frame high end of the northeast corner scaffold rested were two inches thick and eight inches [*11] wide (Tr. 12, 33).
10. Cross braces were missing from the scaffolding erected at all three corners (Exs. 1, 2, 3, 4, 5; Tr. 9, 11, 12, 15, 16-17, 32-33, 34-35). One section of the scaffold erected at the northeast corner was spreading at the bottom (Ex. 3; Tr. 66-67). In some instances the cross braces did not extend to the corners of the scaffold frames. They were installed at a short angle (Exs. 3, 5, Tr. 13, 16, 17).
11. The scaffolding erected at the northeast corner was approximately 30 feet long (Tr. 17). It was secured to the building at the door openings which were approximately ten feet from the end of the scaffolding. The scaffold was secured by wire attached to 2 X 4's erected inside the doorways (Ex. 3; Tr. 51-52, 54, 77-78).
12. The scaffolding erected at the three corners of the building had no guardrails or toeboards installed on the ends or open sides (Exs. 2-4, 6-8, Tr. 19-21, 22, 44).
13. The full width of the scaffolds were covered at the top with 2 X 8" boards. Plywood was then placed on top of the boards (Exs. 2, 3, 4, 6, 7, 8; Tr. 55, 56).
14. Two employees of respondent were working from the scaffold on the northwest n4 corner of the garage (Ex. [*12] 7; Tr. 21, 36, 45, 65, 80-81). The employees worked from the scaffold for approximately two hours (Tr. 77, 80-81). The compliance officer did not observe employees working on the scaffolds erected at the northeast and southeast corners (Tr. 36-37, 41).
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n4 Respondent's masonry foreman first testified that he worked on the scaffold located at the northeast corner (Tr. 77). After being shown photographs of the northeast and northwest corners, he testified that he worked from the scaffold at the northwest corner (Tr. 80-81). His later testimony is consistent with that of the compliance officer.
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15. Floor openings existed in bay three at all four levels of the garage. Two floor openings existed on each level. One opening was 24 inches wide; the other was 34 inches wide (Exs. 9, 10, 11; Tr. 22, 24). In bay four a 42-inch opening was on all levels. The openings went the full width of the parking deck (Ex. 10; Tr. 23, 24, 25).
16. The floor openings had been left to install a wind beam at a subsequent date (Tr. [*13] 23). The floor openings were uncovered. In one or two instances plywood had been placed across the openings to facilitate the moving of wheelbarrows and carts across the openings (Exs. 9, 10, 11; Tr. 23).
17. A round tower was being constructed on the east side of the garage to enclose the elevator and stairway. The tower was approximately 40 feet high (Tr. 27, 29).
18. There were no perimeter guardrails or toeboards on the round tower (Exs. 13, 14; Tr. 27, 29). An employee, C. W. Robinson, was observed on top of the round tower (Tr. 28, 29, 40).
19. All levels of the south end of bays three and four were without guardrails or toeboards (Ex. 12, Tr. 27, 28). Respondent had no employees working in the area of the south end of bays three and four (Tr. 40, 57).
20. Respondent has not had a serious accident on any job in 23 years (Tr. 49).
OPINION
Respondent has contested four serious citations issued to it as a result of an inspection conducted at a parking garage which was under construction. Respondent was the general contractor, and its employees were engaged in performing the masonry and carpentry work for the project.
I. Serious Citation Number Two
Serious [*14] citation number two combines three alleged violations as one serious violation. The allegations will be discussed separately.
A. 29 C.F.R. 1926.451(a)(2)
Complainant alleges that the scaffolding erected at the northeast corner of the garage building had footings which were not sound and rigid as required by 29 C.F.R. 1926.451(a)(2). n5 This position is based on the fact that one end of the scaffolding erected at the northeast corner rested on scaffold boards.
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n5 29 C.F.R. 1926.451(a)(2) provides:
"The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support scaffolds or planks."
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Scaffolding was erected in an "L" shape in the northeast corner (Exs. 3, 6; Tr. 53). The scaffolding was seven frames high except for one end which was five frames high. Apparently, the ground was approximately eight feet higher at the end. In [*15] order to support the end section of the last scaffold frame, scaffold boards were placed so that they rested on the street at one end and a scaffold frame at the other end (Exs. 1, 3). The scaffold boards were 2 X 8's and two boards were placed under each leg of the end frame. The two scaffold boards under one leg of the end frame had a slight bend in them (Exs. 1, 3).
Complainant submits that the slight bend in the scaffold boards shows that the boards were not capable of carrying the maximum intended load. Respondent's vice-president, who is a civil engineer, testified that the two 2 X 8 boards had a capacity of carrying six times the load intended for the scaffold (Tr. 85-88). The fact that the two boards under one of the legs had a slight bend does not prove that the footing was not sound, rigid and capable of carrying the maximum intended load. Complainant has not disputed respondent's evidence that the strength of the two 2 X 8 boards was capable of carrying the intended load. The issue is decided for respondent.
B. 29 C.F.R. 1926.451(d)(3)
Complainant alleges that the scaffolding erected at the southeast, northwest and northeast corners had cross braces missing [*16] and in some instances had cross braces which did not extend to the corners of the scaffold frames in violation of 29 C.F.R. 1926.451(d)(3). n6 Respondent does not dispute the fact that cross braces were missing but contends that less than ten percent were missing and that the scaffolding was stable.
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n6 29 C.F.R. 1926.451(d)(3) provides:
"Scaffolds shall be properly braced by cross bracing or diagonal braces, or both, for securing vertical members together laterally, and the cross braces shall be of such length as will automatically square and aline vertical members so that the erected scaffold is always plumb, square, and rigid. All brace connections shall be made secure."
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A laborer employed by respondent testified that he was of the opinion that the scaffolding was stable (Tr. 47). The photograph introduced as exhibit three shows some spreading of the scaffold frames which appears to have been caused by lack of cross braces in the second frame at the end. The spreading is evidence that the scaffolding was not [*17] stable.
There is no evidence on which to conclude as to the percent of cross braces missing or installed at an improper angle. The standard requires that an employer properly brace scaffolds by cross bracing or diagonal braces, or both. It is concluded that complainant has met his burden on the issue by showing the lack of cross braces, the installation of some cross braces at a short angle and the fact that some of the scaffolding at the northeast corner was spreading.
Employees were observed working from the scaffolding at the northwest corner. The compliance officer did not observe employees working on the scaffolds at the northeast and southeast corners.
The height of the scaffolding had been increased on the morning of the inspection. The obvious intent was that the scaffolding was to be used by employees. Respondent's superintendent testified that employees worked on the scaffolding at the northeast and southeast corners during the afternoon (Tr. 56-57).
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n7 The work done by employees on the northeast and southeast corners was after the inspection. Respondent's superintendent testified that guardrails and toeboards were installed after the inspection and were in place at the time work was performed (Tr. 56-57).
[*18]
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The fact that employees were working on the scaffolding at the northwest corner at the time of inspection without guardrails and missing cross braces is indicative of respondent's intent to use the scaffolding as erected at the time of inspection. The fact that employees worked from the northeast and southeast scaffolding during the afternoon is evidence that employees would have been exposed to the zone of danger as contemplated by the Commission in Secretary v. Gilles & Cotting, Inc., OSAHRC (Docket No. 504, February 20, 1976). The issue is decided for complainant.
C. 29 C.F.R. 1926.451(d)(7)
Complainant alleges that respondent violated 29 C.F.R. 1926.451(d)(7) n8 by failing to secure the scaffolding in the northeast corner to the building. The scaffolding in the northeast corner was approximately 30 feet long. The standard requires that scaffolding be secured to the building or structure at intervals not exceeding 30 feet horizontally.
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n8 29 C.F.R. 1926.451(d)(7) provides:
"To prevent movement, the scaffold shall be secured to the building or structure at intervals not to exceed 30 feet horizontally and 26 feet vertically."
[*19]
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The compliance officer testified that he did not see any "tie-offs" of the scaffolding in the northeast corner to the building (Tr. 17). This testimony is disputed by respondent's construction superintendent and masonry foreman employed at the site. Respondent's superintendent testified that the scaffolding was secured to the building through the doorway with wire. The point where the scaffold secured was approximately 10 feet from its end (Tr. 51-52, 54). The photograph introduced as exhibit three shows 2 X 4's in the doorways, and the superintendent testified the wire was attached to the 2 X 4's. He testified that the purpose of the 2 X 4's in the doorways was to facilitate the securing of the scaffold to the building (Ex. 3; Tr. 54-55).
Respondent's masonry foreman testified that wire was used to secure the northeast corner scaffold to the 2 X 4's which has been placed on the inside of the doorways (Tr. 77-78).
The preponderance of the evidence supports the conclusion that the northeast corner scaffold was secured to the building. The compliance officer did not ascend the scaffolding and made [*20] his determination from some distance. It seems conceivable that he could have overlooked the wire. The 2 X 4's in the doorways served ideally for securing the scaffold. No other reason has been shown for their erection across the doorways. The issue is decided for respondent.
II. Serious Citation Number Three
Complainant alleges that respondent violated 29 C.F.R. 1926.451(d)(10) n9 by failing to provide guardrails and toeboards on the scaffolding erected at the southeast, northeast and northwest corners of the garage.
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n9 29 C.F.R. 1926.451(d)(10) provides:
"Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section."
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The standard requires the installation of guardrails and toeboards at all open sides and ends on all scaffolds more than 10 feet above the ground. The evidence is undisputed that all the scaffolds were higher than 10 feet above the ground and that none of the scaffolds had guardrails or toeboards installed at the open sides and ends.
Employees were observed working off of the northwest corner scaffolding without guardrails or toeboards being installed on the open sides and ends (Ex. 7). Employees were not observed working from the scaffolding erected at the northeast and southeast corners. Employees did work from the scaffolding erected at the northeast and southeast corners during the afternoon. This was after the inspection and guardrails had been installed prior to employees working from this scaffolding. As previously stated, it is concluded that employees would have been exposed to the danger of working from all the scaffolding without guardrails if the inspection had not taken place. The issue is decided for complainant.
III. Serious Citation Number Four
Complainant alleges that respondent violated 29 C.F.R. 1926.500(b)(1) n10 by [*22] failing to assure that floor openings in bay number three of the garage were guarded by a standard railing and toeboards or cover. There is no dispute that there were unguarded floor openings in bays three and four. n11 The dispute on this issue centers on whether employees were exposed to the hazards associated with the floor openings.
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n10 29 C.F.R. 1926.500(b)(1) provides:
"Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways."
n11 The citation and complaint refer only to bay number three. The compliance officer testified that the 42-inch opening referred to in the citation and complaint as being in bay three was in bay four (Tr. 23, 24).
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The compliance officer testified that employees were seen in the tower area. He further testified that the only way he knew they could have gotton there was by the ramps in bays three and four (Tr. 26). Respondent's [*23] superintendent testified that none of its employees were working in bays three and four (Tr. 57). He further testified that respondent's employees used the ramps in bays one and two to gain access to higher elevations and the tower (Tr. 58, 68). Access to the tower and higher elevations was also afforded by ladders inside the tower that went from floor to floor (Tr. 72).
The superintendent testified that during the inspection he accompanied the compliance officer through bay three up to the tower area (Tr. 69). Apparently, the compliance officer made the assumption that employees had to take the same route he took to get to the tower. He did not observe respondent's employees using bays three and four to ascend to the tower (Tr. 40). The issue is decided for respondent. The specific and unequivocal testimony of the superintendent is given credence over an assumption made by the compliance officer. n12
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n12 The compliance officer testified as follows with request to employee exposure to the openings: (Tr. 26, lines 8-13)
"Q At the time of your inspection, were employees working on the -- or H. Y. Ivey employees seen in the tower area?
"A Yes, they were.
"Q How would they have gotten to the tower area?
"A Up these ramps was the only way I know that they could get up."
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IV. Serious Citation Number Five
Complainant alleges that respondent violated 29 C.F.R. 1926.500(d)(1) n13 by failing to provide guardrails or the equivalent protection for the top of the elevator and stair tower and all levels of the south end of bays three and four.
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n13 29 C.F.R. 1926.500(d)(1) provides:
"Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."
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The facts are undisputed that the top of a round tower being constructed to enclose the elevator and stairway had no perimeter guarding [*25] (Ex. 14). An employee was observed on top of the tower. The violation has been established.
The facts are also undisputed that all levels of the south end of bays three and four were without guardrails or toeboards. However, the compliance officer (Tr. 40) and respondent's superintendent agree that respondent had no employees working in bays three and four (Tr. 57). The compliance officer alleged the violation on the assumption that employees used bays three and four to gain access to upper levels (Tr. 40). As previously discussed, this was an erroneous assumption. The issue is decided for respondent.
V. Nature of Violations
An accident need not be substantially probable in order for a violation to be serious. An accident must simply be possible. Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which are likely to occur in the event of an accident. A serious violation is based on a finding that the resultant accident raises a substantial probability that death or serious physical harm could result from the violation. Secretary v. Natkin and Company, 2 OSAHRC 1472 (1973).
A. Serious Citation Number Two
The [*26] serious violation was determined on the basis that respondent had violated three standards. The alleged violations were combined to form one serious citation. Two of the alleged violations have been vacated. The respondent was determined to have only been in violation of 29 C.F.R. 1926.451(d)(3).
The scaffolding had been erected to heights of 28 feet and 20 feet. In the event an accident occurred, there was a likelihood that an employee could have been thrown to the ground with the scaffolding falling on top of him. A fall from those heights would likely result in death or serious physical harm. The violation was serious within the meaning of section 17(k) n14 of the Act.
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n14 Section 17(k) of the Act provides:
"For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practiced, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
[*27]
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B. Serious Citation Number Three
Respondent violated 29 C.F.R. 1926.451(d)(10) by failing to erect guardrails and toeboards on the scaffolding. The scaffolding at the southeast and northeast corners was 28 feet high. The scaffolding at the northwest corner was 20 feet high. A fall from those heights would have resulted in death or serious physical harm. The violation was serious.
C. Serious Citation Number Five
Respondent violated 29 C.F.R. 1926.500(d)(1) by failing to erect perimeter guarding on the top of a tower approximately 40 feet high. A fall from the top to the ground would have resulted in death or serious physical harm to an employee. The violation was serious.
VI. Penalty Determinations
Section 17(j) of the Act requires the Commission 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. In Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972), the Commission stated that [*28] the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense. In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury. Secretary v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D.C. Cir. 1973).
A. Serious Violation of 29 C.F.R. 1926.451(d)(3)
The number of cross braces missing from the scaffolds is unknown. While some cross braces were missing, one of respondent's employees, David Waldrip, testified that the scaffolding was stable (Tr. 47). It is further noted that there were several sections of scaffolding in a continuous line at each of the corners. This furnished additional support to the scaffolding. The likelihood of the scaffolding falling was quite remote. A penalty of $100 is deemed appropriate for the violation. [*29]
B. Serious Violation of 29 C.F.R. 1926.451(d)(10)
The scaffolds erected at the northeast, northwest and southeast corners were covered with scaffold boards, and sheets of plywood were placed on top of the boards. A smooth and stable surface was established on the top that was approximately four feet wide. Employees had ample room to maneuver from the open sides and ends. The likelihood of a fall was remote. A penalty of $100 is assessed.
C. Serious Violation of 29 C.F.R. 1926.500(d)(1)
An employee was observed on top of a tower approximately 40 feet high. There was no perimeter guarding. The compliance officer testified that the employee was on the top but did not appear to be doing anything (Tr. 29). The top of the tower covered a fairly large area (Ex. 14). There is no evidence to indicate how close the employee was to the perimeter or how long he remained on the top. A penalty of $75 is deemed appropriate.
CONCLUSIONS OF LAW
1. Respondent was, at all times material to this proceeding, engaged in a business affecting commerce within the meaning of the Act.
2. Respondent was, at all times material to this proceeding, subject to the requirements of [*30] the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. On September 26, 1975, respondent was engaged in the construction of a four-level parking garage in Decatur, Georgia. In connection with the project, scaffolding had been erected to a height of 28 feet at the northeast and southeast corners of the garage and to a height of 20 feet at the northwest corners.
4. The scaffold erected at the northeast corner was crected on a sound and rigid footing. Respondent was not in violation of 29 C.F.R. 1926.451(a)(2) as alleged.
5. Cross braces were missing from the scaffold framing erected at the three corners in violation of 29 C.F.R. 1926.451(d)(3). The violation was serious. A penalty of $100 is assessed.
6. The scaffold erected at the northeast corner was secured to the building by wire connected to the scaffold and 2 X 4's placed across two doorways. Respondent was not in violation of 29 C.F.R. 1926.451(d)(7).
7. The scaffolding erected at the three corners had no guardrails or toeboards installed at the open sides and ends. Respondent was in violation of 29 C.F.R. 1926.451(d)(10). The violation [*31] was serious. A penalty of $100 is assessed.
8. Bays three and four of the garage had uncovered and unguarded floor openings of 24 inches, 34 inches and 42 inches. Respondent had no employees exposed to the openings in bays three and four and was not in violation of 29 C.F.R. 1926.500(b)(1).
9. The perimeter of the top of a 40 foot-high tower was without guardrails or equivalent protection in violation of 29 C.F.R. 1926.500(d)(1). The violation was serious. A penalty of $75 is assessed.
10. The south end of bays three and four of the garage had no guardrails at any of the levels. Respondent was not in violation of 29 C.F.R. 1926.500(d)(1) in bays three and four since it had no employees working in the bays.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED: (1) That item 1(b) of serious citation number two issued to respondent on October 7, 1975, is affirmed and that items 1(a) and 1(c) are vacated;
(2) That serious citation number three issued to respondent on October 7, 1975, is affirmed;
(3) That serious citation number four issued to respondent on October 7, 1975, is vacated;
(4) That serious citation number five issued [*32] to respondent on October 7, 1975, is affirmed as to the tower and vacated with respect to bays three and four;
(5) That the penalty proposed for serious citation number four is vacated;
(6) That a penalty of $100 is assessed for each of serious citation numbers two and three; and
(7) That a penalty of $75 is assessed for serious citation number five.
Dated this 6th day of July, 1976.
JAMES D. BURROUGHS, Judge