AVALOTIS PAINTING COMPANY
OSHRC Docket No. 76-4774
Occupational Safety and Health Review Commission
June 30, 1981
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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Robert G. Panagulias, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). The Secretary of Labor ("the Secretary") issued to Respondent, Avalotis Painting Company, a citation alleging a serious violation of the Act for noncompliance with the scaffolding standard at 29 C.F.R. § 1926.451(d)(10). n1 Judge Osterman concluded that Respondent is not a "business affecting commerce" under section 3(5) of the Act, 29 U.S.C. § 652(5), and accordingly that Respondent is not subject to the provisions of the Act or the jurisdiction of the Commission. Assuming jurisdiction arguendo, the judge concluded alternatively that Respondent did not violate section 1926.451(d)(10) and vacated the citation. Commissioner Barnako directed review of all issues raised by the Secretary's petition for discretionary review. For the reasons that [*2] follow, we set aside the judge's decision and affirm the citation.
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n1 The standard provides for guarding of tubular welded frame scaffolds more than 10 feet above the ground. See note 3 infra. Respondent was also cited for four other than serious violations for which the Secretary proposed a $120.00 penalty. At the hearing, the Secretary moved to delete the proposed penalties for items 3 and 4 of citation 2 under the congressional appropriations limitation which restricts the expenditure of appropriated funds for the assessment of civil penalties under the Act. Respondent then withdrew its notice of contest to items 1, 3 and 4 of citation 2. Later in the hearing, the judge vacated item 2 of citation 2 on the Secretary's motion because manufacturer documents indicated that Respondent's air compressor had the required controls. Although the judge failed to enter any order concerning citation 2, the record indicates that he approved Respondent's withdrawal of its notice of contest to three items and the Secretary's vacation of the remaining item. Accordingly, we affirm citation 2 as amended at the hearing.
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Respondent is a painting and sandblasting contractor based in Verona, Pennsylvania. At the time of the citation, Respondent employed about 75 workers at a nuclear power plant in Shippingport, Pennsylvania. The citation arose from an inspection of Respondent's Shippingport jobsite by Occupational Safety and Health Administration ("OSHA") compliance officers James Weyrauch and Ralph Romano.
I. Jurisdiction
In its answer to the Secretary's complaint, Respondent denied the Secretary's allegation that all of its materials, equipment and supplies originated outside of Pennsylvania and further denied that it is an "employer engaged in a business affecting commerce as defined by section 3(5) of the Act . . . ." At the hearing, compliance officer Weyrauch testified concerning jurisdiction. He explained that at the time of the inspection Respondent used hoses, paint, an Ingersoll-Rand compressor, and a telephone in its job trailer. Weyrauch assumed that Respondent also used trucks, but he had not observed their use. He further testified that two of Respondent's employees resided outside Pennsylvania. n2 [*4] Following Weyrauch's testimony, Respondent moved to dismiss asserting that these facts failed to establish jurisdiction. Judge Osterman reserved judgment on the question. Respondent's job foreman, Robert Beale, testified on cross-examination that Respondent used trucks made by General Motors and paint made by Mobil, Across, and Koppers.
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n2 The record indicates that Jerry Seibert and Mike Stein, the two employees exposed to the alleged scaffold hazard, both resided in Newell, West Virginia.
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In his decision, the judge concluded that Respondent was not engaged in an activity "affecting commerce" under the Act and "thus was not subject to the provisions of the Act or the jurisdiction of this Commission." He determined that the Secretary had established only two pertinent but "inconsequential" jurisdictional facts: that Respondent had a telephone in its trailer and that it owned several pickup trucks. Accordingly, the judge found that the Secretary failed to demonstrate that "Respondent's relationship to interstate [*5] commerce was other than minimal."
Relying on his petition for discretionary review and his brief to the United States Court of Appeals for the Ninth Circuit in Usery v. Franklin R. Lacy, 628 F.2d 1226 (9th Cir. 1980), the Secretary argues that record evidence establishes that Respondent had substantial contacts with interstate commerce. The Secretary emphasizes that Respondent used an Ingersoll-Rand compressor, paint manufactured by Mobil and Koppers, and trucks made by General Motors. Citing United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975), and Brennan v. OSHRC [John J. Gordon Co.], 492 F.2d 1027 (2d Cir. 1974), the Secretary strenuously maintains that the courts have "uniformly held that an employer's use of products which are manufactured nationally is sufficient to establish affecting commerce coverage under the Act." In addition, the Secretary contends that Respondent affected commerce by working at the site of a nuclear power plant and by employing two workers who resided outside Pennsylvania.
Although it concedes that Congress intended to exercise its commerce power to the fullest extent, Respondent contends on review that the Secretary established [*6] only that the inspection occurred at a power plant under construction, that two employees resided in West Virginia, and that its employees used the telephone. Citing Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976), Respondent insists that to include it under the Act on these "minimal" facts "would be to include every employer within the United States, a result neither intended by the Congress nor permitted under the commerce clause. . . ." Respondent further asserts that the Secretary now improperly asks the Commission to prove his case by requiring a conclusion from "scant testimony that Respondent was so engaged in business as to affect commerce."
We find that Respondent was engaged in an activity "affecting commerce." It is well settled that by using the phrase "affecting commerce" in section 3(5) of the Act, Congress intended to exercise its full powers under the commerce clause. See, e.g., Usery v. Franklin R. Lacy, supra; Godwin v. OSHRC, supra. It is sufficient to note that the record establishes Respondent's use of products manufactured out of state that had moved in commerce. An employer's use of goods produced out of state has been held to [*7] "affect" interstate commerce under the Act. United States v. Dye Construction Co., supra. See also Katzenbach v. McClung, 379 U.S. 294 (1964). Consequently, contrary to the judge's finding, Respondent is an "employer" subject to the Act and to the jurisdiction of the Commission.
II. Alleged Violation of Section 1926.451(d)(10) n3
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n3 The standard provides that tubular welded frame scaffolds more than 10 feet above the ground shall be guarded as follows:
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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Record evidence indicates that the cited scaffold was erected [*8] inside a cylindrical reheating duct 25 feet in diameter and 45 feet in length. The scaffold had two levels: a top work level 17 feet above the ground and a second level five or six feet below the top level. The scaffold was 15 feet wide and extended the length of the duct. A ladder at the duct opening provided access to the 17 foot level. At that open end of the scaffold, the front edge of the top level was even with the end of the duct while planking on the lower level extended slightly beyond the duct edge, perhaps one or two feet, as shown in the compliance officer's photographs. Although the exact distance of the interior scaffold edges from the duct lining cannot be accurately gauged from the record, it is apparent from testimony and photographs that the interior edges on the lower level did extend further than the corresponding top level edges. n4
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n4 This description of the scaffold is based on our assessment of the record, including the compliance officer's photographs that depict the end of the scaffold at the duct entrance. Unfortunately, testimony about the scaffold is less than clear. At the hearing, witnesses testified in reference to blackboard drawings of the scaffold and duct without precise explanation of their comments. When it is necessary during the hearing to refer to visual aids such as graphs or charts, we recommend that the parties include those aids, or accurate copies of them, in the record. R. Hunter, Federal Trial Handbook § 54.9 (1974). We also emphasize that judges are responsible for the making of a clear, complete, and understandable record.
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Undisputed evidence establishes that, at the time of inspection, the top scaffold level was completely unguarded. Paint cans and hoses littered the top work surface and a slippery, abrasive sandblasting residue covered the entire surface, as indicated in the compliance officer's photographs. Although compliance officer Weyrauch did not see any employee use the scaffold, job foreman Beale told him that Respondent's employees stood on the top surface and sandblasted the duct interior on the night before the inspection. After the inspection, employees Jerry Seibert and Mike Stein said that when they blasted from the unguarded top level they were not required to wear safety belts.
Admitting he had no personal knowledge about Respondent's operation, Weyrauch assumed from his sandblasting experience that employees had to work close to the scaffold edges and to lean over, particularly if blasting duct surfaces below the top platform. He emphasized that a worker could fall to the ground from certain areas of the top working surface despite overhanging planks on the lower level. Weyrauch specifically examined [*10] a photograph of the scaffold end at the duct entrance and testified that, if an employee fell from either side of the ladder at that unguarded end, the employee would fall 17 feet to the ground. He considered the fall hazard serious because an employee would be seriously injured if an accident occurred. Noting particularly the slipperiness of the loose sandblasting residue, the restricted employee vision in protective hoods, and the back-and-forth movement of employees while working, Weyrauch concluded that an employee "could slip off of the [top level] very easily."
Although Respondent's job foreman Beale admitted that employees sandblasted from the unguarded top level, he opined that a fall from that level to the ground was a "near impossibility." Instead, Beale explained, a falling employee would land on the planking that projected from th lower level. Employee Seibert testified that, because of the duct curvature, he could not work closer than three or four feet from the interior scaffold edges. He pointed out that an employee had to "crawl over" to get to the interior edges. Respondent's general foreman, Theodore Kalafatis, added that employees often had to sandblast from [*11] a sitting position because of the duct curvature, and they could not stand closer than 3 or 4 feet from the object being blasted. Seibert did acknowledge the possibility of falling from the top level to the ground at the duct opening but added "we never got that close to those edges." On cross-examination, Seibert explained that he and employee Stein both climbed up and down the ladder at the duct opening three or four times on the night before the inspection. Although the scaffold had no guardrails, Seibert stated that he held onto ladder siderail extensions when getting on or off the top platform. He admitted that the slippery residue covered the edge of the top level where he stepped from the ladder and onto the platform.
The judge concluded that Respondent had not violated the Act. He found that, because of the duct curvature and the sandblasting equipment, the blasting had to be done at least three or four feet from the object being blasted and the employees had to sit to blast the duct sides from that short distance. The judge thus ruled that "the hazard of falling along the interior sides of the scaffold was practically nonexistent." He did find a fall hazard at "the [*12] edge of the scaffold at the entrance to the duct . . . because standard railings had not been erected along the edge of the scaffold at the entrance to the duct and because employees were not required to use life belts." However, the judge determined that the hazard was "only minimal" because the employees generally worked from the center of the scaffold and, in any event, they could drop no more than the 5 or 6 feet from that end of the scaffold to the level below.
On review the Secretary argues that Respondent's employees were exposed to a fall hazard when working within three feet of the scaffold edges and when at the entrance of the duct. In addition, the Secretary insists that undisputed evidence indicates that the vision of exposed employees was obstructed by protective hoods as they worked on the slippery surface of the scaffold. Consequently, the Secretary contends that Respondent was in "serious or at least nonserious . . ." violation of the Act.
Respondent argues that the Secretary failed to prove a serious violation of the cited standard because the Secretary did not provide any evidence of the serious physical harm that could result from the alleged violation. Respondent [*13] also insists that a fall hazard was virtually nonexistent because the employees had to stand at three or four feet from the object of the blasting and because of the duct curvature. Further, Respondent relies on job foreman Beale's statement that "the possibility of falling off the edge was rare and . . . if a fall occurred, it would be to the next level of the scaffold approximately six feet," as well as the supporting testimony of Seibert and Kalafatis. Respondent did not specifically address the fall hazard at the duct opening.
We find that the judge erred in concluding that Respondent did not violate the Act. To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), the Secretary must demonstrate by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee access to the hazard created by the violative condition. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978). Undisputed evidence here, including the compliance officer's photographs and witness testimony, establishes that there was no obstacle to a fall at the unguarded open end of the scaffold at the duct entrance. [*14] n5 It is also undisputed that Respondent's employees sandblasted from the top level of the scaffold. While working at that level, the employees freely moved about the scaffold without the protection afforded by a guardrail. Therefore, we find they had access to the fall hazard at the duct entrance. See Otis Elevator Co., supra. Moreover, Respondent's employees were exposed to a fall hazard whenever they approached the unguarded edge at the duct opening, such as when they got on and off the top level by way of the ladder at the edge. Both the compliance officer and employee Seibert acknowledged the possibility of a fall 17 feet to the ground from that scaffold end. We reject the judge's finding that this hazard was "minimal" because employees "could not drop more than 5 or 6 feet . . . ." Although a falling employee might hit the planking on the lower level, as indicated by the judge, we conclude that the narrow planking could not fully prevent a fall from the top level to the ground. Finally, the chance of falling from the unguarded edge was exacerbated by the slippery, loose material that covered the entire top surface and by the limited employee vision in protective [*15] hoods. The Commission has recognized that the possibility of a fall is aggravated by such slippery surface conditions. See Roofing Systems Consultants, A Division of Bit U Tech, Inc., 80 OSAHRC, 8 BNA OSHC 1446, 1980 CCH OSHD P24,504 (No. 76-592, 1980).
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n5 Although record evidence clearly establishes a violation at the unguarded end of the scaffold, as a result of the shortcomings of the record, we are unable to determine whether the interior scaffold edges were similarly in violation. The judge found a fall hazard at the interior edges "practically nonexistent" but the compliance officer, in his testimony relating to blackboard drawings, indicated that a fall was possible from certain areas of those edges.
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For these reasons, we conclude that Respondent failed to comply with the standard at section 1926.451(d)(10) and that Respondent violated the Act as alleged by the Secretary. Furthermore, we find the violation serious. n6 Respondent's employees were exposed to a 17 foot fall hazard and the compliance [*16] officer's unrebutted testimony establishes that the likely result of a fall would be serious injury or death. In addition, job foreman Beale was aware that employees worked on the unguarded top scaffold level. It is well established that a foreman's knowledge is imputable to an employer. See, e.g., Wander Iron Works, 80 OSAHRC , 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980). We also conclude that the proposed $650 penalty is reasonable and appropriate in view of the record and the statutory penalty criteria at section 17(j) of the Act, 29 U.S.C. § 666(i).
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n6 Section 17(k) of the Act, 29 U.S.C. § 666(j), 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 practices, 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.
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Accordingly, we set aside the judge's decision, affirm the citation for a serious violation of the Act for failure to comply with the standard at 29 C.F.R. § 1926.451(d)(10), and assess a penalty of $650. SO ORDERED.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner, Dissenting:
I agree with my colleagues for the reasons they state that Respondent was shown to be engaged in a business affecting commerce within the meaning of 29 U.S.C. § 652(5) and therefore is subject to the Act. However, I dissent from my colleagues' decision to affirm the citation in issue since in my view the Secretary failed to prove that Respondent's employees we exposed to the hazard of a fall from the unguarded front edge of the scaffold. n1
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n1 I agree with my colleagues that the record before us does not establish exposure to the hazard of a fall from the unguarded interior edges of the scaffold. See note 5 of the lead opinion.
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My colleagues correctly state that the Secretary [*18] must prove employee access to the hazard created by the violative condition. In my view, however, access cannot be found unless the evidence shows a reasonable predictability that employees will be, are, or have been in a zone of danger. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976). In this case, the Secretary presented no evidence to show specifically how close to the unguarded front edge of the scaffold at the duct entrance the employees would come in the performance of their work duties. Furthermore, Respondent's employee testified without rebuttal that the employees would not come close enough to this edge to be exposed to the hazard of a fall. Accordingly, the Secretary failed to satisfy his burden to establish a reasonable predictability that Respondent's employees were or would have been in a zone of danger. See Otis Elevator Co., 78 OSAHRC 88/E5, pp. 15-17, 6 BNA OSHC 2048, 2052-53, 1978 CCH OSHD P23,135 at 27,954-55 (No. 16057, 1978) (concurring and dissenting opinion).
Finally, the fact that employees would be at the edge while using the ladder to enter or exit from their work area does not constitute [*19] exposure to the hazard represented by the lack of guardrails. Stahr & Gregory Roofing Co., 79 OSAHRC 2/B12, p. 11, 7 BNA OSHC 1010, 1013, 1979 CCH OSHD P23,261 at 28,136-37 (No. 76-88, 1979) (concurring and dissenting opinion). The citation, therefore, should be vacated for failure of proof by the Secretary.