UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 10268
EMERY SMISER CONSTRUCTION CO.,
Respondent.
December 8, 1975
ORDER
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BY THE Commission:
On October 14, 1975, Commissioner Timothy F. Cleary issued a Direction for Review
granting the Petition for Discretionary Review filed by complainant, the Secretary of Labor.
On November 13, 1975, the Secretary wrote a letter to the Executive Secretary of the
Commission that we construe as a Motion to Vacate the Direction for Review and to Withdraw
Petition for Discretionary Review.
For the reasons stated in the Secretary’s letter of November 13, 1975, it is hereby
ORDERED that the Motion to Vacate the Direction for Review and Withdraw the Petition for
Discretionary Review is granted.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: DEC 8, 1975
MORAN, Commissioner, Concurring:
The Commission has quite properly accepted the complainant’s concession that the
Judge’s decision finding insufficient evidence to support the alleged serious violation of 29
C.F.R. § 1926.451(c)(13) is correct. I concur with this disposition. However, since the foregoing
opinion does not state any of the matters covered by Judge Brenton’s decision, the same is
quoted in full text as follows:
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 10268
EMERY SMISER CONSTRUCTION CO.,
Respondent.
September 11, 1975
J. Paul Brennan, Judge
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 citations issued by the
complainant against the respondent under the authority vested in complainant by section 9(a) of
that Act.
The citations allege that as the result of the inspection of a workplace under the
ownership, operation or control of the respondent, located at 2340 NW 50th, Oklahoma City,
Oklahoma, and described as follows: ‘Repairs on Church’, the respondent has violated section
5(a)(2) of the Act by failing to comply with certain occupational safety and health standards
promulgated by the Secretary of Labor pursuant to section 6 thereof.
The citation, which was issued on September 5, 1974, and reissued on September 23,
1974, and the citation, which was issued on September 5, 1974, allege respectively that a serious
and non-serious violation resulted from a failure to comply with standards promulgated by the
Secretary by publication in the Federal Register, and codified in 29 CFR 1926.
The description of the alleged violations contained on these citations state:
SERIOUS CITATION
Item 1 ‘29 CFR 1926.451(d)(10) Guardrails, not less than 2 inches x 4 inches or
the equivalent and approximately 42 inches in height with a midrail of 1-inch x 4-
inch lumber or equivalent and toeboards, were not installed at open ends and sides
of scaffold located on the platform around the church steeple.’
NONSERIOUS CITATION
Item 5 ‘29 CFR 1926.451(d)(10) Guardrails not less than 2 inches by 4 inches or
the equivalent and approximately 42 inches in height with a midrail of 1-inch by
6-inch lumber or equivalent and toeboards were not installed at open ends and
sides of the scaffold; i.e., scaffold at northeast corner of church.’
The standard promulgated by the Secretary provides as follows:
SERIOUS AND NONSERIOUS CITATIONS
Items 1 & 5 ‘1926.451 Scaffolding.
(d) Tubular welded frame scaffolds.
(10) 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 mash shall be installed in accordance with paragraph (a)(6) of this
section.’
Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the
respondent was notified by letters dated September 23, 1975, from J. T. Knorpp, Area Director
of the Tulss, Oklahoma, area, Occupational Safety and Health Administration, U. S. Department
of Labor proposed to assess penalties for the violations alleged in the amount of $555.00.
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 Oklahoma City, Oklahoma, on January
21, 1975.
FINDINGS OF FACT
1. On September 4 and 5, 1974, respondent was engaged, as a general building
contractor, in the repair of a church steeple in Oklahoma City, Oklahoma. In so doing it utilized
imported lumber and steel originating outside Oklahoma.
2. On September 4, 1974, respondent, at this work site, maintained a metal tubular
scaffold, 35 feet in height, from the ground to the roof, with a wooden platform installed on its
top.
3. A material hoist had been erected adjacent to this scaffold, which was observed to be
used for lowering a container of bottles by one of respondent’s employees. This operation
required this employee’s presence on the top of the scaffold for less than five minutes at which
time the platform thereon had not been provided with guardrails. At another time two man were
observed on this platform by the compliance officer as he was driving away from the work site.
4. Another scaffold was in the process of erection on September 4 and 5, 1974, which
was about 50 feet from ground level and eventually would encircle the church steeple. During
this process one or more of respondent’s employees would probe and examine the steeple, to
ascertain the necessary repairs, from the platform atop this scaffold which was not provided with
a guardrail.
5. Respondent’s contract for this job was on a time and material basis for the work
performed.
6. Safety belts were provided and the foreman, a carpenter, his helper and two laborers
were instructed by management at the commencement of the job to wear the safety belts when
working about an unguarded position, and on September 4, 1974, Charles Blakely, the foreman,
was specifically instructed so to do.
7. On September 5, 1975, management found Blakely and one Ken Bunch working above
the platform without a safety belt at which time they were ordered down off the job, Blakely was
replaced on this job the next day and discharged 20 days later when another carpenter was found.
8. Glenn Kirkpatrick was the general superintendent on this job as well as on several
others then in progress. When he was not at this job site, Blakely was in charge. Emery Smiser,
president of respondent corporation, managed this job along with Kirkpatrick.
9. Kirkpatrick found Blakely and his helper wearing safety belts when working from the
unguarded platform at various times prior to inspection. On the 4th or 5th of September 1974, he
discovered Blakely on the upper level scaffold without being tied off with a safety belt at which
time he called him down and Blakely was given a reprimand by Kirkpatrick.
10. Emery Smiser had attended meetings, seminars, and courses of instruction on OSHA
regulations. Also he studied them and took a course in first aid.
11. During the walk around inspection on the 4th of September 1974, the compliance
officer saw two safety belts inside the church steeple.
12. The platform on the material hoist scaffold was not guarded at the time of inspection
on the 4th of September 1974, because respondent was of the opinion that taking off the large
pieces of plywood from the hoist would create more chances of injury upon reaching over a
guardrail than without.
13. After respondent’s examination of the steeple revealed the necessary work to be
performed, it completed the scaffold thereabouts together with guardrails which was described
by the compliance officer as the best he had ever seen.
ISSUES
What further precautions should respondent have taken, if any, to assure compliance with
its safety instructions.
Did respondent show that the required guardrail on the material hoist platform would
have presented a greater change of injury than without.
What amount of penalty, if any, should be assessed as appropriate upon a finding of a
violation.
DISCUSSION
I
The material hoist scaffold was erected and used primarily to bring materials to the
workplace. A platform was installed on top of it for assistance in receiving materials. It was not a
working platform for any other purpose. It was used infrequently. On September 4, 1974, no
guardrails had been installed at its open side and ends as required by 29 CFR 1926.451(d)(10).
Respondent contended that guarding it in the manner prescribed would present a greater
chance of injury than without any guarding. The argument was to the effect that reaching over a
42 inch high rail to bring in large plywood was a greater hazard than if no barrier was in the way.
This was simply Emery Smiser’s expert opinion. This opinion may have been well founded,
however, the evidence fails to disclose the hypothesis upon which it was based. This defense
must therefore be rejected and the citation for this non-serious violation at item five should be
affirmed.
The complainant proposed a penalty of $55.00 for this nonserious violation. It is clear
from the evidence that the duration of exposure here was almost non-existent. Although two men
were seen momentarily on this platform in addition to the one employee of respondent they were
not identified nor was there an explanation of the function they were performing, if any. The
probability of an injury occurring was according to the evidence exceedingly low. The evidence
also shows that respondent’s good faith was exceptional. Moreover, respondent had no previous
history of any violations of the Act. Therefore, the penalty proposed should be modified by
reducing it is the amount of $30.00.
II
At the time of the inspection there did [appear] a working platform on the scaffold at the
bottom of the church steeple which was properly guarded with railing and toe board. From this
point upward respondent was in the process of building the scaffolding. In so doing it erected
another level from which to complete its investigation of the steeple to ascertain the necessary
repairs. This platform created at this upper level was used as a means from which probing and
investigating at higher elevations could be accomplished on the steeple preliminary to finalizing
the scaffold’s height and design. Inasmuch as this upper level platform was not then guarded
respondent’s employees selected to perform this work were provided safety belts and given
explicit instructions to wear and use them for protection against injury in the event of a fall.
At this stage of the scaffold construction process it had not been determined whether this
platform would become a working platform. It is interesting to note that the compliance officer
upon his first visit learned this upper level platform had not been used as a scaffold platform or
walking surface for the performance of work on the steeple. On the following day he observed
men on the upper level scaffold by means of binoculars from his office several blocks away and
later upon visiting the site was told that respondent’s employees had been up there. At this time
he observed one employee tied off with safety belt and life line. Also at this time the
superintendent arrived with more scaffolding material and guard rails were in the process of
being installed on the upper level platform but not then completed. One workman was taking off
a corner of the steeple as described by the compliance officer. But the evidence also shows that a
sheet metal craft was also on the site and that the corners may well have been examined by a
workman of another employer. Also respondent’s men wore white hard hats and the man
observed at the alleged corner wore a red hard hat. It is therefore difficult to arrive at a clear cut
conclusion that respondent’s employees were doing anything other than examining the steeple
and proceeding with the construction of the scaffold and guard rails of the platform as
determined by investigation.
The crew employed by respondent at this job site consisted of two carpenters and two
laborers. One of the carpenters was selected as foreman because respondent believed from pest
experience that he was reliable and would follow instructions inasmuch as he had never been
known to disobey an order. But on the day of inspection he violated a specific instruction to use
a safety belt and tie off when probing above the upper level scaffolding. This was not observed
by the compliance officer but was immediately reported to him by respondent. Also this
employee was at that time reprimanded, demoted, and subsequently fired.
There is no dispute that the upper level scaffold was not completely guarded on
September 5, 1974, in accordance with the standard alleged. The conflict in the evidence has to
do with whether the scaffold was still in the process of erection together with whether respondent
knowingly permitted work performance on or above it without providing and demanding the use
of safety belts and lifelines.
Complainant argues that respondent know his man were violating the Act because he
saw, from long distance, three or four man upon the high level after which respondent’s foreman
said his man were up there; that four of respondent’s men spent some time wrecking columns,
and two employees were observed by the compliance officer in the presence of respondent’s
president on the upper level, one of which was without his safety belt. On the other hand there
were only two carpenters on this job and the credible evidence indicates conclusively that they
were the only employees required as being competent to investigate above the upper level. The
two laborers were elsewhere and in fact worked on the columns on the ground. Moreover, the
two man, one of which wore a safety belt were never identified. It is inferred that the one
wearing the equipment was respondent’s employee and the other was not. If he was he simply
was disobeying orders which the evidence shows was not foreseeable.
The preponderance of the evidence clearly shows that safety belts were available and
specifically ordered to be used when probing and investigating from and above the unguarded
scaffold. In fact the safety belts and life lines were maintained inside the church steeple to be
readily available when these two carpenters had occasion to go out [check] the scaffold.
This was an unusual and demanding job for the respondent. Its managers had the
foresight to engage expert help to assist in designing and engineering the scaffold to be erected
as it progressed from tier to tier of the steeple. Respondent learned there was just no way to
proceed without the use of safety belts and life lines until the scaffold was completed. And the
first time foreman was discovered by respondent’s superintendent violating the instructions he
was called down and reprimanded. He was specifically instructed and cautioned again that the
rule and policy was to wear belt and line on and above the upper level, in the presence of the
compliance officer, by respondent’s president one day prior to being again discovered violating
the rule which eventually resulted in his discharge.
The evidence also shows that respondent was an employer that strove in every way to
operate and maintain safe working condition. There is just no evidence upon which it may be
predicated that respondent should have anticipated or foreseen that its foreman would take
matters into his own hands and violate the rule and policy and permit his helper to do likewise.
Respondent, therefore, dis not, and could not have, know that this employee would not follow
the established and accepted procedure.
The scaffold at the level in question was not completed thus the only known protection
under the circumstances and facts of this case was personal protective equipment in the nature of
safety belts and life lines. This equipment was provided and ordered used. But the foreman of his
own violation, without the knowledge or consent, either expressly or by implication, of the
respondent choose to ignore the plain and unambiguous order of his employer.
The exposure to a fall in this case lies solely upon the employee in utter disregard
respondent’s careful plain and supervision.
Considering all the facts and circumstances here respondent exercised that degree of
reasonable supervision that the law expects or contemplates in like or similar situations.
Therefore, responding should not be accountable for the violation alleged. See Secretary v.
Norman R. Bratcher Co., 2 OSAHRC 725 (1973); Secretary v. Southern Special Products Corp.
3 OSAHRC 599 (1973); Secretary v. Clearwater Power Co. 7 OSAHRC 707 (1974); and
Secretary v. Standard Glass Co. 1 OSAHRC 595 (1972).
CONCLUSIONS OF LAW
1. Respondent knowingly exposed one or more employees to a fall from the scaffold
supporting the material hoist which is violative of 29 CFR 1926.451(c)(13).
2. Respondent did not knowingly expose any employee to a fall from the upper level
scaffold for lack of guardrails when safety belts and life lines were provided and ordered to be
used at this level.
3. The Act does not require constant supervision of employees by management in the
quest to cause adherence to safety instructions.
4. Supervision and enforcement of safety rules which conforms with the attendant facts
and circumstances is sufficient.
ORDER
Wherefore, it is Ordered that:
The citation for non-serious violation of 29 CFR 1926.451(c)(13) be and it hereby is,
affirmed.
The notification of proposed penalty for this non-serious violation be and it hereby is,
modified by reducing the $55.00 proposal in the amount of $30.00 so as to assess the sum of
$25.00.
The citation for serious violation of 29 CFR 1926.451(c)(13) and the notification of
proposed penalty to be assessed therefor in the amount of $500.00 be and each hereby is,
vacated.
J. Paul Brennan, Judge